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Articles Archive
A Survey of Rural Law Developments in Scotland in August 2010 (click to view/download)
02 Sep 2010
This article continues an on-going survey of developments covering different topics affecting rural legal practice. Coverage includes a legal dispute about the offspring from cloned livestock, new consultations by the Scottish Government, new planning advice and guidance, an important decision on the application of business property relief to rural estates, and the High Court's comments when increasing the fines handed out for environmental offences.
Petrol and Pilsner (click to view/download)
17 Aug 2010
A summary of a Licensing Law Update, presented by Graham Dunlop, at the Terra Firma Chambers Local Government Conference on 24th May 2010.
Directors Duties & Responsibilities (click to view/download)
12 Aug 2010
A summary of a talk considering Directors Duties & Responsibilities with particular reference to the Company Pension Scheme (and what to do when it all goes wrong) given by Derek Francis to the Scottish Annual Conference of the Chartered Institute of Taxation on 21st November 2009.
A Survey of Rural Law Developments in Scotland in July 2010 (click to view/download)
09 Aug 2010
This article notes various developments in July 2010, including the first decided case under Section 72(8) of the Agricultural Holdings (Scotland) Act 2003, the passing of the Crofting Reform (Scotland) Bill, a consultation on proposed amendments to the Environmental Impact (Scotland) Regulations, and also notes an earlier English Court of Appeal decision on the meaning of 'waste'.
A Survey of Rural Law Developments in Scotland in June 2010 (click to view/download)
05 Jul 2010
In this article, Robert Sutherland examines recent developments affecting rural legal practice. The article covers new cases, legislation and consultations on proposed legislation which may be of interest under relevant subject headings.
Compulsory Purchase and Planning Gain (click to view/download)
08 Jun 2010
In this article, Maurice O'Carroll looks at the Supreme Court judgement in the case of 'R (Sainsburys Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20' which raises a number of fundamental issues in the context of planning permission and sets out important guidance on the use of compulsory purchase powers. This article originally appeared in SPEL Magazine (June 2010) and is reproduced here with their kind permission.
Outside the Box (click to view/download)
04 Jun 2010
In this article, Steven Walker encourages Scottish lawyers to 'think big' in advance of the forthcoming international conference 'The Arbitration (Scotland) Act 2010: A New Beginning' which is being hosted by The University of Edinburgh on 23 June 2010 in conjunction with the Chartered Institute of Arbitrators, the Faculty of Advocates, The Law Society of Scotland and the Royal Institution of Chartered Surveyors. This article originally appeared in the Journal of the Law Society of Scotland and is reproduced here with their kind permission.
Directors Duties of No Conflict and No Profit (click to view/download)
28 Apr 2010
Andrew Bowen examines director's duties of 'No Conflict' and 'No Profit' in respect of quasi-partnership companies. Petitions brought under section 994 of the Companies Act 2006 (formerly s.459 of the 1985 Act) usually seek to enforce informal arrangements in such companies. In this article Mr. Bowen looks specifically at the case of Allied Business and Financial Consultants Ltd which emphasises the unforgiving nature of the 'No Conflict' and 'No Profit' rules.
This article originally appeared in issue 105 of W. Greens Business Law Bulletin and is reproduced here with their kind permission.
Diligence on the Dependence (click to view/download)
02 Apr 2010
In this article, David Logan explores the issue of practical debt recovery in respect of the Bankruptcy and Diligence etc. (Scotland) Act 2007. This article was originally given as a talk at the Annual Debt Recovery Conference and is reproduced here with the permission of Central Law Training Scotland.
Resolution is the Key (click to view/download)
05 Mar 2010
In this article, Steven Walker discusses the impending Arbitration (Scotland) Act 2010 and its impact on Scottish domestic and international dispute resolution. This article originally appeared in the Journal of the Law Society of Scotland and is reproduced here with their kind permission.
De Facto Directors, Corporate Directors and Lifting the Veil (click to view/download)
10 Feb 2010
In this article, Andrew Bowen looks at an attempt by the Revenue and Customs Commissioners to use the de facto director argument to establish the liability of natural directors of a corporate director in respect of the subject company. This article originally appeared in issue 104 of W. Greens Business Law Bulletin and is reproduced here with their kind permission.
Renaissance of Scottish International Arbitration (click to view/download)
04 Feb 2010
In this article, Steven Walker discusses the Arbitration (Scotland) Act 2010 and how this could create a renaissance of domestic and international Scottish Arbitration. This article originally appeared in the Scots Law Times (29th January, 2010) and is reproduced here with their kind permission.
Challenger To The Trump Development Fails To Obtain Interim Orders (click to view/download)
25 Jan 2010
In this article, Maurice O'Carroll looks at the first piece of litigation to arise following the granting of conditional outline planning permission for the Trump development in Aberdeenshire. This article originally appeared in SPEL Magazine (February 2010) and is reproduced here with their kind permission.
Inheritance Tax - Share and Share Alike (click to view/download)
25 Jan 2010
In this article, Philip Simpson examines the case of Executors of MacArthur (dec'd) v HMRC [2008] which clarifies various issues relating to the valuation on death of shares and other securities. This article originally appeared in Issue 112 of the Trusts and Estates Law & Tax Journal and is reproduced here with their kind permission.
Case Law Spotlight - Forbo-Nairn Ltd v Murrayfield Properties Ltd 2009 CSIH 94 (click to view/download)
22 Jan 2010
Maurice O'Carroll looks at the decision of the Civil Appeal Court of the Court of Session in the case of Forbo-Nairn Ltd v Murrayfield Properties Ltd which clarifies the issue of how commercial contracts ought to be construed. This article originally appeared in Issue 11 (Volume 2) of the Scottish Property Federation Newsletter (published December 2009) and is reproduced here with their kind permission.
Turning The World Upside Down - Fraud and Auditors Negligence (click to view/download)
07 Jan 2010
In this article, Andrew Bowen examines fraud and auditors' negligence in relation to the ex turpi causa principle. He looks at the case of Moore Stephens v Stone & Rolls Limited which raised the issue of whether a company could rely on the fraud of its sole directing mind and will in an action against its auditors for professional negligence. This article originally appeared in issue 103 of W. Greens Business Law Bulletin and is reproduced here with their kind permission.
New Rural Payments Appeals System (click to view/download)
18 Nov 2009
In this article Robert Sutherland outlines the main features of the new system for appeals against unfavourable IACS and other payment scheme decisions, suggesting that there are good reasons why it can be important for clients to get legal advice at an early stage of the process.
Expert Evidence - Role Duties and Responsibilities of the Expert Witness in Court Proceedings (click to view/download)
11 Nov 2009
Robert Sutherland looks at the question of what makes an expert an expert witness for the purposes of litigation, and why it is necessary for a witness to be more than knowledgeable in order to be considered an expert witness.
Pre-Contractual Negotiations and Construction of Commercial Contracts Chartbrook Ltd v Persimmon Homes Ltd 2009 UKHL 38 (click to view/download)
22 Oct 2009
In this article, Andrew Bowen examines the difficulty in applying the rule that prior negotiations are inadmissable in the construction of a commercial contract. He looks specifically at the case of Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38 where the House of Lords was invited to revisit the rule in a dispute about the meaning of a provision valuing development land and, in rejecting that invitation, clarified why the rule should remain. This article originally appeared in issue 102 of W. Greens Business Law Bulletin and is reproduced here with their kind permission.
Ponzi Schemes and Bank Duties (click to view/download)
20 Aug 2009
In this article, Andrew Bowen examines so-called 'Ponzi' schemes, investment frauds in which investors are lured by the prospect of high returns but these returns and the trades on which they are based are fictitious. He looks specifically at the case of So v HSBC Bank Plc [2009] where the Court of Appeal considered claims by investors that the bank owed a duty of care to those investors when they were not customers and whether the bank's breach of duty had been the effective cause of the loss. This article originally appeared in Issue 101 of W. Greens Business Law Bulletin and is reproduced here with their kind permission.
Planning Appeals, Reviews and Judicial Reviews (click to view/download)
02 Jul 2009
In this article, Ralph Smith QC considers new planning appeal and review mechanisms brought about by legislation and regulations in Scotland. This article originally appeared in SPEL Magazine and is reproduced here with their kind permission.
Tax Relief For Gifts To European Charities (click to view/download)
02 Jul 2009
In this article, Philip Simpson discusses tax relief in respect of cross border charitable donations in light of the recent European Court of Justice Case Persche v. Finanzamt Ldenscheid (C-318/07) [2009] STC 586. This article originally appeared in W. Greens Scots Law Times and is reproduced here with their kind permission.
Non-Executive Directors - Total Inactivity and Causation of Loss (click to view/download)
30 Apr 2009
In this article Andrew Bowen examines the liability of non-executive directors in company fraud cases. He looks at the case of Lexi Holdings Plc (in administration) v Luqman [2008] which raises questions about the suitability of family members as non-executive directors and emphasises the difficulty of establishing liability. This article originally appeared in Issue 99 of W. Greens Business Law Bulletin and is reproduced here with their kind permission.
Case Comment - Mitchell v Glasgow City Council (click to view/download)
20 Feb 2009
In this article Robert Sutherland examines the House of Lords decision to over-turn a ruling of the Court of Session which threatened to cause considerable problems for local authorities and other registered social landlords in respect of anti-social behaviour by tenants.
The Commercial Realities of Section 151 of the Companies Act 1985 and Contractual Illegality (click to view/download)
12 Jan 2009
In this article Andrew Bowen examines the prohibition against a company giving financial assistance in relation to the acquisition of its own shares following the Court of Appeal decision in the case of Anglo Petroleum Ltd v TFB (Mortgages) Ltd [2008]. This article originally appeared in W. Greens Business Law Bulletin and is reproduced here with their kind permission.
Land Reform in Scotland in the 21st Century (click to view/download)
16 Oct 2008
This article by Robert Sutherland was first published this month in the Real Estate Law Newsletter of the IBA Legal Practice Division. The article examines the substantial changes which have been made to landownership in Scotland since 2000, and the new legislation during the same period which materially affects the private property rights of landowners in order to bring about a variety of public benefits. The full Newsletter can be found at www.ibanet.org/images/downloads/Newsletters/RealEstateLawOct2008.pdf.
A Solicitor's Duty of Disclosure (click to view/download)
10 Oct 2008
In this article Andrew Bowen of Terra Firma Chambers writes on the the relationship between professional disciplinary proceedings and civil litigation in the context of a partner's duty of disclosure and good faith owed to co-partners following the Court of Appeal decision in Conlon v Simms.
Proposals for Crofting Reform Published (click to view/download)
08 Oct 2008
On 1 October 2008 the Scottish Government published its formal Response to the Final Report of Committee of Inquiry on Crofting. In this article Robert Sutherland considers the main features of the Report and the Government's Response.
Hastings-Bass & his Scottish Friends (click to view/download)
05 Aug 2008
Derek Francis considers the possibilities for review of trustee's discretion, asking whether the English principle established in 'Hastings-Bass' and restated in Sieff v Fox could, without direct authority, be relied upon in Scots law. [This article first appeared in the Scots Law Times of 18th July and is published here with the kind permission of W. Green Thomson Reuters].
Agricultural Holdings Case Law Update (click to view/download)
18 Jul 2008
3 members of Terra Firma Chambers presented a Seminar to solicitors in Aberdeen on 26 June 2008. Robert Sutherland spoke about cases which had been decided by the Court of Session and the Scottish Land Court since August 2007. This article is a digest of the cases which were discussed and was distributed at the Seminar to accompany his presentation.
Challenging the Financial Services Ombudsman (click to view/download)
07 Jul 2008
In this article, Andrew Bowen of Terra Firma Chambers, looks at the Financial Services and Markets Act 2000 in the context of a challenge by financial advisers to determinations of the Financial Services Ombudsman in Bunney v Burns Anderson plc [2008] 1 BCLC 17. This article originally appeared in W. Greens Business Law Bulletin and is reproduced here with their kind permission.
Variation of Private Trusts (click to view/download)
04 Jul 2008
This is a paper based on a talk given by Derek Francis on behalf of TrustBar (the Faculty of Advocates Trusts Fiduciaries and Executries Bar Group) of which he is chairman to members of Maclay Murray & Spens private client/ taxation departments in Glasgow on 19th June 2008. The paper looks at the nature of trust variation notional agreement with certain consents supplied by the court. It considers whose consents the court may supply; jurisdiction with respect to non-Scottish trusts; where judicial variation is needed where resettlement/ demanding of a denuding is possible/ not possible; situations other than beneficiary incapacity precluding resettlement; the techniques of variation; what is needed by way of instruction/ vouching; situations in which judicial variation may be desirable especially the opportunity extended to October 2008 of creating substitute s. 49C IHTA transitional serial interests; parties and representation; the problems posed by trustees petitioning; the distinction between beneficiaries including defeasible and contingent beneficiaries and those with a spes successionis and which persons with a spes (e.g. as next of kin) require to consent.
Marathon Litigation, Directors Disqualification and Human Rights (click to view/download)
03 Jul 2008
In this article, Andrew Bowen of Terra Firma Chambers, discusses long-running litigation, directors disqualification and human rights in the context of the recent decision of the Court of Appeal in Re Blackspur Group plc (No.4). This article originally appeared in W. Greens Business Law Bulletin and is reproduced here with their kind permission.
Opportunities in Advocacy & Dispute Resolution (click to view/download)
04 Jun 2008
Stephen ORourke was one of the speakers at the 2008 annual conference of the Scottish Young Lawyers Association, organised by the Law Society of Scotland and held at Airth Castle, Falkirk. The topic was career choices for young lawyers and access to the Scottish Bar. The following is a summary of the key points from the talk.
Part IIA Cases on the Contaminated Land Regime, and Future Legislative Changes (click to view/download)
27 May 2008
In this talk, given at the Brownfield Briefing Scottish Legislative and Regulatory Changes Conference in Glasgow on 29 January 2008, Robert Sutherland considers the most recently available statistics concerning the number of determined contaminated land sites in Scotland and England before turning to examine how the courts have interpreted the Part IIA of the Environmental Protection Act 1990 and highlights changes to the treatment of contaminated land under the Landfill Tax regime. The cases considered include Circular Facilities (London) Limited v Sevenoaks District Council, Environment Agency v Hillridge Limited and R (on the application of National Grid Gas Plc (formerly Transco Plc)) v Environment Agency.
B and B 2 Real Burden 0 (click to view/download)
10 Apr 2008
Can you stop your neighbour starting a business next door ? Find out the latest episode of Barker v. Lewis here.
Who pays for the cost of cleaning up contaminated land? (click to view/download)
10 Apr 2008
In R National Grid Gas plc v Environment Agency, 2007 UKHL 30, (27 June 2007) the House of Lords has reversed the original decision and held that the privatised utility company (and its shareholders) did not inherit any liability for the clean up costs associated with the polluting activities of its predecessor businesses. Robert Sutherland, Advocate, discusses the potentially significant implications for local authorities who might be faced with these liabilities where no other person can be fixed with a statutory liability for these costs.
Wind farms policy change (click to view/download)
10 Apr 2008
Steven Stuart discusses the significant policy change in respect of wind farm developments introduced by Scottish Planning Policy 6 on Renewable Energy.
Advance to Free Parking (click to view/download)
09 Apr 2008
David Bartos, Advocate, discusses the recent House of Lords case Moncrieff v. Jamieson.
The disappointed beneficiary (click to view/download)
21 Mar 2008
Nicholas W Holroyd suggests some remedies that may be available, under Scots law, to the disappointed beneficiary. This article was first published in the STEP Journal, the magazine of the Society of Trust and Estate Practitioners, with a readership of over 24,500 practitioners and key regulatory, government and industry figures. To find a STEP practitioner, please go to www.step.org or call 44(0)20 7838 4885.To subscribe to the STEP Journal, please go to www.step.org or call 44(0)1423 85 11 50.
APR and BPR An Advocates View (click to view/download)
21 Mar 2008
In a paper delivered at the STEP Spring Conference, 2007, Philip Simpson discusses of agricultural and business property relief from inheritance tax, and in particular of the sources of evidence that might be needed to persuade a court that relief is due.
Section 70, HMRC and the Scottish courts (click to view/download)
21 Mar 2008
Article by Philip Simpson, advocate, barrister and chartered tax adviser. This article appeared in the February 2007 issue of Tax Adviser.
Section 70(1) of the Taxes Management Act 1970 provides, in short, that where tax is in arrears a certificate issued by an inspector that tax is due, and a certificate from a collector, that it has not been paid, 'shall be sufficient evidence that the sum mentioned in the certificate is unpaid and is due to the Crown'. The view of HMRC in Scotland has been that where a certificate is issued under this provision a taxpayer wishing to challenge his liability to pay the amount in the certificate must not only explain why it is wrong, but also have the court set the certificate aside. In the recent case of Inland Revenue Commissioners v Findlay McClure & Co, the Court of Session has held this view to be incorrect.
An Inspector calls the new HMRC criminal investigation regime (click to view/download)
21 Mar 2008
Finance Act 2007 conferred new, uniform powers of investigation on HMRC, following a consultation process. The powers relate to situations where HMRC suspect criminal activity, and allow HMRC officers to apply for production orders and entry and search warrants, to detain, question and fingerprint individuals (including, in certain circumstances, to take them to HMRC offices), and ultimately to arrest suspects. This article discusses these powers and how they might be applied, highlighting some of the problems that not only individuals against whom the powers are applied but also HMRC may come across in practice.
Arctic Systems Result and fall-out (click to view/download)
21 Mar 2008
The House of Lords has decided Jones v. Garnett (Arctic Systems) in favour of Mr Jones overall, while agreeing with HMRC on the issue of whether the arrangement constituted a settlement for the purposes of the settlements legislation. In particular, the House of Lords has held that a gift consisting in ordinary shares is not a gift wholly or substantially of income. This article analyses the opinions in the House of Lords and the Government response to the decision, and provides some practical advice for tax advisers.
07 Sep 2010