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21st Century Bar rides again

15 January 18

The eagerly awaited return of the conference presented by the Faculty of Advocates for members of Faculty and the in-house legal community did not disappoint

by Graeme McWilliams

More than 60 in-house lawyers and advocates gathered in Edinburgh on Friday 8 December to celebrate the return of the 21st Century Bar Conference, this always popular joint event organised by the Faculty of Advocates.

This annual bar conference for in-house lawyers was devised in 2000 by Colin Anderson, then vice chair of the In-house Lawyers’ Group (and now a member of the Law Society of Scotland’s board and Council), and Lord Malcolm, then Vice Dean of Faculty, and has proved very popular with Faculty members and in-house lawyers ever since. 

This was the 16th such event, marking a great return to form, and treating us to excellent talks by two judges, four QCs and four senior advocates.

Chaired most ably throughout the day by Susan O’Brien QC, the introduction and welcome to the Faculty was given by Roddy Dunlop QC, treasurer of the Faculty, with Angela Grahame QC, Vice Dean of Faculty, summing up at the end and proposing the thanks.

The keynote address by Lady Dorrian, Lord Justice Clerk, updated us on vulnerable witnesses, digitisation of the courts and enhanced case management.

We all have a part to play in securing the efficient disposal of business in our courts. Management of court business is a constant demand, needing to be updated in light of the specific demands of contemporary litigation in the onward march of society. Reform is not complete and innovations continue. 

An entirely electronic process is what the public expect, and progress made will help to increase accessibility and efficiency. We need to add greater use of technology and look at these issues anew, harnessing the opportunities presented, moving away from what we have done in the past. So, boxes of books and case papers can be replaced with memory sticks.

To maximise the development of a digital court, judges need to be more proactive, monitor progress in a case, and make sure that they focus at an early stage on the real issues in dispute in the case, setting aside anything irrelevant or minor. Cases must be dealt with in a manner which delivers high-quality decisions, within a reasonable time and at a reasonable cost.

Justice must be delivered promptly, while the effect of the court’s decision can still deliver benefit to the parties and society. The courts must be accessible and responsive in a manner which is truly reflective of the realities of modern life. We all have a role in making sure that these reforms actually work; that they produce real and sustainable benefits. Changes in law and practice take time, imagination, thought and patience, which are worthwhile if, at the end of the process, we have a modern, adaptable, efficient and accessible legal system. 

David Sellar QC brought his usual charm to an entertaining review of a quartet of recent company law cases, which raised aspects of company law that are both fundamental and significant in everyday practice. Special mention was also made of the significance of statutory interpretation, and the fact that company law is still not an exclusively statutory area of law.

Lord Tyre then provided a personal update on the workings and direction of the Commercial Court, as his swansong on leaving the court after four and a half years. Special mention was made of the development of pleadings, discovery, adapting to changing commercial litigation circumstances, the challenge of digitisation, and choosing Scots law in contracts.

Usman Tariq, advocate, Advocate of the Year at the 2017 Law Awards of Scotland, provided a very entertaining canter through some recent intellectual property cases. 

Next, David Hay, advocate, led us on a whistle-stop tour of some recent employment cases, which related to equal pay, employment tribunal fees, holiday pay and indirect discrimination, and the jump in employment claims since the abolition of  tribunal fees earlier this year.

After some lunch and networking, Anna Poole QC provided a standout public law talk, which was both witty and provocative, with an opening slide of five very different areas to be considered: money, booze, Brexit, football and sex! 

Ross Anderson, advocate, presented another of his very welcome and detailed updates on recent contract law cases, including further commentary on contractual notices.

Jonathan Mitchell QC adopted an original and chilling new angle to GDPR – what of the data relationship between solicitor and counsel, what about client record retention, and the lack of clarity on the implications of GDPR for legal privilege and confidentiality? The ICO may provide further guidance on these practical issues, and there is further information currently available from the ICO, the English Bar Council, and the Law Society of Scotland etc.

The conference closed with James Mure QC and Peter Sellar, advocate, providing a hot-off-the-press update on the implications of Brexit for in-house lawyers, with a watch- this-space warning. Like something from the Wizard of Oz, nothing is agreed until all is agreed. And the four Brexit issues which need to be considered by in-house lawyers are: status, competition law, contracts and employment. While in-house lawyers in Scotland currently enjoy legal privilege in the UK and limited legal privilege in Europe (courtesy of the Akzo Nobel case), after Brexit they will only have legal privilege in the UK.  

In closing, Angela Grahame QC, Vice Dean of Faculty, suggested that this event could be renamed as the 22nd Century Bar Conference in 2018!

We hope that this joint conference will continue to be an annual flagship event for our in-house legal profession.

Graeme McWilliams, convener, In-house Lawyers' Committee

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