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Views from the bar

21 January 19

A regular fixture between the Faculty of Advocates and in-house lawyers, the 21st Century Bar conference is marked by its in-depth presentations on a range of topics. The 2018 event was no exception

by Peter Nicholson

The 21st Century Bar conference has become something of an institution as between the Faculty of Advocates and the In-house Lawyers’ Committee. While the bar takes on the presenting, solicitors who attend gain networking opportunities along with insights on law, practice and sometimes policy from the papers delivered.

Opening the 2018 conference on 7 December, the chair, John D Campbell QC, set the scene by commenting that the pressure on the bar today “is greater than it has ever been”. There was a constant refrain around the country of accessibility to counsel, and he suggested it was time for a further look at the “somewhat dated” code: “The direct access rules are positively a deterrent.”

ADR – how far?

Lord Clark’s keynote address tackled the growing pressures to resolve disputes by alternative means to court action, and the future of litigation in that climate. Such methods, he noted, have a long history in Scots law – arbitration features in the 14th century Regiam Majestatem – but certainly since Lord Gill’s civil court review, and following developments already taking place in England & Wales, there has been a more concerted effort to divert away from the Court of Session cases that do not really belong there.

The court’s Arbitration Judge regarded the Scottish Parliament Justice Committee report of October 2018, which came out strongly in favour of ADR, as “potentially significant”. The committee did not want to undermine the benefits of alternative methods by attempting to make them compulsory, but proposed mandatory dispute resolution information meetings, and possible regard to Ireland’s Mediation Act 2017 as a model.

But he rejected the “Dad’s Army” view that “we’re all doomed” (as litigators). ADR must have its place, but the Justice Committee proposals would not lead to a huge difference in the uptake of litigation. The concept of access to justice was critical, and people did not always want a private compromise. Further, some cases were not suitable for ADR, and courts were needed for the development of jurisprudence. 

“It is not appropriate to go into court thinking the court doesn’t want you to be there,” he observed. However, the court “has to be a suitable and attractive venue with the right forms of procedure”. To that end, user groups such as that for the Commercial Court were valuable. The Arbitration Court User Group (on which he sits) was not there to promote arbitration as an alternative, but to see how court procedures interacted with it. 

People would still go to court; skilled legal practitioners would still be required, for example to take evidence; and while there had been a decline in Court of Session business as envisaged by Gill, the figures were now “levelling out”. 

Clark also queried whether procedures such as adjudication were increasingly becoming legal rather than technical processes: lawyers now comprise 42% of registered adjudicators, compared with 35% in the previous year.

Tackling the B-word

The impact of Brexit could not be ignored, nor was it, though given the ever-changing scene there is only so much that can usefully be said about an event in early December. Thus James Mure QC had maybe drawn the short straw in being tasked with providing an overview of the Withdrawal Agreement as reached, though its fate is a matter on which we are no wiser as this edition goes to press. Perhaps an early succeeding edition will be able to explain where we stand. Or perhaps not.

Morag Ross QC was however able to focus on public law issues with a longer shelf life, discussing the implications of the Inner House rulings in the Wightman article 50 case, and their effect beyond the judgment to be pronounced by the EU Court of Justice the following week.

First of all, she noted the comments of the Lord President that the scope of judicial review was wide and always developing, that (despite the firm opinion of the Lord Ordinary to the contrary) the matter was neither academic nor premature, and that the court was only being asked to declare the law, not to interfere with parliamentary privilege. Also significant was the EU advocate general’s observation that the court could not avoid a question because the answer could be read from a political rather than a legal perspective.

Among the points Ross took from the Court of Session rulings were:

  • The permission stage is a sift, but not an insurmountable barrier: there should be a “real prospect” of success, but it does not have to be “probable”.
  • Protective expenses orders had been obtained in the Outer House at common law, on the test in the Court of Appeal Corner House ruling ([2005] EWCA Civ 192) – but by the additional parties only, as the original petitioners had resources.
  • The speed of the proceedings was worth noting, as the application was first lodged only on 19 December 2017 and had been through two Inner House appeals before being decided by the full Luxembourg court on 10 December 2018. The courts can move fast when they want!
  • The substance of the ruling, as set out by Lord Drummond Young, “could change everything”, or could turn out to be confined to its circumstances. Founded on the purpose of the rule of law, could it open the way for more advisory opinions?

Data breaches and class actions

Another emerging field of law was dealt with by Jonathan Mitchell QC, who tackled questions and problems in practice arising from data protection law in 2018. He contrasted litigation taking place in England & Wales, such as the class action against supermarket chain Morrisons following the data breach by a disaffected employee, in which the court “worked backwards from the desired result” in rejecting Morrisons’ arguments, with the attitude of the Scottish courts, which have not to date been sympathetic to this approach. He further doubted whether you would have a representative body in Scotland bringing a civil action for a data protection breach, in view of the conditions that are applied.

As for group proceedings, there is “no proper forum” in Scotland. New provisions for class actions might solve the problems, but there is no sign yet as to when the Scottish Civil Justice Council will have completed its work.

One issue it has to address is the choice of “opt in” or “opt out” actions, the former being the permitted route in England except that competition law allows the latter.

However even in England the courts have set limits – the recent case against Google (for subverting privacy protections on iPhones) failed for want of allegations of loss, and as an improper use of class actions where the class could not be defined. According to Mitchell, if a “similarly unfriendly” attitude is adopted in Scotland, “we will fall back into the black hole of claims that can’t be justified”.

A model IP court?

Lessons from practice south of the border were also sought to be drawn by Usman Tariq, advocate, who addressed the question of what lessons the specialist IP court in Scotland could learn from the Intellectual Property Enterprise Court, which supplanted the less successful Patents County Court in 2013. Among its features are proactive case management, with strict limits on extensions of time, control of timings at trials, disclosure of evidence and limits on cross-examination; “genuine review” of cases at case management conferences; and caps on costs and damages. Lower value claims go on the small claims track.

For Tariq, the “defining feature” of IPEC’s success is the cap on costs, at £50,000 plus VAT on questions of liability, with additional limits applying at particular stages. A review concluded that the cumulative effect of these features had been highly significant in increasing the number of cases brought to the court, and making IP holders more confident about going against potential infringers – increasing access to justice, in other words – though there is some risk of it becoming a victim of its own success, with a growing queue of cases awaiting trial.

Tariq noted that IPEC court fees for raising proceedings are much higher than in the Court of Session, which provides an opportunity to promote Scotland as a forum. However, the real difference between IPEC and the Court of Session IP court is the capped recoverable costs and the case management available in the former. And although pursuers prefer the Court of Session to the sheriff court for the expertise available, the monetary limits that now apply exclude cases that could be brought to IPEC. 

The IPEC model could work here, he concluded, but it would need to be available for all IP business – which would not, he contended, open the floodgates. Should we not look more closely at how it could be done?

Specialist knowledge

The quality of presentations at 21st Century Bar is uniformly high, some of them going into considerable detail – such as the company law update from David Sellar QC, who however was able to open his talk with a quartet of cases on that fundamental concept, corporate personality. He followed up with appeal decisions on articles of association, share purchase agreements, and the latest pronouncements in the saga of Lehman Brothers, which took us towards the field of insolvency law. This subject in turn was taken up by Elisabeth Roxburgh, advocate, who was able to focus on a number of Scottish cases including Grampian v Carnbroe on adequate consideration, Peart on interdict of sequestration, McGleish on a debtor’s rights, and the Supreme Court decision in Dooneen on assets coming to light following a trustee’s discharge.

Employment law was the remaining topic covered, with Safeena Rashid, advocate providing an update on developments, along with an attempt to predict what changes could be expected following Brexit. These, she suggested, might not be significant in the short term, but the longer term outlook was more uncertain. Meanwhile, legislation to look out for is the Parental Bereavement (Leave and Pay) Act 2018, to come into force by April 2020, which allows two weeks’ leave on a stillbirth or the death of a child under 18 years; and the settlement scheme for EU nationals, still to be finalised, will become of significance. Recent cases she discussed included those on who qualified as a “worker”, a category included in those affected by changes to the rules on payslips from 6 April, from when the payslip must include a note of the total hours worked where this is relevant to pay.

A summary like this cannot really do justice to a day of such concentrated tuition – though we do publish elsewhere in this issue (p 18) Lord Ericht’s instructive comments on the Commercial Court. Suffice to say that it would be difficult to pack much more into a single day, and in-house lawyers should keep an eye out for the 2019 version as likely to continue the pedigree of this series, which has run almost every year to date of the century it heralds. 

Peter Nicholson, Editor

Deal of the Century?

In-house Lawyers' Committee member Sharon Wares offers a personal impression of the conference

Many thanks to the Faculty of Advocates for the 21st Century Bar Conference which was held on Friday 7 December 2018 at their historic Mackenzie Building, Old Assembly Close, Edinburgh. In-house lawyers are able to instruct the bar direct, and this is a great opportunity for us to hear from the Faculty’s rising stars and acknowledged experts as well as the bench.

The conference was first organised in 2000, and in 2015 it even included a “ghost” tour of Parliament House after the event. My tour was led by the Faculty’s then Director of Training and Education, David Parratt QC, and was one of the most memorable events I have ever attended. He was a brilliant storyteller, and if I had done a blog then I think I would have been tempted to call it “Death and the Maiden”; however that title is taken already by a film. I didn’t know before the tour that the Maiden, the Scots guillotine, had been kept and used down in the depths of Parliament House, which has been said to have something of an atmosphere.

The annual programme and the quality of the speakers make it an unmissable treat. In 2016 the keynote speaker was Lord President Carloway; in 2017, the Lord Justice Clerk, Lady Dorrian; and in 2018 it was Lord Clark. In 2017 Lord Tyre also addressed the conference and this time we heard from Lord Ericht.

John D Campbell QC co-chaired the conference with warmth and charm. Distinguished members of the Faculty are the mainstay of this excellent conference, with its important and specialist subjects carefully chosen. I know that Faculty members in the audience also really enjoyed listening to their colleagues and appreciating their depth of expertise: David P Sellar QC on company law; Usman Tariq, advocate on intellectual property law (and who could ever forget the entertaining cases in 2017 including discussion of “Brewdog” and “on stranger tides”); Safeena Rashid, advocate on employment; Morag Ross QC on public law, including an expert insight into the case on article 50 from our courts, which made history; Elisabeth Roxburgh, advocate on insolvency law; Jonathan Mitchell QC on data protection; James Mure QC on Brexit – he mentioned how there is a Brexit game on sale, and can we do better than the politicians? The other co-chair, Gerry Moynihan QC also led the thanks and the lunch was sponsored by McNeill & Cadzow.

Access to justice and how best to assist parties to resolve their disputes and get justice was at the heart of the day. Lord Clark spoke about the increasing requirement for solicitors to advise on alternative dispute resolution. Lord Clark and Lord Ericht both referred to change in other court jurisdictions, and it is clear that change is a constant and we need to be aware of what is happening at home and away. Courts are central to justice, and the courts can and do make enabling innovations in court rules, and listen to and help parties to get to the nub of the dispute; and the courts are firmly open for business.

Lord Ericht of the Commercial Court stated that the court's ethos is service to the business community and to provide a method of dispute resolution which serves our commercial needs. He encouraged any in-house lawyer, particularly in commerce and industry, who is interested in joining the consultative committee on commercial actions to send an email to the Commercial Court clerk.

Usman Tariq and Jonathan Mitchell QC also encouraged the courts to consider some changes in their procedure to enable further actions in the courts. Tariq described the IPEC rules for intellectual property cases, and Mitchell described how changes in court procedure would assist in having class actions for data protection breaches. During the conference many of the speakers injected humour into their speeches, including the Brexit talk, and I think that is so important when we are aware that history is being made.

Not only did we have the opportunity to listen and ask questions of the speakers at the conference, but we were able to meet them at coffee breaks and lunch. Lord Ericht was very engaging and talked about choosing his judicial name at short notice. The coffee and lunch breaks gave us all a chance to speak to some current and past ILC/ILG members, and other in-house lawyers, retired lawyers and advocates who have supported this event over the years. It was great to speak to Ramsay Milne from Scottish Water and get some useful feedback on the work of the ILC!

I’m really looking forward to next year’s conference, and to reading more about this year’s in the January Journal article.

Sharon Wares, solicitor, The Highland Council and In-house Lawyers' Committee member

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