Scottish Legal News


Published by: Scottish Legal News
Avian House,
87 Brook Street,

Tel: 01382 427038
Fax: 01382 427006 Email: The Editor

Your email is treated in the strictest confidence. You will not receive any unsolicited e-mails and your address will not be passed on to a third party.

Welcome to Scottish Legal News - the leading source of news, events and jobs in Scotland's legal sector

Scottish Legal News: Wednesday 9th September 2020

Latest News
Latest Jobs

Latest News

Reclaiming motion seeking clarification on judicial review appeal rules refused as incompetent

Lord Pentland
Lord Pentland

A citizen of Nigeria who challenged a finding that his petition for judicial review of the decision of the Home Secretary not to treat his further submissions as a fresh claim for asylum was not made within the statutory three-month time limit has had his reclaiming motion against the decision refused as incompetent.

The motion of Adeyimi Odutola Odubajo was brought as a test case in order to obtain a clear ruling on the meaning of the words “when the grounds giving rise to the application arose” contained in section 27A of the Court of Session Act 1988. 

The reclaiming motion was heard in the Inner House of the Court of Session by Lord GlennieLord Woolman, and Lord Pentland.

Question of competence 

The petitioner lodged a petition for judicial review on 6 September 2019, three months and one day after the date, 5 June 2019, on his decision letter from the respondent, the Secretary of State for the Home Department. He received the letter on 7 June 2019.

The time limit on commencing judicial review proceedings, as set out by the 1988 Act, is three months, although the court has a discretionary power to extend it. Following an oral hearing, the Lord Ordinary considered that the date on which the grounds giving rise to the application arose was the date on the decision letter and granted an extension on the time limit.

The petitioner sought leave to reclaim against the Lord Ordinary’s interlocutor, challenging his finding that the date on which the grounds arose was 5 June 2019. It was noted that there were conflicting decisions regarding whether “when the grounds giving rise to the application arose” in the 1988 Act referred to the date on which the decision was made or when the applicant received notification of it. If it was the latter, then the petitioner’s application would have been made timeously.

The Inner House raised with the parties the question of whether the reclaiming motion was competent in terms of the 1988 Act. It was submitted for the petitioner that the motion was brought in terms of section 28, which allows a party dissatisfied with an interlocutor pronounced by the Lord Ordinary to reclaim against it. This was a broad provision and not disapplied by anything in section 27D, which covered refusals.

Counsel for the respondent agreed that the motion was competent. He submitted that sections 27A to D provided a complete code governing issues relating to permission itself. However, the normal reclaiming rules applied in other circumstances arising from a permission decision, such as where a party had been granted permission to proceed on the basis of an extension of the three-month period and contended that such an extension was unnecessary because the petition was not truly time-barred.

Comprehensive code 

The opinion of the court was delivered by Lord Pentland. He began by explaining the legislative context behind the relevant provisions of the 1988 Act as amended, saying: “It is clear that the intention behind section 89 of the Courts Reform (Scotland) Act 2014, which added sections 27A to D, was to introduce a comprehensive and self-contained statutory code governing all aspects of the procedure for obtaining permission for applications to the supervisory jurisdiction of the Court of Session. […] These reforms were proposed in the Report of the Scottish Civil Courts Review.”

He continued: “It recommended that if leave was refused in the Outer House ‘there should be a right of appeal, within 7 days, to the Inner House which would look at the petition anew’. The review did not recommend that the respondent should have a right of appeal against the granting of leave.”

On the intent of the provisions, he said: “It is obvious that the legislative intention was to create a new stand-alone scheme requiring permission to be obtained to proceed with an application for judicial review; the scheme was to cover all aspects of the permission stage, including appeal rights. It was to be comprehensive. The policy intention was for the new system to be speedy and efficient.”

He continued: “There is nothing to suggest that instead of an appeal he or she could choose to reclaim under the old rules. There is nothing to suggest that a respondent would be able to appeal against a grant of leave. There is nothing to suggest that an applicant who had been granted leave, like the present petitioner, could nonetheless reclaim because he was dissatisfied with a finding that the time limit for bringing proceedings had expired.”

Evaluating the submissions of both parties, he said: “[If] section 28 of the 1988 Act applied to at least some aspects of or issues arising from decisions on permission, it is impossible to see what the purpose of section 27D would be. There would then be two separate avenues of appeal with different time limits. A respondent could reclaim against a decision to grant permission. A petitioner could ignore the 7 day time limit and elect instead to enroll a reclaiming motion. That would not make sense. The appeals system would be incoherent and potentially become chaotic. That is not an outcome that the legislature can reasonably be taken to have intended.”

For these reasons, the reclaiming motion was refused on the ground of incompetence.

Copyright © Scottish Legal News Ltd 2020

Back to top

Editorial: Lawmakers and lawbreakers

Graham Ogilvy

In a rare moment of candour, Northern Ireland Secretary Brandon Lewis yesterday admitted that the British government was breaking international law by overriding the terms of the EU Withdrawal Agreement that dealt with the Northern Ireland protocol.

Scottish Legal News will not be offering a prize to the first solicitor to lodge the Brandon Lewis defence. Any plea of "My client did break the law, your lordship, but only in a very specific and limited way" is unlikely to impress the bench.

It certainly underwhelmed our European partners who were already wary of a government led by a man described by the normally understated former Attorney General Dominic Grieve as "pathological liar". For many in Europe, it comes as further proof of Albion's perfidy.

Yesterday's admission followed the resignation of Sir Jonathan Jones QC, treasury solicitor and permanent secretary at the Government Legal Department who felt he could not be a party to such a blatant disregard for the law.

Simon Davis, president of the Law Society of England and Wales has rightly observed: "The rule of law is not negotiable. Our commitment to the rule of law is key to attracting international business to the UK and to maintaining faith in our justice system."

In many parts of the world Britain's much-vaunted attachment to the rule of law has always been doubted. Brittania waiving the rules is hardly a new phenomenon.

But the current blatant breach of international law will bring comfort to the very autocrats and dictators that Britain seeks to contain.

It is the inter-governmental equivalent of the antics of Dominic Cummings, Johnson's deranged consiglieri, who infamously saw fit to breach the breakdown rules that his government had introduced – 'a one rule for them and one rule for us' attitude borne of entitled arrogance.

It will further tarnish Britain's international reputation and embolden the extreme right-wing populists and racists in the UK who despise law and order and are already emboldened by Brexit.

And it comes a week after an attack on 'activist lawyers' by a British government which has packed the House of Lords with cronies and relations, awarded lucrative Covid-related contracts to associates, launched a process aimed at restricting the terms of judicial reviews and seems intent on weakening the powers of the devolved nations.

Traditional Tories who take 'the rule of law' seriously, like the Conservative chair of the Commons Justice Select Committee, Sir Bob Neill, who put Lewis on the spot yesterday, are appalled at this breath-taking contempt for international treaties. But there are not enough of them and too many, who know fine that what is being done in their name is wrong, are content to remain silent to pay the school fees.

We live in dark times when our lawmakers become lawbreakers.

And where does this leave 'our precious union'? Those who parrot that well-worn phrase are, at the same time putting it in jeopardy and growing numbers of Scots feel that they are being squeezed between the forces of English nationalism and Scottish nationalism.

When Boris Johnson promised the British people that his Brexit deal was 'oven-ready', he neglected to tell them that they were the turkeys.

Graham Ogilvy

Back to top

Scottish government says consent for UK Internal Market Bill 'impossible'

The Scottish government has said it is "impossible" to recommend that the Scottish Parliament gives consent to the UK government's Internal Market Bill.

The bill engages the Sewel Convention and therefore requires the consent of Holyrood.

Constitution Secretary Michael Russell said: "It beggars belief that the UK government is asking the Scottish government to recommend consent to the Internal Market Bill. This is not a genuine partnership of equals and we couldn’t recommend consent to a bill that undermines devolution and the Scottish Parliament, and which, by the UK government's own admission, is going to break international law.

“This is a shabby blueprint that will open the door to bad trade deals and unleashes an assault on devolution the like we have not experienced since the Scottish Parliament was established. We cannot, and will not, allow that to happen.

“It will open the door to a race to the bottom on food standards, environmental standards and will endanger key public health policies such as minimum unit pricing. It will also deliver a hammer blow to the Scottish economy by making it harder for the UK government to conclude Free Trade agreements if other countries think the UK won’t meet its obligations.

“As each day passes, it becomes clearer that the people of Scotland deserve the right to choose a better direction, to determine their own future. That is why, before the end of this parliament, we will set out the terms of a future independence referendum clearly and unambiguously to the people of Scotland, in a draft referendum bill.”

Scottish Greens co-leader Patrick Harvie said: “This bill is every bit as bad as we feared. It places a veto in the hands of Boris Johnson over any devolved decisions which gets in the way of his free market extremism. Even his own ministers admit it is unlawful. It must be stopped.

“It threatens our environmental, food and farming standards. It threatens Scotland’s decisions to ban fracking or prevent new nuclear power stations. It could be applied to our bold public health measures such as minimum unit pricing, and it certainly could allow further private sector involvement in our NHS.”

Back to top

John Hall

John Hall

Scottish Legal News is saddened to report the death of Dundee solicitor John Hall who died aged 52 on 1 September after a short battle with cancer.

Mr Hall flew as a commercial pilot with Loganair before deciding to become a lawyer. 

After graduating from the University of Dundee and completing his traineeship he worked as a procurator fiscal in Aberdeen and then with a couple of well known Dundee firms before establishing his own successful business Hall Norrie Warden in Broughty Ferry.

Mr Andy Lyall, senior solicitor at the Dundee bar, paid tribute to his friend and colleague.

He said: "John was an outstandingly skilled lawyer and was held in the highest regard by colleagues and the bench. He was my go-to man whenever I had a problem and I know that many other lawyers also consulted him. He was generous with his time and knowledge. He was unswerving in his efforts to help the clients who consulted him and he was loyal to his many friends."

Mr Hall was diagnosed with inoperable cancer in the spring. 

Mr Lyall commented: "He faced the pain and suffering he endured with his usual bravery and grace. His husband Alan died unexpectedly and suddenly of heart failure, aged just 47, when John was undergoing treatment in hospital only a few weeks ago. A lot of the light went out of him then but his courage endured to the end."

Back to top

Law Society recommends changes to Scottish government planning policy

The Law Society of Scotland has recommended changes to the Scottish government's planning policy to improve efficiency and transparency of the planning process.

Its Planning Law Committee ran a consultation last year which sought views and feedback on the policy.

Alistair McKie, committee convener, said: "The aim of the consultation was to shed light on current areas of uncertainty, establish the consensus on best practice and inform the Scottish government’s work to drive consistency and reduce delays.

“The expert views of our members and stakeholders has made this possible and we are pleased to be submitting a comprehensive set of recommendations, addressing aspects of ‘the Act’ ranging from model agreements and in-house styles, heads of terms and processing agreements, parties to the agreement, site area, planning consents, liability and enforceability.

“We look forward to working with the Scottish government to influence positive changes in this area of practice.”

Neil Langhorn from the Scottish government's planning and architecture division said: "We're very grateful to the Law Society of Scotland for this timely piece of work. We will consider the report’s recommendations as part of our wider review of planning obligations.”

Back to top

Lawyers of Tomorrow – Dean Gallacher

Dean Gallacher

I have always wanted to be a lawyer. Since I was young, there hasn't been another career in my sights because I want to help others as a problem solver and to be someone who people turn to when they have nowhere else to go.

I was immensely proud to have graduated from the diploma course with merit this year and cannot wait to begin my legal career despite entering the profession during this challenging period.

Almost everything I do is to ensure I am working towards improving my legal skillset and experiences. I have been working two days each week at a law firm on a voluntary basis to continue to grow and learn what it's like to be a legal trainee.

Alongside this, I am working as a team leader in my local supermarket and have volunteered at Citizens Advice Bureau. I am honest, reliable, confident, ambitious and resilient.

I am interested in many areas of law and keep an open mind when it comes to working in different seats, but I am mostly interested in employment, family and succession law.


Back to top

Blog: Supreme Court heralds new approach to restrictive covenants

Fiona Caldow and
Gareth Hale

Fiona Caldow and Gareth Hale consider a recent decision by the Supreme Court on restrictive covenants in restraint of trade.

In Peninsula Securities Limited v Dunnes Stores (Bangor) Limited [2020] UKSC 36the Supreme Court upheld the terms of a lease, finding that a restrictive covenant provided by a landlord of a shopping centre to an anchor tenant did not engage the doctrine of restraint of trade.

The restrictive covenant did not therefore have to be shown to be reasonable in order to be enforceable. In reaching this conclusion, the Supreme Court departed from previous case law, abandoning the "pre-existing freedom" test in favour of consideration of whether the covenant is of a type that has become commercially acceptable and thus can be considered to satisfy the test of public policy.

The leading case in relation to covenants in restraint of trade had been Esso Petroleum v Harpers Garage (Southport) Limited [1968] AC 269, in which Lord Reid, with the support of the majority of the House of Lords, formulated what became known as the “pre-existing freedom” test. A covenant would engage the doctrine of restraint of trade if, on entering into it, the person doing so “gives up some freedom which otherwise he would have had”. The pre-existing freedom test has since been widely criticised, with critics pointing out that there is no principled explanation as to why a restraint should engage the doctrine if the party agreeing to the restraint enjoyed a pre-existing freedom but an identical restraint should not engage it if they did not do so.

In Esso, Lord Wilberforce put forward a different test, known as the “trading society” test, under which a covenant restraining the use of land does not engage the doctrine if it is of a type which has “passed into the accepted and normal currency of commercial or contractual or conveyancing relations” and which may therefore be taken to have “assumed a form which satisfies the test of public policy”.

There is a shortage of judicial consideration of the issue in Scots law, although Esso and its analysis of whether there has been deprivation of freedom has been referred to in Scotland – see Nekrews v PMAC Scientific Ltd [2018] SAC Civ 29, 2019 SC (SAC) where it was held that an agreement to secure the co-operation of third parties did not entail any surrender of liberty and, accordingly, did not engage the doctrine of restraint of trade.

Turning to the case of Peninsula v Dunnes, a developer of a shopping centre in Northern Ireland granted a long lease of part of the land to Dunnes Stores almost 40 years ago. The lease contained a restrictive covenant that any development on the remaining land would not contain a large unit for the purpose of trading in textiles, provisions or groceries. Peninsula subsequently acquired the developer's interest in the lease. The shopping centre had been through a period of decline and Peninsula considered that the restrictive covenant was preventing its revival. Peninsula argued that the restrictive covenant engaged the doctrine of restraint of trade, that it was unreasonable and therefore unenforceable.

The Supreme Court unanimously held that, when considering whether the doctrine of restraint of trade is engaged, the pre-existing freedom test should be discarded in favour of the trading society test. Application of the trading society test to the facts of the case was straightforward because it has long been accepted and normal for the grant of a lease in part of a shopping centre to include a restrictive covenant on the part of the landlord in relation to the use of other parts of the centre. It follows that the covenant in this case did not engage the doctrine. The restrictive covenant was therefore enforceable. Lord Carnwath stressed that "what matters therefore is the practical effect of the restriction in the real world, and its significance in public policy terms", finding that "the agreement is not in essence an agreement between traders, but a transaction in land". As regards the nature of the covenant: "the business of developing a shopping centre as in this case inevitably involves doing deals to regulate the use of the relevant land, and balance the competing interests, to advance the success of the centre as a whole…….there is nothing unusual in special terms being required to secure an appropriate anchor tenant."

A theme common to the recent landmark Supreme Court decisions in the field of contract law is the need to respect the terms of the bargain struck between parties: see Arnold v Britton [2015] UKSC 36 (concerning contract interpretation), Marks & Spencer v BNP Paribas Securities Services Trust Company (Jersey) [2015] UKSC 72 (concerning implied terms), and the conjoined decision in the cases of Cavendish Square Holding BV v El Makdessi and ParkingEye v Beavis [2015] UKSC 67 (concerning penalty clauses).  Peninsula v Dunnes continues this approach of prioritising contractual certainty, however unwise an agreement turns out to be.

Fiona Caldow is managing practice development lawyer and Gareth Hale is a partner at Dentons.

Back to top

MacRoberts and French Duncan support Together Energy's £14m acquisition

The corporate finance teams at MacRoberts and French Duncan have supported energy firm Together Energy in its £14 million acquisition of Bristol's residential customer base.

The sale will see Together Energy acquire 155,000 residential meter points and the Bristol Energy brand and systems.

It will ensure a continued service for customers and secure the jobs of 110 frontline workers.

Together Energy prides itself on its social impact with more than 90 per cent of its staff coming from the poorest ten per cent of postcodes.

Together Energy chief executive Paul Richards said: “The industry and intelligence shown by Michael Kelly, Iain Walker and their teams at MacRoberts and French Duncan has been incredible. It was a complex transaction and I have been enormously reassured by their handling throughout. They are superb advisors, a pleasure to work with and they have undertaken a herculean effort to deliver this transaction.”

MacRoberts corporate finance partner Michael Kelly commented: “This was a brilliant transaction to be part of and we are delighted for Together Energy. It is another big step forward in their growth plans, and it rescues a vast number of jobs. At a time of such obvious challenges, we are proud to be part of a deal which delivers real commercial value to our client, but also serves the public good in such a profound way.”

French Duncan corporate finance Partner Iain Walker added: “We are delighted to have supported Together Energy with this milestone transaction, which significantly increases their scale, helps to facilitate their growth plan and also secures jobs. It again demonstrates the ambitions of Paul and the Together Energy team, and we look forward to seeing the company continue to grow and thrive.”

Back to top

Alison Bryce: Premium products face no-deal threat

Alison Bryce

Alison Bryce considers the uncertainty for the Scottish food and drink industry in the event of a no-deal Brexit.

Over the last 47 years, the UK’s laws, regulations and processes have become inextricably linked with the European Union. There are a number of factors to consider in the inevitable untangle post-Brexit. In particular, Scottish producers are at risk of losing their European Protected Geographical Indication (PGI) status for food and drinks products in the event of a no-deal Brexit.

PGIs recognise the quality of local ingredients, as well as the methods and traditions used in producing food in certain geographical areas. These factors lead to an impression of quality, heritage and tradition being associated with certain product names, which, in turn, allows the products to achieve higher returns and a strong brand identity. PGIs allow producers to charge a premium price and maintain competitive advantage. This is because PGIs essentially guarantee authenticity and quality. Common European examples include Champagne and Prosciutto di Parma.

Food and drink is one of the fastest-growing sectors in the Scottish economy, with plans to increase turnover to £30 billion a year by 2030 in a successful partnership with the Scottish government. There are a number of Scottish products that enjoy PGI status, including Scotch Whisky, Stornoway Black Pudding, Scotch Beef and Orkney Scottish Island Cheddar.

The PGI scheme is controlled by European Union and World Trade Organisation rules, with no equivalent operating in the UK. This poses a substantial threat to products that have gained PGI status. With no equal provisions, how will producers ensure their products remain recognised after Brexit?

New UK PGI scheme

The UK government has proposed that all PGIs under the current EU scheme will be subsequently protected under a new UK equivalent. The transition period remains in force until 31 December 2020. Thereafter, the UK scheme will come into force, regardless of a no-deal scenario. It will be managed by the Department for Environment, Food and Rural Affairs (DEFRA) and is anticipated to mirror the one currently operated by the EU.

Changes include the creation and use of new, specific UK PGI logos. The PGI logo is essential and acts as a clear indication to consumers that a product has been granted PGI status. Producers will be able to use both UK and EU logos on their packaging, ensuring minimal disruption to stakeholders. However, this new labelling requirement will come at a cost to Scottish producers, and the UK has proposed a three-year adoption period to cushion the blow.

The UK government published guidance in February 2019 to reassure producers that their PGIs already registered under the EU scheme will be protected, in both the UK and the EU, after the transition period. Currently, this is still the case, but there is much uncertainty surrounding their status if the UK does not strike a deal by the end of December 2020.


The UK signed the Withdrawal Agreement, which governs the UK’s exit from the EU, on 24 January 2020. However, there remains uncertainty as to whether a deal can be struck in time. If there is no trade agreement, producers, other than those in the UK, may need to re-apply to the new UK scheme to ensure that their product retains PGI status. It may also be the case that the EU no longer recognises UK PGIs as they are no longer part of the EU system, and UK producers may also need to re-apply to the EU scheme. The Scottish government has raised concerns over the unsettling position that is causing Scottish producers real uncertainty. Currently, there is no guarantee that protection will be reciprocal between the UK and the EU, and any such protection for Scottish producers may be withdrawn overnight in a no-deal scenario. Additionally, the UK may choose to weaken or alter its PGI system in trading deals struck with countries that view it as a threat to trade (for example, the United States).

In the meantime, the reciprocity of PGI protection remains unclear in the event of a no-deal. The Withdrawal Agreement provides protection “unless and until” a new deal can be negotiated. Until then, producers will understandably be worried. Scottish food producers need certainty to prevent any dilution of protection under the new PGI scheme and to bolster the food and drink industry in Scotland to deliver the growth trajectory it seeks.

Alison Bryce is a partner at Dentons. This article first appeared in The Scotsman.

Back to top

Royal Faculty of Procurators in Glasgow: Doors Open Day 2020

The Royal Faculty of Procurators in Glasgow (RFPG) will be taking part in the Glasgow Doors Open Day which this year takes the form of a digital festival.

The RFPG has mounted an online exhibition which focuses on the history of the Royal Faculty, the building's architecture and items of note within the library.

See more at

Back to top

Benjamin Bestgen: Marriage

Benjamin Bestgen

Benjamin Bestgen takes an honest look at marriage in his latest jurisprudential primer. See last week's here.

During my legal studies, a professor opined that one of the most legally significant things the majority of people will ever do in their lives is to marry and divorce (the other things were: entering into employment contracts, having children, buying a house and dying).

Writer Jane Austen started her most famous novel asserting that “It is a truth universally acknowledged, that a single man in possession of a good fortune, must be in want of a wife." Philosopher Arthur Schopenhauer countered that marriage meant to halve one’s rights and double one’s duties and is akin to grabbing into a bag of snakes while blindfolded and hoping to catch an eel. He also noted that to marry meant that spouses do their utmost to become thoroughly disgusted with each other.

Despite many witticisms, depictions of marital bliss and detailed social observations on the subject, Austen never married. Neither did Schopenhauer, though both had opportunities.

People have pondered marriage for millennia and better writers than me have done a thorough job already. Philosopher Elizabeth Brake provides a great summary on the philosophy and history of marriage. But for lawyers, a few things regarding the future of marriage could be interesting:

Keeping promises

Many marriage vows include promises to “love and cherish” the other. But promising to feel love for a person or to make the feeling last is impossible and unenforceable, given the biology and nature of love. More realistic might be vows to treat one’s spouse justly, fairly and deal with them in good faith – but interestingly, this doesn’t seem to be a common marriage vow.

Philosopher Julian Savulescu considers though that neuroenhancements which increase feelings of bonding and emotional attachment (e.g. through oxytocin) might make it easier to keep “love vows”. They are also more likely to be effective, unlike date nights and romantic weekend trips.

But such technologies can be problematic in abusive relationships and pose serious questions about consent and the authenticity of our emotional life.

Temporary marriages

Marriage is a contract that does not expire until death, its legal terms cannot be altered (though people can compromise in practice) and many jurisdictions still make its dissolution costly and contentious. But people change over time: mentally, physically and in terms of preferences, experiences, ambitions, knowledge or desires. Metaphysical questions about personhood aside, the person you are with now is likely not the one you married five, ten or twenty years ago. Depending on your stage in life, your spouse may not be the right partner for you anymore.

Issuing temporary marriage contracts might help: if the spouses are content, they can renew the agreement. Conversely, an expiry date could take the pressure off some relationships that ran their course: instead of costly divorces, temporary marriages could already include arrangements for dealing with any jointly owned property after expiry: a marriage contract and pre-nup rolled into one.

Separating marriage from childcare

Poet Philip Larkin implied that many parents are woefully inept at raising kids to be smart, confident, fair-minded and emotionally mature adults. Arguably, that’s asking too much of any individual couple anyway: it takes a village to raise a child, as the saying goes.

Psychologist Robert Emery considers that couples who won’t divorce “because of the children” potentially do them harm. Children mostly need a stable environment and the feeling that they are loved. Parenting does not require that the parents are married or love each other.

Therefore, philosopher Laurie Shrage proposes legally splitting parental rights and duties from marriage, making them legally and factually separate things. Co-parenting agreements could serve the interests of the children best: they can include, but are not limited to, the biological parents but also step-parents, godparents or other people who exercise de-facto parenting functions. They would also protect the rights of important caregivers to the children, irrespective of marital status or biological relation.

In praise of arranged marriage

Humans have fallen in love since the emergence of our species. Until about two centuries ago, love was not a good enough reason to marry but nowadays it seems it’s the only commonly acceptable ground (in the Western world at least).

But passionate love fades after a few months and rarely lasts longer than two or three years. Due to the biology and psychology of passion, we see the loved one as we want them to be, not as they likely are. Our decision-making is impaired. Important questions are either not asked or unsatisfactory answers accepted, warning signs overlooked or denied, unrealistic hopes indulged. It’s worth asking if a person in such a state of mind should be allowed to sign a marriage contract at all.

If done well and in good faith, a lot of key conflict factors in marriages can be disclosed and discussed upfront in the due diligence process of an arranged marriage:

For instance, the prospective spouses’ motivation for marriage, education, socio-economic background, health, reproductive capacity, views on children, career, household management, lifestyle preferences, financial habits, family, friends and associations, political beliefs, religious views, sexual proclivities… the list can go on.

Given that marriage means a joining of estates and bodies with the view of building a life together, surely it makes sense asking the important practical and philosophical questions from the start and not leaving them to chance and wishful thinking.

Spouses in a love marriage can fall out of love while spouses in an arranged marriage can come to love each other. Love is a great bonus, but legally irrelevant to a marriage.

We commonly say that marriage is a journey of discovery: people discover who their partner really is. But in an arranged marriage people start the journey more informed, with more realistic expectations and can pre-empt or mitigate potential conflicts. Both types of marriage can work out great. But legally speaking, the ‘arranged marriage approach’ sounds preferable, if only to remind us that a degree of diligence should be exercised before entering into important agreements.

The author thanks Ms Joanna Bass for her revision and helpful comments on this article.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.

Back to top

Quote of the day

What's love got to do, got to do with it
What's love but a sweet old fashioned notion

Tina Turner, 'What's Love Got To Do With It' (1984)

Back to top

And finally... finger of suspicion

A mob boss is facing assault charges after allegedly biting off and swallowing a prison guard's finger.

Giuseppe Fanara, 60, has been serving a life sentence in Sicily for nearly two decades after murdering a police officer.

He allegedly attacked the prison guard during a routine cell inspection and bit his finger while wrestling on the ground, The Times reports.

A prison official said: "A search was carried out for the finger but it was never found, which led us to conclude that he swallowed it."

Mr Fanara, who belongs to the notorious Cosa Nostra, has since been transferred to a high-security prison in Sardinia.

Back to top

Denovo introduces DocuSign

The eSignature solution trusted by hundreds of millions of users

Denovo recognised that the logistics of signing in ink was fast becoming more and more impractical. Now, with over 44% of the UK working from home, many of whom may remain that way when things get back to normal, and the limitations on access to printers, scanners and post, Denovo have accelerated their plans to integrate DocuSign into their software to meet the needs of their customers.

Grant Yuill, Head of Marketing at Denovo said of the new partnership, “From contracts and offer letters to account openings and invoices, agreements in the legal profession are everywhere. With DocuSign eSignature, our law firm partners will have the ability to complete contracts, approvals, and other agreements in minutes rather than days. And because it's fully integrated with our whole practice management system users can extend these benefits to other stages of the agreement process, such as preparing, acting on, and managing agreements.”

Benefits of DocuSign Integration with CaseLoad

  • Electronically sign, prepare, act on, and manage agreements to deliver great experiences for your clients. 
  • Use DocuSign to complete approvals and agreements in minutes or hours — not days — from almost anywhere in the world. 
  • Quickly and securely access and sign documents. 
  • Easily upload and send documents for others to sign. 
  • Send reminders and check signing status almost any time. 
  • Get to "yes" faster with DocuSign electronic signatures.
  • Easily create DocuSign documents via Document Creation Wizard. 
  • Documents Automatically sent to DocuSign for Client and 3rd party delivery. 
  • Emails sent to you when clients and 3rd parties view, and when clients sign. 
  • Events automatically added when clients and 3rd parties view, sign and complete the documents.
    Events for the file can be automatically populated on Viewing, Signing, Accepting, Declining, and Completion. 
  • Add input fields for clients and 3rd parties to interactively fill in — inside the document itself. The completed fields can be automatically saved back to Data Pages on completion.

Steven Hill, Denovo’s Operations Director, said about the recent integration: “In the current climate and beyond having the ability to sign documents electronically has never been more crucial. The increasing numbers of people working remotely has led to businesses up and down the country facing challenges with how documents and contracts can be signed and concluded.

"Signing electronically will eliminate many of these issues, allowing all parties to sign a document in seconds. Recent adopters have been quick to give their positive feedback, with one of our key partners telling us that they signed up 15 new clients in the space of 15 hours.

"A process that would have normally taken days, if not weeks. Anyone who is reluctant to use electronic signatures, or concerned about the risks, please be aware that integrations such as the one between Denovo’s CaseLoad software and DocuSign are fully supported by the Law Society of Scotland, England and Wales.”

To learn more about Denovo’s integration with DocuSign click here, email or call us on 0141 331 5290

Back to top

In defence of POCA confiscation – the benefit of less Benefit

As forensic accountants we are often instructed as part of the defence for an individual who has been convicted of an offence which triggers confiscation proceedings under the Proceeds of Crime Act (‘the Act’).

The Act deals with a wide range of matters relevant to UK law on proceeds of crime issues which, at first glance, can be somewhat perplexing. The crux of the matter here is that the onus is on the accused to prove that they have not benefited by the amount calculated by the prosecutor… so not ‘innocent until proven guilty’ in this scenario!

The majority of cases that land on our desk start with a Statement of Information (‘SOI’) produced by the prosecutor. This contains various tables of financial data, usually across a period of six years, and often a significant Benefit Amount, which can create panic for the accused.

What can be done in defence?

We have worked on numerous cases and found that, with analysis and investigation, we are often able to reduce this Benefit considerably, and reach an agreement with the Crown on a lower confiscation order.

Some of the reasons for this may be, the individual is self-employed and has failed to declare all of their income, or it is just unclear what the source of the income is at first glance. Sometimes however, the income has been declared, but has been omitted from the SOI prepared by the Crown, as further explanation is required. From a forensic accountant’s point of view, for the defence, there would seem to be an argument for getting involved in the preparation of SOIs at a much earlier stage.

Individuals defending these cases often find it difficult to justify certain lodgements or expenditure within their bank accounts, but with our expertise, the information and queries can often be put to the accused in a manner that allows them to recall what a transaction related to, even if it did take place more than six years ago! We assist the accused and their appointed solicitor by preparing a court compliant report, presenting the information in a way to assist the Court in determining the level at which the confiscation order may be set.

Consequences for non-payment

An order is set at the lower of the Available Amount (the amount of assets identified as being owned by the accused at the time of the confiscation) or Benefit Amount. Should this order not be paid within the prescribed timeframe, the Court may impose a custodial sentence. The length of default sentences for non-payment of the order vary in line with the monetary value:

  • £10,000 – 6 months;
  • £500,000 – 5 years;
  • £1 million – 7 years; and
  • Thereafter 14 years.

As confiscation orders are no longer extinguished after sentences for defaulting on payment are served, and with powers available for prosecutors to increase confiscation orders after they are made (based on the agreed Benefit Amount), we believe that it is important that such orders are thoroughly reviewed and challenged wherever necessary.


As the onus is placed on the accused to verify and agree the Crown’s findings, it is important that each schedule in the SOI, along with the supporting documentation, is scrutinised to identify any discrepancies.

The team of forensic accountants at Armstrong Watson have a wealth of experience in this field and a proven track record in assisting individuals reach a fairer outcome under the confiscation regime.

Should you require any further information in relation to the Proceeds of Crime Act and confiscation orders, please do not hesitate to get in touch with Paul Black.

Paul Black: 07469855447 or 01412330703

Back to top

Scottish Criminal Law Essentials: Virtual Summit with Hey Legal & Denovo

Denovo are proud to sponsor Hey Legal’s first-ever virtual event – The Scottish Criminal Law Essentials Summit which will be held online on 9 and 10 September.

The summit will feature a blend of pre-recorded talks, live Q + A sessions, and roundtable discussions from some of the most senior Scottish criminal lawyers.

The event has been curated by Edith Forrest, Advocate and we have 12 expert speakers of the highest repute, including:

  • Lord Matthews, a High Court Judge;
  • Eminent QCs such as Donald Findlay QC and Frances McMenamin QC;
  • Advocates; Solicitor Advocates; and academics.

Several pricing options are available, including a reduced rate for students and trainees, and a Super early bird offer available for the first two weeks post-launch.

Find out more and sign up here.

Back to top

Global Language Services Ltd

Technology in the 21st Century is providing us with the means to communicate our thoughts and ideas across the planet in a way that would have been unthinkable, even 10 years ago.

However good the technology is, it cannot pick up the subtleties of a language, the culture that underpins it, or even the humour that oils many of our conversations.

For this reason there has always been a need for skilled interpreters and translators and probably always will. That’s where Global Language Services Ltd can help you.

Not only do we have the language service talent that you are likely to need, we also have a track record that spans Government, health, justice, commercial and private sector contracts.

So, whatever you want to achieve in a different language, we’re on your side from the word ‘go’.

We go out of our way to help with any translation and interpreting requirements and you can test that simply by picking up the phone and getting in touch. Calls are answered by trained operators with no call centres – just real people determined to help you achieve your language service requirements as quickly as possible.

If you’ve been searching for Professional Translation or reliable Interpreting Services at competitive prices, we like to think that Global will be your long-term partner after your first project with us.

With offices in Glasgow, Edinburgh, Inverness and Aberdeen we are committed to finding local interpreters and translators wherever possible. Our reach, however, goes much further than Scotland and we are happy to take translation projects from across the world.

Call Today on 0141 429 3429 to discuss your Project or email

Back to top

Latest Jobs

Deputy Legal Secretary to the Lord President – Supreme Courts



Full time (37 hours per week)

Number of posts: 2

Starting salary from: £48,662 per annum

Working out of Parliament House based in the heart of Edinburgh, these are rare and exciting opportunities to work in the Lord President’s Private Office providing critical legal and policy support directly to the Lord President in his many non-judicial functions. Being legally qualified you will work alongside an already established dynamic and forward-thinking team.

As a minimum, you will have a 2:1 law degree or equivalent and must be a practising member of the Law Society of Scotland or the Faculty of Advocates.

In exchange for your specialist knowledge, expertise and contributions, we offer a salary that comes with annual increases and a comprehensive pension and holiday package too. The growth and progression of our employees is critical to our success so you will have lots of opportunity to learn, develop and expand your knowledge and skills whilst with us. All of our staff receive:-

25 days annual holidays (rising to 30 after 5 years)

11.5 Public and Privilege holidays annually

Flexible working arrangements

Exclusive offers and discounts

Civil Service Pension

Career Progression

Access to funding for further education

To find out more about these roles and essential requirements required to apply please access the details on the Scottish Courts and Tribunals Service Recruitment Site

We will require you to undertake a legal test as part of the recruitment process if invited to interview.

If you are interested in this challenging and rewarding opportunity, you may apply online at For further information on the post please contact Andrew Campbell, Legal Secretary to the Lord President, Parliament House, Edinburgh, telephone 0131 240 6851 or e-mail

The closing date for the post is 2 October 2020 at 17:00 hours

Interviews will be held week commencing 26 October 2020. 

By virtue of the Rehabilitation of Offenders Act 1974 (Exclusion and Exceptions) (Scotland) Order 2013 (as amended), the protections of the Rehabilitation of Offenders Act (1974) are disapplied to this appointment in the Scottish Courts and Tribunals Service. This permits us to ask applicants to disclose details of all unspent convictions, unspent cautions (from England, Wales and Northern Ireland) and spent convictions for an offence listed in Schedule A1 of the 2013 Order but only if: 15 years have not elapsed since the date of your conviction if you were aged 18 or over on that date; or 7 years and 6 months have not elapsed since the date of your conviction if you were under 18 on that date.  Any spent conviction that is a ‘protected conviction’ does not require to be disclosed.  Individuals without existing security clearance will require a standard level Disclosure check completed before employment can commence.  Further information on the different types of convictions that should be disclosed in this application form and which are included in a Standard Disclosure can be found at

Back to top

Legal Executive – NHS National Services Scotland

Central Legal Office

Legal Executive

Permanent, 37.5 hours per week

Band – 5, £23,023 – £29,608

Location – Anderson House

Ref: 29813

As a vital part of NHSScotland, NHS National Services Scotland’s mission is to enable and support the delivery of better health and better care, working in partnership. We do this by providing a range of specialized support services that enable NHS Boards to focus their efforts on delivering health improvement and patient care.

The Central Legal Office (CLO) provides comprehensive legal services to Health Boards and Special NHS Entities in Scotland, covering all aspects of litigation and employment law, property transactions and commercial contracts.

A vacancy has arisen within the Litigation Department for Legal Executives. The role principally involves supporting the litigation solicitors and assisting them in the conduct of court business. The post holder will maintain their own case load of personal injuries claims and will also assist solicitors by taking precognitions and attending consultations and court hearings with counsel. The role may also involve the marketing of the services of CLO by the production of updates and the organization of client training seminars.

You will have legal or claims handling experience preferably within a busy office environment.

You will be a team player with sound decision making qualities, excellent communication and negotiation skills and the ability to work under pressure and to prioritize. You will require to travel within Scotland and a clean driving license is desirable.

The successful candidate will be required to undergo a PVG Scheme Disclosure Scotland check.

Any candidate who has lived/worked overseas for more than 12 months in the preceding 5 years will also be required to provide a criminal record check from the appropriate overseas agency.

Our benefits package includes pension scheme, comprehensive range of work life balance policies, occupational health services, learning resource centres and discounted leisure, financial and shopping benefits.

For an informal discussion on the post, please contact Michael Stewart, Head of Litigation on 0131 275 7848.

Further information on NSS is available from:

Closing date for completed applications is 17th September 2020.

Please note that the majority of correspondence is sent by email only, so please check your email regularly (including junk folders).

NHS National Services Scotland is an equal opportunities employer and as committed participant in the disability confident scheme, guarantees to interview all disabled applicants who meet the minimum criteria for our vacancies

Back to top

Trainee Solicitor (2 years fixed term) – Clan Childlaw

SALARY: £19,500 per annum in year 1 and £22,500 per annum in year 2 

HOURS OF WORK AND LOCATION: Full time (35 hours a week)


  • To work as part of the legal team to deliver legal information, outreach, advice and representation services within Clan Childlaw.
  • To fulfil the obligations under your training contract and achieve competency in the Professional Education and Training Stage 2 outcomes.  

Clan Childlaw, through support from the Legal Education Foundation’s Justice First Fellowship, are delighted to host a Trainee Solicitor starting in January 2021.

Clan Childlaw is a unique legal and advocacy service which believes the law needs to work better for children and young people. It delivers free, confidential legal advice and representation in Edinburgh, the Lothians and Glasgow, and provides free information and guidance about children's rights and the law to children and young people, carers, and professionals thoughout Scotland.

Candidates for this role must have passed (or expected to pass by 31st October 2020) the Diploma in Professional Legal Practice and be able to show a strong commitment to social justice. You will be based in Edinburgh but travel is an essential part of the job.

For more information on the JFF programme please visit the JFF website. 

A link to the job description and person specification can be found here.

The application form can be accessed hereAll applications must be submitted via the JFF website, not through Clan Childlaw.

The deadline by which to apply is 5pm on 14th September 2020.

To find out more about the experience of current and past JFF trainees at Clan, please see:

  • blog post by current trainee Louise Herd three months into her traineeship
  • Q&A with now former JFF trainee and now qualified solicitor Jenna Hall 
Back to top

Associate – MacRoberts

Employment, Glasgow/Edinburgh/Dundee

The Role

We currently have an opportunity for someone at Associate level to join our Employment team.

Key Responsibilities

The successful candidate will be involved in a variety of employment related matters including advising employers and senior executives across the spectrum of employment law; representing clients in Employment Tribunals; and providing support to our commercial and corporate colleagues in and non-contentious work. The successful candidate will also be involved business development activities.

Experience Required

Applicants should have a minimum of 4 years’ post qualifying experience, preferably in an Employment law role although candidates with a strong track record and some employment law experience who wish to specialise will also be considered. They should have the ability to deal with a broad range of matters including tribunal representation, corporate support work and client training.

Key skills

In addition to the above, the successful candidate will require excellent interpersonal and communication skills. Applicants must be able to juggle a busy and varied workload, have an enthusiastic approach to work and enjoy working in a team environment.


You will be based primarily in one of our above offices with remote working as appropriate in the current circumstances. The successful candidate will from time to time be required to work in other offices; and across the UK for Employment Tribunal appearances.

Core hours of Work

Monday to Friday, 9:00am – 5:00pm, and this role requires additional working hours as necessary to meet client demand.

We are open to discussing flexible working arrangements providing client and business needs can be met.

How to apply

Please apply via our recruitment portal

For further information about this vacancy please contact the People & Development Department at or telephone 0141 303 1100.

MacRoberts LLP is an equal opportunities employer.

Back to top

Dispute Resolution Solicitor – Jones Whyte Law

Hours: Full Time, 35 hours (Flexible Working)

Location: Remote with Glasgow base

Salary: Competitive

Description of the Role:

Jones Whyte Law is a young, dynamic and forward-thinking firm.

As part of our continued growth we require a Dispute Resolution Solicitor to join our Commercial Litigation team.

The successful candidate will be responsible for managing their own varied commercial and civil caseload whilst ensuring the best outcome for our clients.

We are looking for an ambitious, motivated Solicitor who is committed to providing high quality legal services.

Key Responsibilities:

  • Acting for a broad range of clients in resolving disputes by means of court action and all forms of Alternative Dispute Resolution
  • Providing detailed and strategic advice to clients on the management and resolution of their disputes
  • Representing clients in sheriff courts throughout Scotland and instructing Counsel in the Court of Session
  • Drafting, reviewing and amending pleadings, notes of advice and all documents related to the dispute
  • Providing guidance and support to the partner and other solicitors within the department
  • Supporting business development within the department

Essential Criteria:

  • Good knowledge of Court practice and procedures
  • Court advocacy experience
  • Experience of commercial litigation and dispute resolution in Scotland
  • Excellent relationship and client handling skills
  • Strong work ethic and team player
  • Strong communication and organisation skills
  • Ability to work independently
  • Positive outlook

What We Offer:

We invest in our staff and offer training (legal and otherwise) far beyond your prescribed professional requirements.

Modern city centre office with flexible and home based working.

Competitive salary and package.

A young, collegiate working environment.

Interesting and varied Litigation workload

To apply for the role, please submit your CV and covering letter, including notice period and salary expectations to

Back to top

Conveyancer/Paralegal – Cartys Solicitors

Our firm seeks an experienced conveyancer/paralegal to join our successful conveyancing team within our Hamilton office.

To be considered for this role you must have hands-on experience managing a wide range of property matters from inception to completion.

Ideally you will be self-motivated, organised, be self-sufficient in IT skills and be able to manage your own caseload.

Please forward your CV to

Back to top

Solicitor – Cartys Solicitors

We are a busy, long established, multi discipline practice, with 4 offices across Lanarkshire.

We have a vacancy for a motivated solicitor, based in our Blantyre office. The job would suit someone with a background in Family Law. There is a full caseload awaiting the successful applicant.

Salary is negotiable and commensurate with experience.

As a firm we pride ourselves on our ability to promote from within and there is a clear career path for the chosen candidate.

Please forward your CV to

Back to top

Private Client Solicitor – McCash & Hunter LLP

An excellent opportunity for a senior solicitor to work and enjoy a superb work-life balance in Perthshire.

We are looking for an experienced private client solicitor competent in dealing with Wills, high value trusts and executries, tax planning and related matters. The successful applicant will be highly organised, flexible and enthusiastic. You will have a minimum of two years' experience in Trust and Executry work.

It is an opportunity to expand your knowledge and experience in a team working with a high value, respected client base and is also an opportunity for the right candidate to build and enhance a good reputation and develop your career in a motivated environment.

Genuine prospects for the right candidate.

Please apply in confidence to Alan Davies, Managing Partner, McCash & Hunter LLP, 25 South Methven Street, Perth PH1 5PE (DX PE4 Perth) or

Back to top

Conveyancing Solicitor – JHS LAW

As one of the largest Law Firms in the south west of Scotland, we offer a diverse range of legal services to an extensive client base across Dumfries and Galloway.

An opportunity has arisen for an experienced Conveyancing Solicitor to join the specialist Property Department of our busy Dumfries office on a full-time basis.

The successful candidate will possess a “can do” attitude and be capable of handling all aspects of residential conveyancing work. The ability to undertake commercial conveyancing, agricultural transactions and leasing (both residential and commercial), would be advantageous.

Working closely with a Partner-led team of Solicitors and other qualified staff, the successful candidate will also enjoy the support of our experienced Estate Agency and secretarial teams. We are looking for an innovative and driven Solicitor who can make a positive contribution to developing our business.

This is an excellent opportunity for someone looking to establish themselves in the local community and to be an integral part of our friendly, growing and forward-thinking legal practice, where good career progression prospects are on offer.

The benefits of the work-life balance to be enjoyed in Dumfries and Galloway are well-famed. We are surrounded by breathtaking countryside where the hills, rivers and forest parks provide the ideal setting for you to explore by foot, bike or boat. Beautiful beaches are only a short drive away along the stunning Solway Coast. The region is also home to many excellent golf courses, mountain bike centres and the Galloway Sailing Centre.

Interested applicants should send their CV and a covering letter / email to:

Mrs Sharon Galloway, Partner


8 Bank Street

Dumfries, DG1 2NS

Email:         Tel: 01387 739 000

Back to top

Delegated Legislation Manager - Senior Solicitor – Scottish Parliament

Salary: £63,442 to £68,959

Working pattern: This is a full-time permanent post and our normal working week is 37 hours. We currently operate a wide variety of work patterns, successfully balancing lifestyle choices with business requirements

Location: Holyrood, Edinburgh

Closing date: 12 noon on Wednesday 9 September 2020

Are you an experienced solicitor qualified to practise in Scotland? Do you have experience of leading and motivating others to deliver projects or programmes successfully at pace? Do you have a sound understanding of the devolution settlement and the development and interpretation of legislation? 

We have an exciting new opportunity for an experienced and politically astute solicitor. You will be responsible for managing the effective delivery of high-quality legal advice on the scrutiny of legislation in this complex and developing constitutional landscape. Being able to demonstrate advanced legal analytical, programme management, communication and leadership skills, this varied role will provide you with the opportunity to work on Scottish subordinate legislation and legislative competence and constitutional issues at a senior level in a dynamic political environment.

If you have a track record of acquiring specialist expertise quickly and are forward thinking, strategic in approach, with a creative mindset, we’d love to hear from you. Further information and details of how to apply can be found on our website:

Closing date for applications: 12 noon Wednesday 9 September.

Back to top

Send your vacancies to Scottish Legal News

Get your legal job vacancies listed on Scottish Legal News by contacting our advertising manager, Jeff Anderson, on

Back to top


UKELA Scottish Conference Sponsored post

The UK Environmental Law Association (UKELA) will hold its annual Scottish conference on Thursday 24 September 2020.

Conference topics include environmental standards and governance, decarbonisation and the net-zero target, climate change, aquaculture and duties under the Marine Act. There will also be a review of recent cases involving renewable energy schemes.

Booking for the event is now open. The conference is free for existing UKELA members. Non-members are also welcome. Registration for non-members is £50 (£10 for unwaged) and this includes free membership of UKELA for the remainder of 2020.

Advance booking is recommended and further information can be found at UKELA Scotland Conference 2020.

Back to top

Send your events to Scottish Legal News Sponsored post

Get your events listed on Scottish Legal News by contacting our advertising manager, Jeff Anderson, on

Back to top

Please note that Scottish Legal News accepts no responsibility for viruses. It's your responsibility to scan attachments.

Scottish Legal News is a digest of news stories from many sources. We strive to be accurate. If you see anything in the bulletin which is misleading or wrong, please contact the Editor

Copyright © 2020 E News-Now Ltd, All rights reserved.