News In Focus
9 May 2008
Court marks Lord Macfadyen's passing
A fulsome tribute to the late Lord Macfadyen was paid by the Lord President in the Court of Session, following the judge’s untimely death from cancer at the age of 62.
Lord Hamilton narrated that following a “prize-laden” career at Glasgow University, Donald Macfadyen was admitted to the Faculty of Advocates in 1969 “at what was even then the remarkably early age of 23”. He quickly established a substantial practice, notable as much for its width as for its depth. He served as an advocate depute from 1979 to 1982, took silk in 1983, and in 1994 became one of the first to be appointed a temporary judge of the Court of Session. The following year he was appointed as a Senator of the College of Justice. He was advanced to the Inner House in 2002, frequently presiding over Extra Divisions of the Court of Session and appellate sittings of the High Court – “as well as contributing fully and incisively to discussion and deliberation when another took the chair”.
His interests, the Lord President continued, were wide ranging. He chaired the Judges’ Forum of the International Bar Association. He was General Editor of the looseleaf Court of Session Practice, and a judicial member of the Scottish Council of Law Reporting. He had a particular interest in history, in public affairs, and in the buildings of Edinburgh, serving from 2001 until this year as chairman of the council of the Cockburn Association (The Edinburgh Civic Trust).
“But no mere list of his professional and other achievements can do justice to the Donald Macfadyen whom so many of us knew as a judge and as a man. One can debate at length what are the qualities of a good judge. The Bangalore Principles (formulated under the auspices of the United Nations) identify six characteristics as being of primary importance. They are: independence, impartiality, integrity, propriety, equality (by which is meant equal treatment of all persons and classes), and, lastly, competence and diligence. In all these characteristics Donald Macfadyen excelled. He not only had a sound grasp of legal principles and of decided authority, but also displayed on the bench a patience and a tolerance of manner which made him very special.
“His delivered opinions were both profound in content and elegant in expression. They were also very numerous. A search of the Court of Session and High Court website discloses that, since its inception in early 1998, there are posted sub nomine Lord Macfadyen no less than 401 opinions – either delivered by him personally or to which he was a party. In the earlier years these were principally single judge opinions, many of them in commercial actions where his reputation was of the highest. By way of example, he did much to illuminate in its early life the complex world of adjudication in building contract disputes, his latest judgments in that arcane field always being keenly awaited by practitioners. In the last 12 months of his life he was party to more than 40 appellate opinions; more than half of these were framed and delivered by himself. His enthusiasm, energy and courage, against the background of serious illness, were remarkable. Although cut off with much further promise unfulfilled, he has bequeathed to the law of Scotland a legacy of jurisprudence to which, I am convinced, future generations of lawyers will regularly look for insight and for illumination.”
Lord Hamilton added that Lord Macfadyen, who had an exemplary sense of fairness, freely gave of his time to advise would-be advocates and solicitor advocates in the techniques of court craft; and “To me, as Lord Justice General, his advice was invaluable – not least in sentencing matters where, as the former Chairman of the Sentencing Commission for Scotland, he was uniquely placed to help, as he did, with the identification of cases which would benefit from guideline judgments.”
In private life he was a gentle and essentially private person, devoted to his wife, two children and three granddaughters. The Lord President extended the court’s sincere condolences to them and to all Lord Macfadyen’s family and friends. He concluded:
“His untimely passing deprives the courts of Scotland of a judge of the highest calibre, and his family and friends of one whom they held most dearly. He will indeed be sorely missed.”