Ampersand Stable of Advocates

Determination issued in Fatal Accident Inquiry of John Johnston

Fri, 13 Jan 2012 00:00:00 GMT

Sheriff Ian Dunbar, Sheriff of Tayside, Central and Fife at Dunfermline has just issued his determination in the Fatal Accident Inquiry into the death of John Johnston, which concerned a complication arising from PEG tube insertion and infection of a Total Parenteral Nutrition Line during a hospital admission. The Sheriff made formal findings only.

The case is interesting in that a Fatal Accident Inquiry was held to meet the concerns of the family of John Johnston but in his determination the Sheriff questioned whether an Inquiry was necessary given both the purposes of an Inquiry in terms of the Act and the whole medical picture. It can be viewed in the context of the recent case of Emms v Lord Advocate [2011] CS1H 7, also concerning a PEG tube, in which the reclaimer’s petition for judicial review of a decision to order an inquiry under section 1 (1) (b) of the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976 was refused as not being in the public interest.

The Sheriff’s determination may be found here.

Fiona Lake of Ampersand appeared for Fife Health Board.

Irritancy of Commercial Leases – validity of pre-irritancy warning notices

Tue, 20 Dec 2011 00:00:00 GMT

The Sheriff Principal of Lothian & Borders has just issued her judgment in the case of Scott v Muir, a case which concerned the validity of pre-irritancy warning notices which had been served by the landlord pursuant to section 4 of The Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.

The decision considers what is required for an irritancy warning letter to comply with the mandatory requirements of section 4 of the 1985 Act in particular (a) how the notices should specify the period in which payment had to be made and (b) what constitutes real notice to the tenant of what he had to do in order to avoid irritancy of the lease.

The case provides an interesting discussion of an underdeveloped area of the law in respect of commercial leases. It is an important decision for anyone involved in the drafting of irritancy notices.

The Sheriff Principal’s judgment may be found here.

Isla Davie and David Thomson, both of Ampersand, appeared respectively for the landlord and the tenant

Latest Supreme Court guidance on “business common sense” in relation to contractual construction

Wed, 07 Dec 2011 00:00:00 GMT

The Supreme Court has today issued its judgment in the case Aberdeen City Council v Stewart Milne Group Limited.

The Council had sold an area of land to Stewart Milne Group Limited for an initial price, which was then subject to a possible uplift (the “Profit Share”) in the circumstances set out in the missives of sale. Those circumstances were (i) the service of a notice “buying out” the Profit Share; (ii) the disposal of the land by Stewart Milne Group Limited entering into of a lease in respect of the land for more than 25 years; and (iii) the disposal of the land by sale by Stewart Milne Group Limited.

Stewart Milne Group Limited sold the land to a related company for a price which the Council contended did not reflect the open market value of the land. It was argued for Stewart Milne Group Limited that the “Profit Share” fell to be calculated by reference the “Gross Sale Proceeds” actually received by it (which would mean there was no “Profit Share” to be paid to the Council at all) whereas the Council submitted that, in the case of a sale otherwise than for the open market value, on a proper construction of the missives, the open market value was to be used in calculating the “Profit Share” rather than “Gross Sale Proceeds” actually received by Stewart Milne Group Limited.

The Supreme Court dismissed Stewart Milne Group Limited’s appeal from the Inner House of the Court of Session. The leading judgment, delivered by Lord Hope DPSC, provides useful guidance in relation to the role of “business common sense” as part of the process of contractual construction. A copy of the Supreme Court judgment (reported as Aberdeen City Council v Stewart Milne Group Limited [2011] UKSC 56) can be viewed here (opens as PDF).

Craig Sandison QC and David Thomson, both of Ampersand, appeared for the successful Respondent, Aberdeen City Council.

& another thing...

Fri, 28 Oct 2011 00:00:00 GMT

The first edition of Ampersand's e-newsletter is now available. The once a term e-newsletter will contain Stable News, Recent Cases of Note, Book reviews and much more.

To subscribe to "& another thing", click here.

Ampersand recommendations in Chambers & Partners UK Bar Guide 2012

Tue, 25 Oct 2011 00:00:00 GMT

Ampersand has secured 21 listings across 8 areas of practice in the latest UK Bar Guide 2012 of the independent legal directory Chambers and Partners, including their top Band 1.

The full listings across Administrative & Public Law, Clinical Negligence, Commercial Dispute Resolution, Construction, Employment, Personal Injury, Planning and Reconstructing/Insolvency for Ampersand are:

Administrative & Public Law
Aidan O'Neill QC of Ampersand takes a strong interest in the inter-relationship between EU, domestic and human rights laws and enjoys an enviable reputation.

He recently acted in cases before the Supreme Court concerning the right to have a solicitor present during a police interview while in detention and another that questioned the jurisdiction of UK employment tribunals.

Clinical Negligence
The Set Ampersand is widely recognised as one of Scotland's leading clinical negligence sets, with market sources agreeing that "advocates need to be in tune with the experts and these barristers are." It houses an impressive number of leading practitioners who are regularly instructed in key cases and who are lauded as "reliable in their work and people with an enormous depth of knowledge." One commentator noted: "We almost without fail go to them; their personal injury and medical knowledge is second to none."

Maria Maguire QC is highlighted as a first-class clinical negligence advocate who is revered for her straightforward and hard-working approach. She specialises in complex brain injury and cerebral palsy cases and clients are left impressed with her ability to "always take every available argument."

Lisa Henderson is resoundingly praised as a junior who can be confidently brought into vastly complex cases and get straight to the heart of the matter. She has a particular focus on cerebral palsy claims. Archie MacSporran is a pre-eminent clinical negligence advocate who sources agree has an expertise that goes beyond his position as junior counsel. His practice covers pre-natal injury claims, misdiagnosis and Fatal Accident Inquiries. Instructing solicitors identify Lauren Sutherland as "highly skilled at getting to the nub of an issue when in consultation with experts." She also offers "a lot of understanding of medical negligence" and the "ability to get on with clients and experts." She is currently playing a key role in the Vale of Leven Hospital public inquiry.

Commercial Dispute Resolution
Robert Howie QC of Ampersand is "very clever" and "easy to deal with." His high-profile cases include the Scottish Lion Insurance litigation relating to a solvent scheme of arrangement. David Sellar QC at the same set incorporates an outstanding understanding of restructuring and insolvency law into his commercial disputes practice. He appeared in matters relating to the administration of Heritable Bank. Craig Sandison QC also of Ampersand is well known for his grasp of property and contractual disputes as well as corporate and personal insolvency issues. Robert Weir QC of Ampersand continues to impress sources with the breadth and depth of his knowledge base. He acts in contentious probate and construction matters. His stablemate Ronnie Clancy QC enjoys a good reputation as a strong courtroom advocate. He acts on property and professional negligence matters as well as general commercial disputes. Jane Munro at the same set enters the rankings this year after leaving her mark on sources. She includes company and public law claims as part of her commercial disputes practice.

Construction
"Cerebral" Robert Howie QC of Ampersand is acknowledged as a real expert in the construction field. Solicitors hail his thorough approach, noting that he "provides the right level of excellently researched detail." He acted in the case of RBG v SGL Carbon Fibres, an action seeking to enforce an award in a dispute between an employer and a contractor.

Employment
Although perhaps best known for his stellar human rights work Aidan O'Neill QC of Ampersand has a significant employment law practice. He is a "fantastic lawyer" who is particularly strong when dealing with employment cases that have a human rights element.

Personal Injury
The Set Personal injury is one of the core practices at this respected generalist set, where clients admire the close co-operation between senior and junior advocates.

In a career spanning more than two decades, Maria Maguire QC "has produced some fantastic results" for her clients. Her caseload includes catastrophic injury, fatal accident and abuse claims, and she acts for local authority defenders and insurers as well as pursuers. She recently represented an 11 year-old pupil who sustained an eye injury in school.

Dividing her practice between personal injury and clinical negligence, Lisa Henderson is recognised for her experience of serious brain and spinal injury cases. Euan Mackenzie impresses with his oral advocacy across a variety of practice areas. He regularly advises on serious and fatal accident claims. Lauren Sutherland is "easygoing and approachable," and retains her ranking for her role in several fatal accident inquiries.

Planning
Malcolm Thomson QC of Ampersand is admired equally for his "thorough opinions" and "approachable nature." He regularly appears at public inquiries and is highly respected for his expertise and experience in this field.

Also at this set is Ailsa Wilson QC, who is felt to have a real prowess for advocacy and inquiries, especially in energy matters. Observers emphasise her approachability and propensity for getting results.

Reconstructing/Insolvency
For many, Ampersand's David Sellar QC remains "the counsel of choice if you have a tricky corporate matter to deal with." He is a favourite with instructing solicitors, who say "he is very commercial and always available to talk through a problem." His stablemate Robert Howie QC is admired as "a very formidable advocate." He is "sensible and commercial" and impresses with his "prodigious command of the minute details of Scottish civil procedure."

View the Ampersand profile on the UK Bar 2012 Chambers and Partners website.

'The Key' to the AXA Decision & judicial approach on Privilege, Confidentiality, Data Protection and FOI

Thu, 20 Oct 2011 00:00:00 GMT

Ampersand’s lecture series continues this November with 2 prominent lectures.

On 14th November our 'Key' lecture series will focus on the issues arising from the recent UK Supreme decision in the AXA v Lord Advocate case. Speakers from all Scottish sides of the case, Alan Dewar QC, Aidan O'Neill QC and Jane Munro, will be speaking along with leading Academic, Professor Tomkins of the University of Glasgow.

Then on 21st November our second seminar in November focuses on the issues arising from the recent decisions in the Court of Session on Privilege, Confidentiality, Data Protection and Freedom of Information where delegates will hear from 3 members of Ampersand, Robert Howie QC, Ronnie Clancy QC and Jane Munro.

Full details and how to register can be found on our events page here.

Case comment: AXA Insurance v Lord Advocate

Mon, 17 Oct 2011 00:00:00 GMT

Validity of Damages Act upheld by UK Supreme Court

The UK Supreme Court has upheld the validity of the Damages (Asbestos-related Conditions)(Scotland) Act 2009. The Act restores the right to claim damages for personal injury to those diagnosed as suffering from pleural plaques – benign scarrings of the lung membranes brought about by exposure to asbestos fibres. That right to claim damages had been removed by the decision of the House of Lords in 2007 in the case of Rothwell but the Scottish Parliament took the view that the pre-Rothwell position should be reinstated.

Ampersand’s Aidan O’Neill QC, who acted for the third to tenth Respondents in the case, discusses the recent Supreme Court decision:

The case raised three important legal issues: (1) whether Acts of the (devolved) legislature – to all intents and purpose primary legislation - could be subject to common law review on grounds of irrationality/unreasonableness; (2) whether this particular Act – the Damages (Asbestos related conditions) (Scotland) Act 2009 – breached the Article 1 Protocol 1 property rights of the insurers behind various employer’s liability insurance policies; (3) the requirements for private party standing in public law cases, both to challenge and to defend general legislation.

The case has important constitutional/political repercussions, primarily in relation to clarifying the relationship between the UKSC (rather than the ECHR) and the legislative competence of (the Scottish) Parliament. Under the devolution statutes, the courts are given US style powers to strike down legislation passed by the devolved legislatures since these bodies are said not to be “sovereign” in the way that the UK Parliament is.   The UKSC has however said that the Scottish Parliament is a Parliament, democratically elected and accountable to the people.   Accordingly the court will accord it a very broad margin of appreciations and deference – as much as indeed it will accord to the UK Parliament – when it passes legislation.

On the other hand, the UKSC has completely re-written the rules on standing to take public law and public interest challenges to legislation and executive acts.   The standing rules in Scotland had been interpreted by the Scottish courts in a very restrictive way – requiring any individual taking a JR to have title and interest, on a private law paradigm. This has meant that public law has simply not developed in Scotland as it has in the rest of the UK because NGOs and interest groups have simply not been able to bring matters of public concern before the courts. The UKSC has said that this is not acceptable in a modern constitutional democracy and has instead now required the standing rules to be totally opened up in Scotland so that they will now follow English practice on this.

Lord Mance suggested in this judgment that the next round of litigation on this specific area might now be between insurers and their insured with the insurers claiming that if their policies are not governed by Scots law (most will have an English choice of law clause) then since an Act of the Scottish Parliament cannot change the law of England, the Damages (Asbestos related conditions) (Scotland) Act 2009 does not apply and instead the insurers can continue to rely on the HL decision in Rothwell to say that pleural plaques are not a “personal injury” for the purposes of the English law of negligence and so damages claims for these against employers are not covered by their employer’s liability insurance.

More generally however because the rules on standing have been so comprehensively liberalised one can now anticipate a wave of more general public interest litigation – against the Scottish Government and against the Scottish Parliament – now coming before the courts in Scotland.

The UKSC rejected the submissions made by the Scottish Government that it was going to legislate as regards the rules on standing and so they should not alter the existing practice and procedure in Scotland. They said that as a matter of common law the primary principle should be one of more open access to the court to allow public wrongs to be righted. If the Scottish Justice Secretary were to attempt now to legislate to cut down on this fundamental common law right, there is likely now to be a legal challenge to his actions. One of the most interesting things about the AXA judgment is that the court revived the idea of fundamental common law constitutional rights – notably of Judicial Review and the right of access to the courts – and said that although Acts of the legislature could not be reviewed at common law on irrationality/unreasonableness grounds, they could be reviewed by the court on the basis of breach of fundamental constitutional rights guaranteed at and by the common law.

I think the judgment is remarkably clear and will stand as the leading case on the issue of standing and fundamental common law rights.

The implications for practitioners are that they can now advise their clients that public interest cases can now at last properly be raised in Scotland by properly interested private parties and NGOs and interest groups who no longer need to show any “title to sue”. This may be of particular importance in planning/environmental cases - for example the controversy over the Trump golf development in Aberdeenshire. Clearly the issue of costs remains a barrier to access to the courts, but with the belated acceptance in Scotland of the possibility of PCOs the issue of an adverse costs finding may be dealt with.

The case is reported as AXA General Insurance v. Lord Advocate [2011] UKSC 46. Click here to view the full judgment (.pdf)

Validity of Damages Act upheld by UK Supreme Court

Wed, 12 Oct 2011 00:00:00 GMT

The UK Supreme Court today handed down the judgment on AXA Insurance & others Judicial Review upholding the the validity of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 and that the third to tenth respondents had "standing" due to being "directly affected" by the appellants challenge to the 2009 Act.

The case involved a Judicial Review brought by various insurance companies seeking to challenge the lawfulness (and have struck down) the Damages (Asbestos-related Conditions) (Scotland) Act 2009 which was an Act of the Scottish Parliament ("ASP") which was passed on 11 March 2009, received the Royal Assent on 17 April 2009 and came into force on 17 June 2009. This ASP provides that asymptomatic pleural plaques, pleural thickening and asbestosis shall constitute, and shall be treated as always having constituted, actionable harm for the purposes of an action of damages for personal injury. The purpose of the 2009 Act was to ensure that the decision in the English House of Lords decision Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] AC 281 (“Rothwell”) should not apply in Scotland. In Rothwell their Lordships held that as pleural plaques caused no symptoms, did not increase susceptibility to other asbestos-related diseases or shorten life expectancy, then the internal physical changes which they undoubtedly caused in the pleura membrane round the claimants’ lungs was not to be regarded, for the purposes of the law of delict, as a “personal injury” which was capable of giving rise to a claim for damages in negligence.

The insurers said that the ASP was irrational/unreasonable at common law and breached their human rights – specifically their property rights under Article 1 of Protocol 1 ECHR - in that they were in effect being landed with the bill to pay for damages for this condition which at common law were not recoverable. They also said in the Outer House before Lord Emslie that their right to a fair trial was also being interfered, at least in any pending actions, as the defence given them to these claims by the HL decision in Rothwell was being taken away from them by fiat of the Scottish Parliament. They lost on all counts after a 22 day hearing in the Outer House before Lord Emslie (AXA General Insurance v. Lord Advocate 2010 SLT 179, OH). They reclaimed to the First Division and again lost on all points save their claim that the third to tenth respondents, actual or potential claimants who would rely upon and benefit from the ASP had not title and interest to defend the ASP against their attack on its validity (AXA General Insurance v. Lord Advocate 2011 SLT 439, IH).

The insurers appealed the matter to the UKSC and the third to tenth respondents cross-appealed against the decision of the First Division to say that they could not participate in the JR through lack of title and interest to defend the proceedings. The decision of the UKSC was handed down on 12 October 2011 as AXA General Insurance v. Lord Advocate [2011] UKSC 46. Click here to view the summary and full judgment.

Ampersand Advocates Alan Dewar QC represented the Lord Advocate, Aidan O'Neill QC represented the third to tenth Respondents and Jane Munro was junior counsel for the Petitioners and Reclaimers.

The Inner House Opinion can be viewed here and the Lord Emslie's decision here.

New Ogden Tables announced

Mon, 10 Oct 2011 00:00:00 GMT

Dr Pollock of Consulting Actuaries, Pollock & Galbraith, has announced the publication of the 7^th Edition of the Ogden Tables.

There have been some modest changes to the explanatory notes, not least to incorporate the modifications to the approach to fatal accident cases brought in by the Damages (Scotland) Act 2011. A more significant change to the notes is expected in the 8th edition, work on which will commence shortly. Of more significance in the 7th edition are the changes to the tables of multipliers themselves. The range of discount rates at which multipliers are tabulated has been reduced from 0% to 5% to -2% to 3%. The provision of multipliers calculated at negative discount rates is required primarily to enable more accurate assessments to be made of the relative merits of lump sum awards and periodical payments. In addition the current discount rate of 2.5% is under review by the Lord Chancellor, and if it is changed it is expected to fall (given the yield on index-linked gilts is now less than 0.25%, when it was c2.5% when the prevailing discount rate was set).

You can see the full Note from Dr Pollock by clicking here.

You can get the new Tables, either the real thing from the TSO or for free in .pdf format, from the Government Actuary’s website here.

25 listings for Ampersand in Legal 500 2011

Wed, 21 Sep 2011 00:00:00 GMT

Ampersand has had 22 recommendations across 5 areas of law in the Legal 500 UK 2011 edition, launched today.

In recognition of Ampersand's strength and breadth across various disciplines, the Legal 500 has listed Ampersand across all of Ampersand's core areas of practice.

Ampersand is described as having a ‘variety of counsel who are accomplished in dealing with public and administrative law matters’ within the Civil liberties, human rights, public inquiries, public and administrative law section. Aidan O’Neill QC, who ‘grasps his topic very quickly’ and is the ‘go-to advocate to push a novel point’, has a leading civil liberties, public, EU and competition law practice, and was involved in the Cadder case. Alan Dewar QC, who has a notable administrative law practice, was involved in the AXA case with Jane Munro, who is ‘first rate’ and is ‘one of the most intellectually able junior counsel at the Scottish Bar’.

In Commercial litigation David Sellar QC is ‘unquestionably the leading QC in his field in Scotland’, and is a ‘“go to” counsel at the Scottish Bar for technical corporate matters’. Ronald Clancy QC is ‘one of the most ethical advocates’ and ‘is a great team player’. Craig Sandison QC can ‘turn around a polished piece of work in  very short order’, and Robert Howie QC has ‘the ear  of the court’ and has ‘an air of reassuring authority’.  Jane Munro’s ‘written work is exemplary, not only in terms of style but also the legal analysis and thinking that goes into everything that she produces’. Alan  Dewar QC handles a large volume of commercial disputes.

In the Company & Insolvency section David Sellar QC is praised for his ‘encyclopaedic knowledge of solvent schemes of arrangement and ability to articulate those  into layman’s language’, and has a ‘thoroughly comprehensive knowledge of company law’. David Thomson is recognised as a standout junior at the Scottish Bar.

Within the Personal Injury, medical and professional negligence law section Maria Maguire QC is described as ‘quite superb’, ‘absolutely diligent in all aspects of her work’, and with an ‘immense’ knowledge base is able to ‘conduct fairly high-brow medical consultations with expert witnesses intelligibly and concisely without missing anything out’. Graham Primrose QC has ‘good tactical and negotiating skills’, and Simon Di Rollo QC is a ‘very safe pair of hands to handle claims involving the most catastrophic of injuries’. Lisa Henderson, who is ‘exceedingly thorough’, and Lauren Sutherland are ‘highly knowledgeable and experienced but remain approachable and a pleasure to work with’. Hugh Campbell QC and Archie MacSporran are also recommended.

Under the Planning environmental and licensing section Ailsa Wilson QC is an ‘extremely able senior counsel’ in the field of planning and is highlighted for her ‘willingness and ability to devote endless energy and enthusiasm to the pursuit of her client’s case’. Marcus McKay is recommended for environmental mandates, and Malcolm Thomson QC is a prominent planning practitioner.

In the Property, construction and agriculture section Robert Howie QC is ‘the first port of call for a senior counsel in a construction dispute’. Laurence Kennedy is an ‘outstanding property litigation junior’. Christopher Haddow QC has a varied land and property practice, and is recommended for rating matters.

The full Scottish Bar section of the Legal 500 UK 2011 edition can be viewed here.