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Letter: difference in principle

7 Nov 18

Yes, Scots law differs from English in being based on principle

by Branislav Sudjic

I enjoyed the report of your interview with Lady Hale (Journal, September, 12). I do however wonder whether Lady Hale is right to suggest that there is little difference between the approach of Scots as opposed to English lawyers. The issue is very much the point you touched on.

I was taught at Edinburgh University that Scots law was based on principle, unlike the common law jurisdictions in much of the English-speaking world. The difference of approach is very much with us and, I suggest, highlighted in McDonald [2017] UKSC 52, which involved interpretation of the 1985 Family Law (Scotland) Act.

The clue is in the first paragraph of the judgment: “This appeal raises questions of statutory interpretation”. My understanding is that the Act laid down general principles for distributing matrimonial assets on divorce, rather than strict statutory rules. The issue was whether a pension, the greater portion of which had accrued before marriage, was to be considered in its entirety as matrimonial property. The Supreme Court held that it was. This seems to sit uneasily with the “source of funds” approach in dealing with funds of one party acquired before marriage. The judgment then seems to go back on itself. Paragraph 32 reads: “That does not mean, of course, that the value of an interest in a pension arrangement must be shared equally”.

The issue was decided at first instance by a very experienced sheriff whose decision was confirmed, albeit by majority, in the Inner House. In moving from general principles to “statutory interpretation” it seems the Supreme Court has adopted an English approach to Scottish legislation.

I found it very hard in a current case I am involved in to explain to my client that whilst three Scottish judges came to a decision in his favour in Edinburgh, the case was turned on its head in London.

Branislav Sudjic, Black & Guild, Kirkcaldy

 

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