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Book reviews

17 March 14

Reviews of The Licensing (Scotland) Act 2005 (Cummins); The Law of Corporate Insolvency in Scotland (St Clair and Drummond Young)

by Tom Johnston, Iain Hutcheson (review editor: David J Dickson)

Licensing (Scotland) Act 2005

3rd edition

Jack Cummins

PUBLISHER: W GREEN (Greens Annotated Acts)

ISBN: 9780414018204

PRICE: £85

Thirty five-plus years have elapsed since a piece of licensing legislation was first subjected to the Greens annotation treatment, by a sheriff and a town clerk. That was the much criticised 1976 Act. In its 30 year reign, it saw four editions of the equivalent of this book. By the end of 2014, within five years of its coming into force, this piece of legislation will require a fourth edition of its own as we are scheduled to endure the fifth piece of licensing legislation inside a decade.

But this review must focus on the qualities of Jack Cummins's book, not on the failings of the Scottish legislature. When researching for his first venture into authorship and seeking for a definition of “licence”, online research advised “see Dog”. (For the benefit of the younger generation I should point out that, in order to be legal, ownership of a canine companion carried an annual tax of the equivalent of £0.13.) In other words, the field of Scottish licensing law was new jurisprudence.

For the development of this area of law, we owe a huge debt to Jack Cummins. The practice of licensing is a little schizophrenic. Those with a successful track record of appearances before licensing boards will acknowledge they draw more on the skills of the public speaker rather than those of the litigator – one reason why most advocates are disastrously bad at board hearings. But a licensing appeal requires the same attention to detail, forensic skill and tactical awareness as any foray into high stakes litigation. Academic analysis, on the other hand, requires yet another skillset, especially if one’s writings have the gravitas to be taken seriously in the country’s highest courts.

There is one man, and probably only one man, who has the mastery of all three of these skills, and that is the author of this book. Third editions can be tired affairs, like a meal on 27 December – leftovers from the previous days’ feasts with a few fresh morsels thrown in as disguise. Nothing could be further from a description of this work. In fact much of the content of the previous two editions has been excised altogether. While it was important for our initial analysis of the 2005 Act to understand the transition from 1976, Cummins has recognised it is time to move on.

Though he shares our exasperation with the inadequacies of this Act, and the unholy guddle which represents the two main attempts at its reform, his commentaries are as erudite as they are succinct, as informative as they are pithy. For example, writing of the farcical s 33: “The transfer procedures in the Act have attracted the opprobrium of the licensed trade, its advisers and solicitors employed by local authorities, matched only by that which greeted the now-abandoned stated case procedure for appeals.” One can discern the headshaking when reading the commentary on how the off-sale hours came to be 1000 (as opposed to 0800 under the old law) to 2200. “It is impossible to divine the logic behind this step.”

Two things are certain. First, there remain a multitude of unanswered questions about the meaning and true interpretation of the 2005 Act. Secondly, if there are answers to be had, you will either find them in this book, or at the very least find clues to the answer, if there is one. This is a very fine piece of work – it is the greatest of shames that Government ineptitude will require a fourth edition all too soon.

Tom Johnston, Young & Partners


The Law of Corporate Insolvency in Scotland

4th edition

John St Clair and Lord Drummond Young

PUBLISHER: W GREEN

ISBN: 9780414017559

PRICE: £162

Previous editions of St Clair and Drummond Young’s Law of Corporate Insolvency in Scotland have been an essential and invaluable resource for those dealing with this area of law. This latest edition is no exception. The edition is again a significant publication which benefits greatly from the authors’ extensive experience in this area.

Since the last edition of this book (3rd ed, 2004), the world economy has, as we all know, been subjected to financial crisis, and the impact of this crisis in the field of corporate insolvency law is described. As the authors themselves rightly identify, the financial crisis has highlighted how central are a country’s corporate insolvency laws to the proper and efficient working of a modern capitalist economy and to the stability of the system itself.

There are interesting introductory chapters dealing with the history and context of Scottish corporate insolvency law, including an examination of its defining objectives and also the impact of human rights legislation.

As one would expect, insolvent liquidation and administration are examined in considerable practical detail – including the legal effects of winding up; the appointment, removal, resignation, and release of the liquidator; their title, status, and functions; their duties and powers; the backup powers of the court; stages in insolvent liquidations; the history and background of administration; the commencement and effect of administration; the process of administration; and how administrations end. There are valuable commentaries on “pre-pack” administrations and, in particular, court and out-of-court appointment of administrators.

There are also very useful chapters on receivership and voluntary arrangements, including the general nature of floating charges, the legal effects of the crystallisation of floating charges, and receivership; the appointment, resignation, removal, and remuneration of receivers; their duties and powers; the history and background to company voluntary arrangements (CVAs), CVAs under part I of the Insolvency Act 1986; CVAs under the Companies Act 2006; and compromises, arrangements, and compositions at common law.

The authors also examine significant legal issues arising in corporate insolvency, including directors’ liabilities, diligence, challengeable transactions, employment law (including TUPE) and pensions, and retention of title, all of which are of great assistance to the practitioner.

As with previous editions, the various sections are set out in a well-organised and logical manner, and commentary on any particular topic can be located easily by the reader.

This is an excellent book, and is an essential resource for all who deal with, or are interested in, this area of the law. Its recommendation is made without hesitation.

Iain Hutcheson, Brymer Legal Ltd, Dundee and Edinburgh.

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