Latest News
31/08/2010 - LM v Mental Health Tribunal for Scotland and another – Shf Pr Taylor
A patient, LM, appealed the decision of a Mental Health Tribunal refusing her application to revoke a Short Term Detention Certificate which had been granted by her Mental Health Officer. The Appeal related to the interpretation of section 44 of the Mental Health (Scotland) Act 2003, including arguments about the impact of article 5 (right to liberty) of the European Convention on Human Rights. The Sheriff Principal rejected the appellant’s arguments, and found that her remedy for unlawful detention lay under section 291 of the 2003 Act.
Kay Springham acted for the Mental Health Officer in the Appeal.
03/08/2010 - Compass Chambers Professional Disciplinary Proceedings Bulletin
Welcome to the second edition of the Compass Chambers Professional Disciplinary Proceedings Bulletin. There have been a number of unsuccessful challenges to the decisions of disciplinary panels recently, highlighting the difficulties in demonstrating that a decision making process was flawed. If you wish further information on any of the topics or cases detailed, or if you would like to receive this and any future bulletins, then please do not hesitate to contact Grace Moran - grace.moran@compasschambers.com
For further details about the Compass Chambers Professional and Disciplinary Team, please click here
03/08/2010 - Kaj Andersen v Mohammed Hameed and Esure Services Ltd [2010] CSOH 99
This case concerned a 16 year old boy who took his parents car whilst they were on holiday. He was, of course, unlicensed and uninsured. Following collecting various friends, including the pursuer, he crashed. The pursuer suffered injuries for which he raised an action of damages against the defender. Esure Services Ltd were road traffic insurers in terms of the Road Traffic Act 1988, and were Party Minuters in the process. Quantum was agreed and proof took place on liability only.
The issues before the Court were ex turpi causa and s.151 of the Road Traffic Act 1988. The common criminal activity founded upon was that the pursuer was aware that he was under age, and was driving the car without the permission of the owners. A successful defence on that basis would mean that the defender owed no duty of care to the pursuer. Success would release both the defender and, as a result, the party minuters. The party minuters had an additional “knowledge” defence under s.151 of the 1988 Act, which could have resulted in them having no obligation to satisfy any decree against the defender.
Following proof, Lord Tyre held that the pursuer was aware of the salient matters and that, accordingly the defender should be assoilzied.
Richard Pugh, of Compass Chambers represented the Defender; while David Sheldon, also of Compass Chambers, represented the Party Minuters.
http://www.scotcourts.gov.uk/opinions/2010CSOH99.html
12/07/2010 - Compass Chambers Reparation Bulletin - July Edition
Welcome to the July edition of the Compass Chambers Reparation Bulletin.
There have been some interesting developments this month, both in relation to the common law and statutory provisions governing the law of reparation. Thus, it would seem that Lister v Hesley Hall [2002] 1 AC 215 may not be the last word on vicarious liability, statutes may not always mean what they – clearly – say they mean, the court’s power to dismiss an action for inordinate delay continues to be refined and developed, and a judge’s - exceptional - power to withdraw a case from a civil jury has been restatedFor further details about the Compass Chambers Reparation Team, please visit our Reparation page.
If you wish to receive this and future bulletins please contact Grace Moran on grace.moran@compasschambers.com.
08/07/2010 - Caledonian Challenge
Over the weekend of 12/13 June, members of Compass Chambers proved that their talents extended beyond the courtroom when completing the Caledonian Challenge (54 miles of the West Highland Way) in under 19 1/2 hours.
Despite rather less preparation than would normally be expected from Compass, a team comprising of Peter Gray, Robert Milligan, Richard Pugh and Craig Murray finished 28th of the 179 teams competing to complete the course in under 24 hours. The highlight of the walk was undeniably striding past the team from Digby Brown that had started 3 hours earlier, although by the end even Craig’s normally immaculate bouffant was looking as limp and exhausted as the walkers.
In the process, the team raised over £2,000 in sponsorship for the Scottish Community Foundation. Many thanks to those who supported the team through their donations.
07/07/2010 - Ben Nevis
The Caledonian Challenge followed a Compass Chambers assault on the snowy peak of Ben Nevis at the end of May. Although that particular weekend proved to be more of a challenge to the liver than the feet, it also helped raise money for the Haiti disaster. Again, many thanks to those who sponsored the climbers.”
29/06/2010 - HMA v Alister Clark: Causing death by dangerous driving – dangerous state of vehicle
This was one of the comparatively rare prosecutions under s.1 of the Road Traffic Act where a driver is prosecuted because it ought to have been obvious to a competent and careful driver that driving a vehicle (which in this case was a tractor & trailer combination) in its current state would be dangerous.
The accused was towing a trailer behind his tractor when the trailer uncoupled and rolled into the path of an oncoming vehicle, killing its driver. The accusation against the accused was that the 5th wheel coupling used to connect the trailer to his tractor was in such poor condition that it would not operate correctly and secure the trailer in place. The accused was alleged to have failed to take other steps to secure the trailer, with the result that it detached during his journey and caused the fatal crash. He was also accused of attempting to pervert the course of justice by inserting a bolt after the accident to make it look as if the 5th wheel coupling had been properly secured at the time of the crash.
Defence investigations established that, in fact, the condition of the 5th wheel coupling was not the cause of the accident. Instead, it was shown that the trailer had “miscoupled” when first connected to the 5th wheel. The accused was still culpable, because he failed to properly inspect the coupling. Had he done so, he ought to have detected the fact that the trailer was not properly coupled.
Alister Clark was sentenced to 2 years imprisonment. He was represented by Jamie Gilchrist QC of Compass Chambers.
23/06/2010 - 11/6/2010 - PF (Banff) v Frank Ralph
At Banff Sheriff Court on 11th June 2010, Frank Ralph was found not guilty of a charge of causing the death of a motorcyclist by driving without due care and attention.
On 9 April 2009, Mr. Ralph was driving a car and trailer into Portsoy. The road was subject to a 30mph speed limit. He indicated and turned right across an oncoming lane to enter a petrol station. As he did so a motorcycle travelling at high speed in the oncoming lane struck him. As a result of the collision, the motorcyclist sustained fatal injuries. The Sheriff held that the motorcycle had been travelling at a grossly excessive speed and that, in all the circumstances of the case, Mr. Ralph had met the standard of driving required of the competent and careful driver.
Steve Love of Compass Chambers represented the accused.
04/06/2010 - Jillian Martin-Brown joins Compass
Compass Chambers is delighted to welcome Jillian Martin-Brown on board after she called to the Bar earlier today.
Jillian trained as a solicitor with Shepherd+ Wedderburn in Edinburgh and practised there for three years after qualifying, before moving to Dundas & Wilson for a further three years. She has practised in a wide variety of areas, including: Fatal Accident Inquiries, Professional Discipline & Regulation, Clinical Negligence, Personal Injury, Insurance Litigation and Health & Safety.
For further information on Jillian’s profile, please click here.
01/06/2010 - 'Psychiatry Live' Conference
Malcolm McGregor of Compass Chambers is to attend and provide a seminar and discussion at the 'Psychiatry Live' conference which has been organised by AstraZeneca Pharmaceuticals. The conference will take place in Glasgow between 10-11th June.
28/05/2010 - Debate - Exploring the Rule of Law and National Identity.
Maggie Scott, QC of Compass Chambers is to speak at the debate which the John Smith Memorial Trust and the Faculty of Advocates are holding on the 6th June. The debate will explore issues surrounding the Rule of Law and national identity.
26/05/2010 - Compass Chambers Regulatory Defence Bulletin - May edition
Welcome to the May edition of the Compass Chambers Regulatory Defence Bulletin. The Bulletin, published bi-monthly, will keep you up to date with developments relating to regulatory crime, in particular health and safety, environmental and corporate financial issues.
This month we focus on an increasingly contentious & difficult issue in health and safety prosecutions ~ namely the amount of financial information which ought to be provided to a court which is assessing a corporate offender’s ability to pay a financial penalty. We highlight recent developments which will have significant impact on the preparation and presentation of mitigation on behalf of convicted organisations.
To subcribe to these bulletins, please contact grace.moran@compasschambers.com
For further details about the Compass Chambers Regulatory Defence Team, please click here
18/05/2010 - Steve Love completes Hearts & Heroes Challenge for second year running
For the second time in as many years, Steve Love from Compass Chambers was part of a successful team who completed the Hearts and Heroes Challenge over the weekend.
Steve, as a member of Team Horsetiger, finished the 29 mile challenge, which covered a section of the Southern Highland Way in the Scottish Borders, from St Mary's Loch to Melrose, in 9 hours, 58mins and 56 seconds – improving on their time of 10 hours last year.
The team raised in excess of £4,000 for Poppy Scotland and Hearts and Balls which raise vital funds for Armed Forces Veterans and injured rugby players.17/05/2010 - Ben McCreath Fatal Accident Inquiry: Determination Issued
Sheriff Stephen has issued her determination in the Inquiry into the circumstances of the death of Ben McCreath. On 14 February 2006, at the Princes Exchange Office Building in Edinburgh, Ben, aged 21 months, fell through a gap in a glass balustrade to the foyer 4.75 metres below.
At Edinburgh Sheriff Court throughout several weeks in January and February 2010, the Inquiry heard evidence which focussed on: (i) the management of the building, particularly the duty to carry out risk assessments of the common areas under the Management of Health & Safety at Work Regulations 1999; and (ii) the building regulations then in force (with which the building had complied). At the time of the accident, buildings in certain categories, including office buildings, did not require to comply with the “100mm rule,” which otherwise restricts gaps to a maximum of 100mm. Had the gaps in the balustrade been restricted to 100mm, ergonomic evidence heard by the Inquiry established the accident would not have occurred. Sheriff Stephen has recommended that the 100mm rule should be applied to all buildings.To read the determination in full, please click here.
Peter Gray QC of Compass Chambers represented Connaught Compliance Services Ltd
Barry Smith of Compass Chambers represented the City of Edinburgh Council.
17/05/2010 - Successful defence re Royal College of Surgeons
Malcolm McGregor acted as junior counsel for the Royal College of Surgeons of Edinburgh in successfully defending a claim for damages by former surgeon, Robert Phipps who alleged he lost his employment as a consultant at Bradford (and ultimately his career as a surgeon) as a consequence of the RCSE’s proposed withdrawal of his accreditation as a specialist surgeon
14/05/2010 - Peter Gray, QC completes London Marathon!
A few weekends ago, while most of us were enjoying a lazy Sunday sleep in, Compass Chambers Director, Peter Gray, QC was pounding the streets of London, competing in the Virgin London Marathon.
Peter managed to complete the race in one piece (!) and notched up a very respectable time of 4 hours and 13 minutes.
Peter and his daughter Ishbel managed to raise in excess of £10,000 for the NCYPE epilepsy charity and would like to extend their thanks to all for the tremendous support received, both financial and otherwise.10/05/2010 - Proceeds of Crime Seminar
Barry Divers from Compass Chambers will present a seminar for the Royal Faculty of Procurators this Thursday 13th May entitled Proceeds of Crime.
The seminar, to be held from 5.30pm in the Royal Faculty Hall, will cover everything you need to know about the current law, practice and procedure of criminal confiscation in Scotland. The freezing and confiscation of criminal assets by the Crown has become an important feature of the criminal justice system in recent years. This seminar will offer essential end-to-end guidance on dealing with such cases, from the granting of restraint orders, through the preparation and conduct of confiscation proofs, to the enforcement of confiscation orders.
Barry regularly appears for the Crown in all aspects of confiscation work and he was a member of the committee chaired by Lady Dorrian, which recently reviewed confiscation procedure in the High Court. For more information on Barry’s practice, please click here.
To attend this event, please complete the online booking form.
05/05/2010 - Compass Chambers Reparation Bulletin: May edition
Welcome to the fourth edition of the Compass Chambers Reparation Bulletin. The Bulletin, published bi-monthly, will keep you up to date with all developments relating to reparation, including recent cases, legislative changes, including details of proposed Bills, and any policy updates in what is a fast changing legal landscape.
In this edition the focus is on recent case law in the field of asbestos related litigation, claims under the Protection from Harassment Act 1997 and slips and trips at home. For further details about the Compass Reparation Team, please click here or to subscribe to these bulletins please email grace.moran@compasschambers.com .
30/04/2010 - Compass take on Caledonian Challenge
Saturday the 12th June will see five Compass members set out on foot from Fort William on “The Walk of their Lives” as they attempt to complete the 54 mile Caledonian Challenge in under 24 hours.
The ambitious expedition will take Compass members Robert Milligan, Richard Pugh, Craig Murray, Peter Gray and deputy clerk Michelle Williamson through some of Scotland’s most “famous, remote, rugged and stunningly beautiful landscapes”. Starting at Gairlochy, the team will walk the famous Great Glen Way and West Highland Way footpaths via Checkpoints at Fort William, Kinlochleven, Glencoe Ski Centre and Inveroran, before finishing the Challenge (hopefully together and in one piece!) at Auchtertyre.
The team have started intensive training after a 24 mile “jaunt” gave them wobbly legs and a wake up call as to what will actually be in store for them once they cross that starting line. Further walks are planned, including a night walk to enable them to get used to stumbling about in the dark.
By competing in the Challenge, the Compass Team have pledged to raise at least £2,000 for the Scottish Community Foundation, an organisation which supports projects seeking to build strong, successful communities in Scotland. To help Compass raise support and awareness for this cause - please visit the Compass Chambers team page to offer your support in whatever form you can.
27/04/2010 - HMA v Hamilton Farmers (East Lothian): firm fined £20,000 over fatal accident
At Haddington Sheriff Court on 26 April 2010, the firm of Hamilton Farmers (East Lothian), pled guilty to a breach of section 2(1) of the Health & Safety at Work etc Act 1974.
On 3 June 2008, during the construction of walls for a cattle enclosure, a farm worker was fatally injured when a concrete wall panel he was manoeuvring into place toppled on top of him. The partnership accepted that the job had been inadequately planned, no risk assessment had been carried out, the system of work employed was unsafe and unsuitable lifting equipment had been used. Following submissions, the Sheriff imposed a discounted fine of £20,000.
Barry Smith of Compass Chambers represented the accused.
09/04/2010 - Compass Annual Aberdeen Conference Almost Full!
The Compass Chambers Annual Aberdeen Conference is just under one month away and due to extremely high demand, we find ourselves advertising the last few remaining spots .
The Conference this year will take place on Thursday 6th May 2010 at the Marcliffe at Pitfodels, Aberdeen starting with registration at 1pm.
The conference will concentrate on recent procedural and policy developments in Compass Chambers' core areas of Reparation and Regulatory Crime. Members of Compass who specialise in these areas will lead the seminars.
Following the conference at 5pm there will be a buffet and drinks reception to which all delegates are invited.
The conference is FREE to attend and delegates can claim up to 3 hours CPD.
For more information or to book a place at the conference please contact grace.moran@compasschambers.com
26/03/2010 - Alastair Brown joins Compass Chambers
Compass Chambers is delighted to extend a warm welcome to Alastair Brown, Advocate who called to the Bar this afternoon.
Alastair is an experienced Criminal Law practitioner, who was (as a solicitor advocate) an Advocate depute for nearly 6 years. Before that, he was a senior and long-serving member of the Procurator Fiscal Service, where his work included, particular responsibilities in relation to financial crimes, regulatory prosecutions and human rights law. As editor of Greens’ Criminal Law Bulletin, assistant editor of Scottish Criminal Case Reports, a contributor to loose-leaf publications and the author of several books, he is a prominent commentator on Scots criminal law. He holds a doctorate in international criminal law and, on the nomination of the UK Government, he serves as an expert evaluator for the Group of States against Corruption, evaluating, and reporting with recommendations on, the anti-corruption law and practice of countries as diverse as Azerbaijan and Italy.
Please click here for further information relating to Alastair and his practice.
22/03/2010 - Compass Chambers Regulatory Defence Bulletin: March edition
Welcome to the March edition of the Compass Chambers Regulatory Defence Bulletin. After a break from publication in January, the Bulletin returns this month with a round-up of developments in health and safety. The Bulletin, published bi-monthly, will keep you up to date with all developments relating to regulatory crime, in particular health and safety, environmental and corporate financial issues.
If you wish to receive this and other future bulletins please contact Grace Moran on grace.moran@compasschambers.com
12/03/2010 - Peter Gray QC to run London Marathon
On 25 April 2010 Peter Gray of Compass Chambers is going to run the London Marathon in a bid to raise funds on behalf of NCYPE, a charity which provides for the needs of youngsters suffering from severe forms of epilepsy. To read Peter’s story go to www.justgiving.com/peterlgray . If you wish to make a donation, you can do so online or by sending a cheque to Peter at the Chambers’ address.
04/03/2010 - Compass Chambers Ben Nevis Fundraiser
Roll by, thou dense and damp pea-soupy shroud!
Do we thus reach the highest point in vain?
Roll by! we say, and leave behind no cloud
Our view to mar, […]
Grand old Ben*Ben Nevis is the highest peak in the British Isles. On Saturday 29th May, Compass Chambers intend to summit Ben Nevis in order to raise support for the DEC’s (Disasters Emergency Committee) ongoing relief work on Haiti.
After the recent earthquake struck Haiti, DEC helped to rush in relief teams from around the UK to help the local people cope with the catastrophic aftermath of the quake. Haiti is the poorest country in the Western Hemisphere where 85% of people were already living in poverty before the quake. Given the desperate needs that the Haitians faced on a day to day basis, the earthquake had a destructive and devastating effect on this small island nation.
Given that one of our Q.Cs regularly spends time in this part of the world, Compass members and clerks aim to climb Ben Nevis in May to raise money and support for the Haitian relief effort – but we need your help. If you feel able to help us support the DEC's efforts in Haiti, please click here to be redirected to our fundraising page where you can make an online donation. Any donation will be very warmly and gratefully appreciated.
*Excerpts from a poem reputed to have been written in the visitor’s book of the Ben Nevis Hotel, late 19th Century01/03/2010 - Compass Chambers Annual Aberdeen Conference 2010
COMPASS CHAMBERS is delighted to invite you to our Annual Aberdeen Conference
The Conference will take place on Thursday 6th May 2010 at The Marcliffe at Pitfodels Hotel, Aberdeen, from 1pm until 5pm. Under the Law Society of Scotland's Guidelines, delegates may claim 3 hours of CPD time and the conference is FREE to attend.
The programme provides a review of recent case law and looks at some of the latest procedural and policy developments in Compass Chambers' core areas of Reparation and Regulatory Crime. The law affecting both of these areas is changing at pace and the Aberdeen Conference aims to provide an exciting opportunity for practitioners to identify and discuss some of the most significant and current developments. Members of Compass Chambers who specialise in these areas will lead the seminars.
The Programme (please click below link to download) will commence at 1:00pm with registration and run through until 5:00pm. A drinks reception and buffet will follow to which all conference attendees are invited.
For more information or to reserve a spot at this Conference, please email grace.moran@compasschambers.com or call 0131 260 5661.
22/02/2010 - Compass Chambers Reparation Bulletin: February edition
Welcome to the third edition of the Compass Chambers Reparation Bulletin. The Bulletin, published bi-monthly, will keep you up to date with all developments relating to reparation, including recent cases, legislative changes, including details of proposed Bills, and any policy updates in what is a fast changing legal landscape. In this edition the focus is on recent case law. For further details about the Compass Reparation Team, please visit http://www.compasschambers.com/reparation.asp
If you wish to receive this and other future bulletins please contact Grace Moran on grace.moran@compasschambers.com
19/02/2010 - Personal Injuries Action: Brookes v First Aberdeen Limited [2010] CSOH 16
The case concerned a bus driver in Aberdeen overtaking a line of parked cars. The pursuer was driving his scooter in the opposite direction. At some stage he lost control of his scooter and fell off. He raised his action on the basis that it was the bus driver’s driving which had caused him to lose control of the scooter. Lord Uist rejected that argument and held that the bus driver was carrying out a perfectly acceptable overtaking manoeuvre. He held that the bus driver was not in any way negligent.
The case is also interesting for the discussion on quantum and causation. The pursuer fell and suffered a cruciate ligament injury to his left knee. He needed to undergo surgery on the left knee around 9 months after the accident. However, he claimed that when he awoke from the surgery he had developed Complex Regional Pain Disorder in his foot. Lord Uist accepted the defenders’ submission that it had not been proved that anterior cruciate ligament surgery could cause pain in the foot and that, even if it could do so, it had not been proved that it did so in this case.
David McNaughtan of Compass Chambers appeared as junior counsel for the defenders.19/02/2010 - Seminar - "Acting for Doctors and Dentists"
Malcolm McGregor of Compass Chambers is giving a seminar for Central Law Training in relation to medical negligence and professional disciplinary proceedings entitled “Acting for Doctors and Dentists” on Monday, 22nd Feb at 2pm at Barcelo Carlton Hotel, Edinburgh.
To book a place, please follow the link http://www.clt-scotland.co.uk/coursedisplay/3031361
Malcolm McGregor of Compass is regularly instructed by medical defence unions to act on behalf of clinicians who have been sued for alleged acts of negligence. In addition, he has appeared in one of the first appeals of a decision of the General Medical Council to the Court of Session (Mallon v GMC) and most recently appeared in behalf of the Royal College of Surgeons of Edinburgh defending a claim for damages by a former oncologist breast surgeon, Robert Phipps.
16/02/2010 - HMA v E Nicholson & Sons (Metals) Limited: Demolition company fined over fatal accident
At Glasgow Sheriff Court on 16 February 2010, E. Nicholson & Sons (Metals) Limited pled guilty to a breach of section 3(1) of the Health & Safety at Work etc Act 1974. The company had been contracted to demolish public house premises in Glasgow. It had been agreed that the premises would be demolished by hand down to first floor level and, thereafter, by mechanical means. At the conclusion of the hand demolition phase, a scaffolding sub-contractor was engaged to remove scaffolding from the front elevation of the premises. In the course of removal of the scaffolding, a 13.5 metre section of sign weighing 650kg fell from the building onto three scaffolders. One scaffolder sustained injuries from which he died, another was severely injured to his permanent impairment and the third was injured. The company accepted that it had failed throughout the course of the planning and execution of the works to carry out and review a suitable and sufficient assessment of the risks posed by removal of brickwork around the substantial sign fixed to the front elevation of the premises. The demolition works had compromised the attachment of the sign to the premises. Following submissions, the Sheriff imposed a fine of £60,000 (discounted to £45,000) on the company. Steve Love of Compass Chambers represented the Company.
16/02/2010 - MacKinnon v The Chief Constable of Strathclyde:
In this case the Chief Constable revoked the firearms licence of Mr MacKinnon on various grounds, the cumulative effect of which were said to be that Mr MacKinnon was unfitted to hold a firearms licence (this being the test under the Firearms Act 1968). Mr MacKinnon appealed against the decision to the Sheriff at Campbeltown. Following proof the Chief Constable’s decision to revoke the licences was overturned. The Chief Constable then appealed to the Sheriff Principal. Refusing the Chief Constable’s appeal, Sheriff Principal Kerr QC, held that the Sheriff had applied the correct test; that the assessment of witnesses was a task for her to undertake; and that the inferences she had drawn from the witnesses were matters for her judgement.
Richard Pugh, of Compass Chambers, appeared for Mr MacKinnon in the appeal before the Sheriff Principal.
15/01/2010 - Civil Jury Trial - Reid v Ogilvie & Forrest
Civil jury trial – in a recent, rare civil jury trial, the jury were asked to decide who, if anyone, was responsible for a road traffic accident in which an innocent passenger (and her unborn child) were injured. The defender had brought his car to a sudden stop, causing the third party’s HGV to collide with him. The car then sped up a slipway, while the defender was allegedly unconscious, eventually colliding with the pursuer’s car. The jury found both the defender and the third party to blame, split 40:60. Damages had been agreed in advance at a sum well in excess of the figure which would have been awarded by a judge. Compass chambers members, Ian Mackay QC and Kay Springham were involved, as counsel for the third party and as junior counsel for the pursuer respectively.
17/12/2009 - Compass Chambers welcomes two new Members
Compass Chambers is delighted to welcome two new members; Steve Laing, Advocate and Derek Reekie, Advocate.
Steve, who was called to the Bar in 2002, has extensive experience in a wide range of civil litigation. His principal fields of practice include Reparation (particularly Personal Injury actions), and Professional and Medical Negligence. He acts on behalf of both Pursuers and Defenders, appearing in the Court of Session (Inner House appeals and Outer House cases) and the Sheriff Court. Within his Personal Injury practice, Steve is instructed in a broad range of cases, including employers’ liability, occupiers’ liability, road traffic accidents, occupational stress, industrial diseases and fatal accident cases. He is experienced in the quantification and settlement of catastrophic claims. For more information on Steve Laing, please follow this link.
Derek, who was called to the Bar in 2005, also has extensive experience in civil litigation and has a busy practice acting for both pursuers and defenders in the Court of Session and Sheriff Courts. He has experience of handling high value claims both on his own and as a Junior to Senior Counsel. Derek has also been instructed in a range of other areas including property disputes, professional and medical negligence, Employment and Employment Appeal Tribunals, and for an individual accused in a Health and Safety prosecution. Derek came to the Bar with over 20 years experience as a solicitor in private practice . As a solicitor he gained extensive experience in a wide range of areas of civil litigation including personal injury, professional and medical negligence, commercial, matrimonial, insolvency, judicial review and all aspects of appeal work. For more information on Derek's profile, please follow this link.Compass is looking forward to working with our two new arrivals and would like to extend a warm welcome to them both.
07/12/2009 - Compass Chambers Reparation Bulletin: December edition
Welcome to the second edition of the Compass Chambers Reparation Bulletin. The Bulletin, published bi-monthly, will keep you up to date with all developments relating to reparation, including recent cases, legislative changes, including details of proposed Bills, and any policy updates in what is a fast changing legal landscape. In this edition the focus is on recent case law on causation in mesothelioma cases; a summary of the new personal injury rules in the Sheriff Courts; an important recent Outer House decision on slipping and tripping hazards under the Workplace Regulations 1992; and a summary of the recently published Civil Justice Review.
If you wish to receive this and other future bulletins please contact Grace Moran on grace.moran@compasschambers.com
30/11/2009 - Compass Chambers Regulatory Defence Bulletin: November edition
Welcome to the November edition of the Compass Chambers Regulatory Defence Bulletin. The Bulletin, published bi-monthly, will keep you up to date with all developments relating to regulatory crime, in particular health and safety, environmental and corporate financial issues. In this edition the focus is on the latest developments in the law relating to the duties under the HSWA.
If you wish to sign up for this and any future Regulatory e-bulletins, please email grace.moran@compasschambers.com
13/11/2009 - Compass Conference Almost Full!
Following an exceptional show of support for the annual Compass Chambers Conference 2009, we find ourselves offering the last remaining spaces for this event to be held Friday 27th November at The Balmoral Hotel in Edinburgh.
The conference is FREE to attend and delegates may claim 3 hours CPD time.
A review of legislative and policy developments by Compass experts in the fields of reparation and regulatory prosecutions will be covered and a drinks reception will follow. For more information or to book your spot at the Conference please email irene.mackenzie@compasschambers.com
11/11/2009 - Compass Chambers Professional Disciplinary Proceedings Bulletin
Welcome to the 1st edition of the Compass Chambers Professional Disciplinary Proceedings Bulletin. This Bulletin will be published bi-monthly and will keep you informed of developments relating to this diverse sector of law. If you wish to receive this and any future bulletins then please do not hesitate to contact our senior clerk Irene Mackenzie on the following email address; irene.mackenzie@compasschambers.com
For further details about the Compass Chambers Professional and Disciplinary Team, please visit our website at: www.compasschambers.com
10/11/2009 - Sentencing Guidelines Council (SGC) Publishes Draft Guidelines for Sentencing in Fatal Cases
On 27 October 2009, the SGC published its long-awaited response to the Sentencing Advisory Panel paper on sentences in cases under the Corporate Manslaughter and Corporate Homicide Act 2008, and for fatal cases under the Health and Safety at Work etc Act 1974.
Although not binding, the Guidelines, when they become definitive and binding on English Courts in due course, are likely to be persuasive in Scottish Courts. Of greatest note is the SGC’s departure from the Sentencing Advisory Panel recommendation that fines be measured as a percentage of turnover. Rejecting this approach, the SGC say: “A fixed correlation between the fine and either turnover or profit is not appropriate.”
The SGC Guidelines and their likely effect in Scotland will be discussed in more detail in the seminar “Health & Safety Sentences: On the Up?” being delivered by Jamie Gilchrist QC and Gary Allan QC at the forthcoming Compass Chambers Annual Conference.
06/11/2009 - HMA v Underdown: Acquittal in first trial for causing death by careless driving
At Kilmarnock Sheriff Court on 5th November 2009, the first person in Scotland to face trial for causing death by careless driving was acquitted by the jury. Isle of Arran journalist Nicholas Underdown was driving on the main Brodick to Corrie road on the island in August 2008 when he lost control of his van, as a result of which it crossed onto the opposing carriageway & collided with two cyclists, killing one and seriously injuring the other. The defence argued that unexpected road conditions caused the accident.
During the trial, the presiding Sheriff upheld a defence submission that the conclusions of a report prepared by Strathclyde Police crash investigation officers usurped the function of the jury and were accordingly inadmissable as evidence.Nicholas Underdown was represented by Jamie Gilchrist QC of Compass Chambers.
20/10/2009 - Compass Chambers Annual Conference 2009
Following on from the success of last year's event, Compass Chambers would like to invite you to attend its Annual Conference for 2009.
The conference will take place on Friday 27th November at The Balmoral Hotel, Edinburgh, from 1pm until 5.30pm and is free to atttend. Under the Law Society of Scotland's Guidelines, delegates may claim 3 hours of CPD time.
This year, our programme will include a review of legislative and policy developments in the fields of reparation and regulatory prosecutions. The law affecting both of these Compass Chambers' core areas is changing at pace and the Conference will present an exciting opportunity for practitioners to identify and discuss the most important recent developments. A range of seminars will be led by Compass Chambers' experts in each field.
The programme (please see attached file, below) will start at 1.30pm with a keynote address by Lord Rodger of Earlsferry, followed by a number of elective breakout sessions offering delegates the opportunity to select up to 3 seminar topics most relevant to them.
Finally, we are delighted to announce that a number of our colleagues from Crown Office Chambers, London, will also be attending the event. We will be hosting a drinks reception from 5.30pm to mark our ongoing affiliation, to which all attendees of the Conference are invited.
For more information on this event, please email irene.mackenzie@compasschambers.com
Please click on below link for further programme information.
12/10/2009 - Operators of Loudon Castle Theme Park acquitted in Health and Safety Prosecution
On 10 October 2009 after a 10 day Sheriff and Jury trial at Kilmarnock Sheriff Court, Parkware Limited, operators of Loudoun Castle Theme park were found not guilty of a contravention of section 2 of the Health and Safety at Work Act 1974. The prosecution followed the death in July 2007 of an employee of the company who had tried to activate a rollercoaster car by pushing it when it stalled at the start of the ride. When the ride commenced he failed to let go of the back of the car and was eventually thrown off sustaining fatal injuries.The case provided a classic example of the reverse burden of proof in such prosecutions as highlighted in the House of Lords case R v Chargot resulting in the company requiring to establish on a balance of probabilities that it had taken sufficient steps to ensure the health safety and welfare of its employees.The other notable feature of the case was that at the end of the trial and in the presence of the jury, the HSE Inspector who was in charge of the case was found guilty of contempt of court as a result of her behaviour in court and her behaviour towards a defence witness.Parkware Limited was represented by Susan Duff of Compass Chambers.
07/10/2009 - Preliminary Response to Scottish Civil Courts Review
The Civil Justice Review is a large and detailed document containing radical changes to the Scottish Legal System. As practitioners in Scotland’s Courts we wish to engage constructively in the process of change. There are two issues at the outset where we take a different view from the authors of the review. The first is that we believe that the proposals will involve a significant cost burden. The second is that many of the changes will require legislation both in the Scottish and the UK parliaments. Thereafter we believe that there are some details which require closer consideration. The first of these is the size of the privative jurisdiction of the sheriff court, particularly in the context of personal injury claims. Although it is easy to see that the recovery of a debt of £50,000 by one company from another may seem to relatively insignificant to the parties involved, to most individuals £50,000 is a life-changing sum. Given that this is the limit in England (much lower in Ireland and Northern Ireland), it is difficult to see why a higher limit should prevail in Scotland. A privative jurisdiction of £30,000 would remove the vast majority of personal injury cases from the Court of Session whilst still allowing important claims e.g. the death of a non-earning spouse to be heard in the appropriate forum. The second and perhaps most obvious point is that the review only envisages two specialist personal injury sheriffs operating the new court in Edinburgh. We believe this will be insufficient and indeed the idea sits uncomfortably with the justification for moving the work from the Court of Session, namely that it takes up too much judicial time. It compares unfavourably with the two dedicated commercial judges hearing a fraction of the number of cases in the Court of Session. Once allowance is made for the periods during which one of the sheriffs is taking holidays or hearing a proof, this would mean that for most of the time only one sheriff would be overseeing some 2,500 cases a year. This would make the new court an unattractive forum for litigants and would lead to significant delays, which are not a feature of litigation in the current personal injury system.Finally, we are pleased that the review recognises that the success of the present system of personal injury rules is in large part down to those who work within that system. We are concerned therefore that the position of sanction for counsel (and solicitor advocates) in the new Personal Injury Court has not been made clear. The remit of the Review contained the direction to “report within 2 years, making recommendations for changes with a view to improving access to civil justice in Scotland”. Meaningful access to civil justice must include an ability to secure high quality legal representation such as is offered by an independent referral bar. Under the present system people with personal injury claims worth more than £5,000 can choose to litigate in the Court of Session. This carries with it an automatic entitlement to utilise the services of counsel. Unless such entitlement exists in the proposed personal injury court, access to civil justice will be reduced rather than improved. Accordingly automatic sanction for counsel should be an integral feature of the personal injury court. This would preserve the important right of access to an independent referral bar that litigants have always had in such cases. Furthermore, it would help maintain the body of specialist counsel in the area of personal injury (and Compass Chambers clearly has an interest as the market leader here) that the Review accepts as being a valuable resource to potential litigants. It is thus essential that there is automatic sanction for counsel in the new court, particularly where the level of recoverable fees is to be fixed. This measure would have a negligible effect on Legal Aid resources since most personal injury litigation is funded by insurance companies. Members of Compass Chambers offer to give freely of their time in order to assist MSPs and the Scottish Government in bringing forward this programme of change. For more information please contact Miss Irene MacKenzie, Head Clerk at irene.mackenzie@compasschambers.com.
01/10/2009 - Compass Chambers Reparation Bulletin: October edition
Welcome to the first edition of the Compass Chambers Reparation Bulletin. The Bulletin, published bi-monthly, will keep you up to date with all developments relating to reparation, including recent cases, legislative changes, including details of proposed Bills, and any policy updates in what is a fast changing legal landscape. In this edition the focus is on recent developments in the law of causation in the context of criminal acts; the proposed legislative changes to fatal claims under the Damages (Scotland) Act 1976; whether pre-litigation admissions of liability can be binding; the extent to which owners of animals are liable for their actions; and an important very recent Outer House decision on the Workplace Regulations 1992.
If you wish to receive this and other future bulletins please contact our Senior Clerk, Irene Mackenzie, on the following email address; irene.mackenzie@compasschambers.com.
29/09/2009 - Compass Chambers Regulatory Defence Bulletin: September edition
Welcome to the September edition of the Compass Chambers Regulatory Defence Bulletin. The Bulletin, published bi-monthly, will keep you up to date with all developments relating to regulatory crime, in particular health and safety, environmental and corporate financial issues. In this edition the focus is on Proceeds of Crime and in particular, the new procedural rules for confiscation proceedings in the High Court of Justiciary introduced in August.
If you wish to receive this and other future bulletins please contact our Senior Clerk, Irene Mackenzie, on the following email address; irene.mackenzie@compasschambers.com
25/09/2009 - Maggie Scott QC joins Compass Chambers
Compass Chambers is delighted to welcome Maggie Scott QC as a member of chambers. Maggie is recognised as a leading expert on criminal law and European human rights law, and was most recently lead counsel in the Lockerbie appeal. She has handled many other landmark, complex and high profile appeal cases. Maggie significantly contributed to the Coulsfield review of disclosure in Scotland, and in the course of the Lockerbie appeal argued against the first public interest immunity claim in Scottish criminal proceedings. Maggie sits as a part-time Sheriff, and is frequently called upon to write, lecture and consult on criminal law issues and law reform.
At this stage of her career, Maggie intends to broaden her practice into the fields of regulatory crime, professional disciplinary proceedings, judicial review, challenges to Scottish legislation and executive action, and disclosure and access to information (including public interest immunity claims)21/09/2009 - Electronic Diaries
Starting the new court term afresh, Compass Chambers has today disposed of all paper diaries in favour of the more efficient electronic diary system. This system will prove beneficial to members and to agents alike and it will ensure that clerks can give an accurate, on the spot response to any queries regarding availability. Diaries can be relied upon as being up to date and limited remote access can be gained by firms to check availability. A number of firms are already taking advantage of our online diary system; please email info@compasschambers.com for further information on how to register.
15/09/2009 - HMA v Malcolm Bell: death by careless driving case sentenced
At Dumfries Sheriff Court on 15 September 2009, Malcolm Bell was sentenced for a breach of section 2B of the Road Traffic Act 1988, in one of the first cases of causing death by careless driving to come before the Scottish courts for sentence.
The accident, which occurred on the A75 in September 2008, resulted in the death of the two occupants of an on-coming car. Mindful of the maximum penalty of five years’ imprisonment set by Parliament, the sheriff considered a custodial sentence to be appropriate but following submissions, imposed a 200 hour Community Service Order and disqualified the accused from driving for a period of four years.
Barry Smith of Compass Chambers represented Mr Bell.
04/09/2009 - Robert Milligan appointed Queen's Counsel
Compass Chambers is delighted to congratulate Robert Milligan on his appointment as Queen’s Counsel.
Robert, who is frequently instructed by most leading firms in Scotland, acts for both pursuers and defenders equally and appears regularly in the Sheriff Courts and the Court of Session. His specialist areas of practice include reparation (particularly personal injuries), professional & medical negligence, Fatal Accident Inquiries and Criminal Injuries Compensation claims.
Compass Chambers offers expertise across a broad spectrum of litigation, with core strengths in reparation, regulatory crime and professional disciplinary proceedings.
Robert’s appointment to Queens Counsel boosts the Compass ranks to ten Q.C’s and twenty Junior Counsel.
25/08/2009 - "Criminal Health & Safety Law: Playing by the New Rules"
Compass Chambers, in conjunction with Crown Office Chambers, is pleased to announce the forthcoming Health & Safety seminar which will take place in Newcastle on Thursday 24th September 2009. “Criminal Health & Safety Law: Playing by the New Rules” will commence at 2.30pm at St James Park with registration, followed by an introduction by Sir Robert Nelson. Five different aspects of Health and Safety Law will be covered – including “Corporate & Directors’ Criminal Liability: The New Landscape” presented by Peter Gray, QC and Barry Smith, both from Compass Chambers. The seminar is accredited for 3 hours CPD. For further information, please email Michelle Williamson or to book please click here.
19/08/2009 - FAI - Debenhams, Glasgow
Between 6-8 July 2009, a Fatal Accident Inquiry was held into the death at work at Debenhams, Glasgow of one if its former employees, a Marie O’Neill. In his written judgement, Sheriff Craig Scott criticised the system of lighting which the employers had in place when the deceased died, as a result of falling down an internal flight of steps. The case received widespread press coverage. Robin Cleland of Compass Chambers acted for one of the family members of the deceased in the FAI.
10/07/2009 - Compass Welcomes Richard Henderson
Compass Chambers is delighted to welcome newest member Richard Henderson on board – our second new call in as many months. Richard – who devilled to Compass member, Robert Milligan - called to the bar this afternoon and comes to Compass with three years exposure to Advocacy as a Solicitor Advocate. Prior to this, Richard gained experience through eleven years spent at Harper Macleod – seven of these as a Partner.
Richard’s main fields of interest include reparation, health and safety and, in particular, occupational disease litigation.
09/07/2009 - Compass Chambers Regulatory Defence Bulletin: June edition
Welcome to the June edition of the Compass Chambers Regulatory Defence Bulletin. The Bulletin, published bi-monthly, will keep you up to date with all developments relating to regulatory crime, in particular health and safety, environmental and corporate financial issues. In this edition the focus is on proposed reforms to the FAI system, following the publication of Lord Cullen’s report on consultation.
If you wish to receive this and other future bulletins please contact our Senior Clerk, Irene Mackenzie, on the following email address; irene.mackenzie@compasschambers.com
15/06/2009 - Compass to Sponsor Scottish Legal News
Compass Chambers help Scottish Legal News to celebrate its first anniversary by becoming sponsors of the fast-growing daily news service. The online newsletter has already attracted nearly 3,800 subscribers from right across the legal spectrum in Scotland.
Peter Gray QC, director of Compass Chambers, said: "We are pleased to support Scottish Legal News which is providing a valued service to Scotland's lawyers. We hope that our sponsorship and support will assist its continued development and growth."
For the latest edition of Scottish Legal News please click here.
12/06/2009 - Leonard Allison v Henry Robb Ltd and others
Lord Hodge sisted 6 cases in which damages are claimed for pleural plaques. In a written opinion, Lord Hodge arguably indicated that all such cases (it is thought that there may be up to 600 such claims in the pipeline) should be put on hold pending the outcome of the current judicial review of the Damages (Asbestos related Conditions) (Scotland) Act 2009. Malcolm McGregor moved the motion to sist on behalf of the defenders.
11/06/2009 - New Director of Chambers
Peter Gray QC has taken over as the new director of Compass Chambers. He replaces Andrew Smith QC, who has decided to step down after more than 2 years in the role.
“The challenge for us all is to ensure that, as members of Compass, we are in a position to offer our clients the best and most efficient service possible,” said Peter. “To that end, I am already working with our management committee to review and, where necessary, improve the ways in which both counsel and clerks work. I would be delighted to receive any feedback from instructing solicitors as to how we could better serve the needs of those instructing us.”
09/06/2009 - HMA v Discovery Homes (Scotland) Ltd & Richard Pratt: Construction company and director fined over fatal accident
At Dundee Sheriff Court on 8 June 2009, Richard Pratt, a Director of Discovery Homes (Scotland) Ltd, pled guilty to a breach of sections 2(1) & 37 the Health & Safety at Work etc Act 1974. The conviction is only the second successful prosecution of a company Director in Scotland.
Mr Pratt accepted that the company’s failure to ensure adequate guarding of a smoke extraction shaft was attributable to his neglect and constituted a breach of the company’s duty to ensure the health, safety & welfare of its employees, including the deceased. Following submissions, the Sheriff accepted the accused’s means were limited and imposed discounted fines of £5,000 and £4,000 on the company and Director, respectively.
Barry Smith of Compass Chambers represented the Director.
05/06/2009 - New addition to Compass team
Compass Chambers are delighted to announce the arrival of the newest addition to their team; Gavin Thornley called this morning and joins Compass following 16 years experience as a solicitor in Scotland and England.
After training at Thompsons in Manchester, Gavin moved to Russell Jones & Walker before qualifying as a Scottish Solicitor in 2001. On moving to Scotland, Gavin initially worked with Lawford Kidd before working for Bonnar & Co for six years. During this period, Gavin worked with numerous members of Compass including his Devilmaster - Astrid Smart, Robert Milligan, DI Mackay, QC and Geoff Clarke, QC on numerous cases.
Gavin hopes to specialise in personal injury and medical negligence.
03/06/2009 - FAI Review: Interim Report
In February Compass provided a response to Lord Cullen’s wide-ranging review of the FAI system in Scotland. All responses have now been considered, and an interim report has been issued. Compass was the only stable from the Faculty of Advocates to respond to the consultation paper. It is hoped that the final report will be published later this year. The interim report can be found at: http://www.scotland.gov.uk/About/fatal-accident-review/ .
To read the response by Compass, please click here.
03/06/2009 - Health & Safety Prosecution - P.F. (Perth) v Thomas Thomson (Blairgowrie) Limited and Thomas Peter Thomson
At Perth Sheriff Court on 26th May 2009, Thomas Thomson (Blairgowrie) Limited pled guilty to a contravention of s.2 of the Health and Safety at Work Act 1974 and Thomas Peter Thomson, a director of the company, pled guilty, in that capacity, to a contravention of regulation 3 of the Management of Health and Safety at Work Regulations 1999.An inadequate risk assessment resulted in a failure to put in place safe zones under, and on either side of, overhead power lines running across a field in which polytunnels were being erected. An employee involved in the erection of the tunnels was fatally injured when a series of metal poles being carried by him came into contact with the power line.Following submissions, Sheriff Fletcher imposed a discounted fine of £9,000 upon the company and a discounted fine of £1800 upon the director. Craig Thomson of Compass Chambers appeared on behalf of the director.
21/05/2009 - HMA v S T McDowall: JCB operator fined £3,500 over fatal accident
At Lanark Sheriff Court on 28 April 2009 Shaun McDowall, the self-employed operator of a JCB excavator, pled guilty to a breach of section 3(2) of the Health & Safety at Work etc Act 1974.
A fault in the machine’s hydraulic system resulted in the bucket falling from the arm and striking an architect inspecting the site. Mr MacDowall accepted that his failure to use a safety pin in the hydraulic arm of the JCB constituted a breach of his duty to ensure the health, safety & welfare of those not in his employment, including the deceased. Following submissions, the Sheriff imposed a discounted fine of £3,500.
Barry Smith of Compass Chambers represented the accused.
30/04/2009 - Compass Chambers Regulatory Defence Bulletin: April edition
Welcome to the April edition of the Compass Chambers Regulatory Defence Bulletin. The Bulletin, published bi-monthly, will keep you up to date with all developments relating to regulatory crime, in particular health and safety, environmental and corporate financial issues. In this edition the focus is on Directors’ responsibilities & the potential consequences of failing to meet them.
If you wish to receive this and other future bulletins please contact our Senior Clerk, Irene Mackenzie, on the following email address; irene.mackenzie@compasschambers.com
15/04/2009 - Safety, Health & Environmental Forum (Scotland).
The Safety, Health & Environmental Forum (Scotland) is the oldest Safety Group in Scotland and meets monthly to promote good health and safety across the country. Peter Gray QC from Compass Chambers gave a seminar to the forum on Wednesday 15 April entitled “Health and Safety Enforcement; A Changing Landscape”. This talk discussed the prosecution and sentencing of companies, the increasing use of existing powers to prosecute directors and criminal liability of companies and directors in relation to fatal road traffic and construction accidents. This proved an excellent opportunity for directors and other key management staff to hear about the risk of failing to comply and the consequences in event of conviction.
23/02/2009 - John McEwan v Argyll & Arran Acute Hospitals NHS Trust
Court of Session decision in favour of the pursuer in a case alleging clinical negligence during abdominal surgery. The Court found that a failure properly to confirm the viability of ischaemic tissue during a routine operation led to bacterial translocation causing necrotising fasciitis with near fatal consequences and massive resultant tissue loss.Iain Armstrong QC of Compass Chambers acted for the pursuer.
20/02/2009 - “Lord Cullen Review of FAIs: Compass Chambers Response”
As a large proportion of members of Compass have expertise in appearing in FAIs dealing with issues such as medical negligence, breaches of health and safety in the construction industry, offshore and road accidents and deaths in custody, it was considered important that Compass should provide a response to this wide-ranging Review. To read the Response in full click on link below.
18/02/2009 - Glasgow CIty Council win in House of Lords
Glasgow City Council has won its case in a landmark appeal in the House of Lords following the death of a housing association tenant in 2001.
Andrew Smith QC of Compass Chambers successfully represented the council in their appeal, arguing that the action should be dismissed as there is no claim in law. The case raised important issues regarding the law of negligence involving landlords and in particular Local Authorities.
The appeal was raised by the family of James Dow Mitchell who died following an assault by a neighbour in the Bellahouston area of the city. It was argued by the Mitchell family that the council owed a duty of care to the deceased during a long-running feud with James Drummond. In July 2001, Drummond had been given notice for eviction by the council, returned home angry and launched an assault on Mitchell resulting in injury and death.
Ian Mackay QC of Compass Chambers commented;
“The case is of considerable significance to Local Authorities throughout Scotland. It was decided that there could be no liability by a Local Authority, for the criminal actions of a tenant who killed another tenant, if the alleged basis for that liability was simply that Local Authority were the perpetrators’ landlords.”The case has been commended for raising the importance and role which Scots law plays in shaping UK law relating to negligence. In her judgment released today (Wednesday) Lady Hale remarked;
“This is but the latest in a long line of cases from Scotland which have played such an important part in shaping the law of negligence for the whole of the United Kingdom.”The case follows two previous hearings in the Court of Session. Lord Bracadale dismissed the action in 2005 but the Inner House at the Court of Session overturned the decision which led to the appeal in the House of Lords.
Today’s judgment follows the hearing in December.
11/02/2009 - “Compass Chambers Regulatory Defence Bulletin: February Edition
Welcome to the February edition of the Compass Chambers Regulatory Defence Bulletin. The Bulletin, published monthly, will keep you up to date with all developments relating to regulatory crime, in particular, health and safety, environmental and corporate financial issues.
In this edition the focus is on Health and Safety, and in particular:
the Specialist Health and Safety Division established in January 2009 to oversee the prosecution of all Health and Safety cases in Scotland;
and HMA -v- Munro & Sons Ltd (2009) - a Crown Appeal against sentence from a health and safety prosecution in which the Appeal Court has provided guidance on sentencing factors.
If you wish to receive this and other future bulletins please contact our Senior Clerk, Irene Mackenzie, on the email address below.
irene.mackenzie@compasschambers.com
04/02/2009 - Rush v Rosenguard (Glasgow Sheriff Court 26 January 2009)
04/02/2009 - “Rodney McLellan v Dundee City Council [2009] CSOH 9
Court of Session proof on liability, contributory negligence and causation. The pursuer’s right index finger was partially amputated when he was clearing a blockage in his lawnmower whilst at work with the council. The case was brought against the council on the basis of alleged breaches of the Provision and Use of Work Equipment Regulations 1998. The court considered regulation 4 (suitability of work equipment) under reference to English v North Lanarkshire Council 1999 SCLR 310 and Robb v Salamis (M&I) Limited 2007 SC(HL) 71. David McNaughtan of Compass Chambers appeared on behalf of the pursuer.
See www.scotcourts.gov.uk/opinions/2009CSOH9.html for full report.”
02/02/2009 - New addition to Compass Clerking Team
Compass Chambers is delighted to announce the successful recruitment of an additional Deputy Clerk. Grace MacRae will be joining the team on Monday 16th Feb. Grace joins Compass from Condies in Perth where she is currently responsible for the residential leasing department. She also previously worked as a Paralegal for Paull & Williamsons in Aberdeen where she was part of the corporate department in the oil and gas unit, responsible for negotiating and administering contracts.
07/01/2009 - Craig Moore -v- The Scottish Daily Record and Sunday Mail Limited
In this case the court had to re-consider the First Division’s decision in the case of Billig v The Law Society of Scotland 2008 SC 150. In Billig the First Division suggested they had the power in the exercise of their inherent jurisdiction, to fine the appellant due to the circumstances surrounding the late abandonment of his appeal. In Moore a bench of five judges held that the court cannot competently fine parties for late abandonment; they thus overruled the decision in Billig. Richard Pugh of Compass Chambers appeared with Roddy Dunlop for the Scottish Daily Record.
http://www.scotcourts.gov.uk/opinions/2008CSIH66.html
18/11/2008 - Peter Gray QC announced as Judge for 2009 Legal Awards
We are delighted to announce that Peter Gray QC has been selected to join the judging panel for The 2009 Legal Awards, sponsored by Scott + Co.
The awards programme, operated by KDMedia, is chaired by Margo MacDonald, and aims promote and celebrate Scotland’s most accomplished and aspiring legal professionals.
The programme launches at the Scotsman’s Live Legal Debate next week and culminates in a glittering lunch to take place in Edinburgh in March 2009.
Contenters are invited to join guests at the Scotsman’s Live Legal Debate. The panel of experts includes Ian Smart, Vice President of the Law Society of Scotland, Jane Irvine, Chair of the Scottish Legal Complaints Commission, Martyn Evans, Director of Consumer Focus Scotland (formerly the Scottish Consumer Council) and John Scott, a criminal defence lawyer.Many of the judges and entrants will be at the event which will be held at The Scotsman Building, 108 Holyrood Road, on Monday 24 November 2008 at 6.30pm with a drinks reception. The debate starts at 7pm and concludes by 8:30pm.
For more information visit www.thelegalawards.com
To sign up for the launch debate, please email info@thelegalawards.com
17/11/2008 - ICL Public Inquiry into Stockline Explosion
The Public Inquiry conducted under the Inquiries Act 2005 in relation to the Stockline Plastics Factory tragedy of 2004 in which nine people died, was concluded before the Right Honourable Lord Gill on 13 November 2008. Of the four Core Participants in the Inquiry, two were represented by members of Compass Chambers. Johnston Oils Ltd were represented by Peter Gray QC and Calor by David Sheldon.
10/11/2008 - PF FORT WILLIAM v NEVIS RANGE DEVELOPMENT CO PLC & KEVIN JOHN BYRNE
At Fort William Sheriff Court yesterday, Nevis Range Development Co Plc and an employee, Kevin Byrne, pled guilty to breaches of sections 3 and 7 of the Health & Safety at Work etc Act 1974. The prosecution resulted from the derailment of one of the Nevis Range gondola cable cars in July 2006. The accident prompted a major incident response from the emergency services and a subsequent investigation by the Health & Safety Executive. This prosecution of an employee is one of only a very few to come before the courts under a section which is rarely enforced. Following submissions, the company was fined £2,000 and Mr Byrne £1,000.
Barry Smith of Compass Chambers represented Kevin Byrne.
13/10/2008 - Compass Chambers Annual Reparation Conference 2008
Next month, Compass Chambers is hosting its first annual Reparation Conference, at the Balmoral Hotel on Thursday 13th November.
The key note speaker has just been confirmed as Christopher Purchas QC of Crown Office Chambers who will speak on Clinical Negligence. A number of Compass members will also lead workshop sessions on topics including; third party crime (Mitchell v Glasgow City Council), health and safety at work (Spencer Franks) and the costs of care in Scotland related to Sowden and Crofton cases.
A second plenary session on the use of 3D modelling in court, given by Peter Milligan will close the conference.
Guests are invited to stay and enjoy an informal drinks reception which will provide good opportunity to network with some of the leading experts in reparation litigation, a specialist area for Compass.
To book your place at The Compass Chambers Reparation Conference please complete and return the booking form as soon as possible to KDMedia by fax 0131 337 3232 or email kate@kdmedia.co.uk Click here to access the booking form.
We look forward to welcoming you to the inaugural Compass Chambers Reparation Conference.
07/10/2008 - Compass Chambers announce strategic link with London chambers
Compass Chambers, are delighted to announce a reciprocal partnership with Crown Office Chambers in London. The new partnership was celebrated last week at a reception at One Aldwych and guests included members of both Chambers and Lord Rodger of Earlsferry who attended a special guest.
This move is the first time that a Scottish stable has formed a partnership with a set of London barristers and it is believed that the link will improve services to clients and open up a number of business development opportunities in Scotland.
Andrew Smith QC, senior counsel at Compass Chambers has spearheaded the move following his training at the English bar a number of years ago. “This relationship is about improving our services to clients in cases which need expertise on either or both sides of the border. We will be able to offer our clients an unparalleled range of expertise and of course have the facilities of a London office when we need it.”
The two chambers enjoy a similar profile in expertise. Compass members are recruited for their skills in the four core areas of personal injury, professional negligence, regulatory prosecutions and professional disciplinary proceedings. For more information on Compass Chambers or Crown Office Chambers, please contact Irene Mackenzie on 0131 260 5648.
22/07/2008 - COMPASS CHAMBERS WELCOME NEW ADVOCATES
Compass Chambers is pleased to announce that two new members of the Faculty of Advocates have been successful in their applications to join the Chambers. Richard Pugh joins from private practice where he specialised in cases relating to medical and professional negligence, and personal injury litigation.
Prior to coming to the Bar, Craig Murray spent five years in private practice covering a wide range of litigation. In the longer term, Craig intends to specialise in regulatory prosecutions. Compass offers expertise and experience across a broad spectrum of litigation, with core strengths in personal injury, professional negligence, regulatory prosecutions and professional disciplinary proceedings.
Both Richard and Craig are seen as being valuable additions to Compass and will further enhance its reputation as leaders in the provision of specialist advice and advocacy.
15/07/2008 - Prosecution of Ondeo Industrial Solutions UK Limited
Yvonne Waugh represented Ondeo Industrial Solutions UK Limited in a prosecution brought under environmental legislation following oil slicks in the Firth of Forth in July 2007. Ondeo manage the effluent treatment plant for wastewater from the Grangemouth Oil Refinery. They faced a fine of up to £50,000 following large oil slicks on the Forth identified as having been released from the Treatment plant. Having heard submissions the court imposed a fine of £3,000.
http://news.bbc.co.uk/1/hi/scotland/tayside_and_central/7507680.stm
http://news.scotsman.com/latestnews/3000-fine-for-9mile-oil.4291285.jp
08/07/2008 - Maureen Flood v University of Glasgow (Lord Woolman). Procedure Roll
In this occupational stress case, the pursuer claimed damages from her former employers, the University of Glasgow, for psychiatric harm which she contended resulted from overwork. It was argued on behalf of the defenders that the action was irrelevant, in that the pursuer had failed to make sufficient averments to establish the nature of any breach of duty on the part of the defenders and how that duty ought to have been fulfilled. The pursuer's action was dismissed.
Astrid Smart of Compass Chambers appeared for the defenders.
14/06/2008 - Compass Chambers take on the Caledonian Challenge 2008
Congratulations to Calum Wilson, Steve Love, Yvonne Waugh & Amber Galbraith took part in this year's Caledonian Challenge and raised over £2500. The team who were supported by Robert Milligan and Malcolm McGregor took part in the 54 mile trek from Fort William to Loch Lomond, with only brief rest and refuelling stops. The Caledonian Challenge has established itself as Scotland’s foremost endurance fund-raising event since it was founded 10 years ago.
29/05/2008 - Foodie Heaven
Last month Compass Chambers and guests enjoyed a fantastic evening at Edinburgh’s world famous Tower Restaurant to celebrate Compass Chambers’ first birthday. The sun was shining as guests sipped champagne on the roof top terrace before retreating inside to indulge in a seasonal six course tasting menu with accompanying wines. Charles MacLean , local whisky expert and world renowned whisky writer provided an entertaining whisky tasting to complete the celebrations. Look out for the next Compass Chambers Foodie extravaganza!
28/05/2008 - Harbro Farm Sales Ltd v Allan Elliott and Mrs J Elliott and Massey Bros. (Feeds) Ltd
Sheriff D J Cusine
Aberdeen Sheriff Court
In this product liability proof the Pursuer and Third Party successfully defended a £160,000 counter-claim in respect of allegedly defective game bird feed.
The Defenders, who were rearers of pheasants and other game birds, refused to pay the Pursuer’s invoices for pheasant feed supplied in the 2001 season. The Pursuer sued for payment and the Defenders counterclaimed. The Third Party, as manufacturer of some of the feed, was later brought into the action. Evidence, including that of three animal nutrition experts and a veterinary surgeon was led over thirteen days at Aberdeen Sheriff Court throughout 2007. The Sheriff held that the Defenders had “failed to establish that the feed supplied to them by the Pursuers was not of satisfactory quality, or deficient in any way,” preferring the explanation of the experts for the Pursuer and Third Party that the Defenders losses in 2001 were more likely to have been caused by disease.
Barry T Smith, Advocate, of Compass Chambers represented the Pursuer and Third Party (Agents McClure Naismith and Simpson & Marwick (Aberdeen))
13/05/2008 - Samantha Baird v Graham Cowie
This was a Jury Trial involving the traumatic above-knee amputation of a young woman. Damages were valued in excess of £1,000,000. The case settled on the morning of the Trial. D.I. MacKay QC and Robert Milligan of Compass Chambers acted for the Defender, Astrid Smart of Compass Chambers was Junior Counsel for the Pursuer.
10/03/2008 - Michael Knaup v Guernsey Ship Management Limited & Another
Peterhead Sheriff Court, 3rd March 2008
Defenders successfully sought dismissal of the action on the basis of the pursuer’s failure to progress same. The action concerned an accident onboard a vessel that occurred on 12th January 1999. The accident was allegedly caused by the state of the vessel. The action was raised on 4th April 2002 (in accordance with an agreed extended triennium). Thereafter the action was sisted and remained so until the defenders enrolled a motion seeking to recall the sist and to dismiss the action. Applying the guidance provided by the Inner House in Tonner v Reiach & Hall 2007 SLT 1183, the Sheriff (Gardner) concluded that there had been inordinate and inexcusable delay. At the motion for dismissal, the court also heard a simultaneous motion on behalf of the pursuer seeking to amend the pleadings to include inter alia a new case of fault against the captain of the vessel. It was submitted on behalf of the defenders and accepted by the Sheriff that a number of witnesses were either untraceable or deceased. The captain of the vessel was traced to Germany but could not recall events due to the passage of time. The vessel itself was in Brazil. The pursuer had spent a significant period of time since the accident in his native Germany. The Sheriff held that the particular facts and circumstances of the case demonstrated clear prejudice to the defenders in the event that the action was allowed to proceed. Malcolm McGregor of Compass Chambers represented the defenders.
30/01/2008 - McGibbon v McAllister [2008] CSOH 4
http://www.scotcourts.gov.uk/opinions/2008CSOH04.htmlLord Brodie held that the definition of “parent” in the Damages (Scotland) Act 1976 (as amended) had to be read in the light of the Human Rights Act. Accordingly, the “de facto stepfather” of the deceased was held to be a “parent” in terms of paragraph (b) of Schedule 1 to the 1976 Act 1976, notwithstanding that he was not the natural father of the deceased and so did not fall within the normal definition of a parent. To hold otherwise would be inconsistent with Articles 8 and 14 of the ECHR when read together as it would discriminate against the pursuer on the basis purely of his marital status. Although the specific significance of this case is limited, because the Damages (Scotland) Act has now been amended to include those in the position of Mr. McGibbon, the wider significance of this case is that it is authority for the proposition that conferring title to sue may be fall within the state’s obligations under Article 8. The pursuer was represented by Robert Milligan of Compass Chambers. The defender was represented by a solicitor advocate.
29/01/2008 - Utilities not liable for Street trips; Foster v Dundee City Council
Foster v Dundee City Council, Sheriff McCulloch, 22 January 2008.
In this case, the Council was sued for damages after the pursuer was injured when he tripped on a missing toby cover. The Council convened Scottish Water, the owner of the toby cover, as a Third Party. Such actions usually settle on a 50:50 basis, and indeed Scottish Water tendered 50:50 liability. However, the Council rejected the tender, indicating that they took the view that Scottish Water should be entirely responsible. Accordingly, despite the fact that damages were agreed at the low level of £2,500, the case went to proof as a test case. The Sheriff disagreed with the Council’s argument, and rather took the view that there was no liability at all on Scottish Water, who were assoilzied. It remains to be seen whether this will result in the practice which has been widespread thus far, of Utilities and Councils agreeing to share liability in such cases on a 50:50 basis, being reviewed by the many utility companies with ironwork in the streets around Scotland.Roddy Dunlop of Compass Chambers was counsel for Scottish Water. The decision can be viewed by clicking on the box below.
23/10/2007 - Pleural plaques not actionable in Scotland
Lord Uist has followed the seminal decision of the House of Lords in the English case of Rothwell (see below: “Pleural Plaques do not sound in damages”), holding that the same result should follow in Scotland. Roddy Dunlop of Compass Chambers was one of the junior counsel for the defenders.
19/10/2007 - HMA v Colin Kane, High Court, Glasgow : Causing death by dangerous driving: undiagnosed obstructive sleep apnoea.
The accused, a commercial lorry driver, was charged with causing death by dangerous driving, having collided with a stationary queue of traffic, resulting in the death of three people. It was agreed that the most likely immediate cause of the accident was that Mr Kane had fallen asleep at the wheel. Investigation established that, at the time of the accident, Mr Kane was suffering from chronic obstructive sleep apnoea. The condition was undiagnosed at the time of the accident. The principal issue at trial, in respect of which considerable expert evidence was led, was whether Mr Kane was aware, or ought to have been aware that he was suffering from excessive daytime sleepiness at the time of the accident. At the conclusion of the trial, the jury found the case not proven.
Mr Kane was represented by Peter Gray QC of Compass Chambers (instructed by HBM Sayers).
17/10/2007 - Pleural Plaques do not sound in damages
The House of Lords has issued its decision in the long awaited case of Rothwell and others v. Chemical and Insulating Company Limited: http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071017/sshd.pdf. The House has ruled that asymptomatic pleural plaques do not sound in damages, at least when the basis of the claim is negligence or breach of statutory duty. The same applies even if the diagnosis of pleural plaques is accompanied by psychiatric injury. Intriguingly, however, Lords Hope, Scott and Mance raised a query as to whether damages might be recoverable if a pursuer were to sue in contract rather than in negligence; and Lords Hope and Mance suggested that the earlier decision of the House in Page v Smith might be open to reconsideration. Accordingly, the decision in Rothwell may well be productive of further litigation.
Roddy Dunlop of Compass Chambers was Scottish consultant for the defendants in the proceedings before the House of Lords
15/10/2007 - Appointment of Compass Chambers QC to Crown Office
Compass Chambers are very pleased to announce that Gary Allan QC, one of its regulatory crime and professional discipline team, has accepted the invitation of the Lord Advocate to enter Crown Office as a Senior Advocate Depute. He takes up his appointment on 1 November 2007. Of his appointment, Gary commented “I have admired the work done in Crown Office all my professional life. It has always seemed such a hard and often thankless challenge. Although I have been an ad hoc depute for many years, the new challenge of entering Crown Office as a senior advocate depute at such a time of change, and the possibility of making a real contribution was one I could no longer resist. I am looking forward to working with very able people in all areas of Crown Office work, but I am particularly pleased that there will be an opportunity there for me to pursue my continuing special interest in health and safety and environmental law prosecutions, as well as other regulatory matters”. Whilst during his period in Crown Office Gary will obviously be unable to undertake criminal defence work, he intends to maintain his professional discipline practice.
15/10/2007 - Nicola Penman or McKinlay v Score (Europe) Ltd, Jury Trial
Lady Clark of Calton, 15 October 2007
The pursuer, a woman aged 27, sustained severe injury when her left hand was trapped in a lathe. She lost her ring and small finger and part of her hand and developed phantom pain and post-traumatic stress disorder. She was unable to return to her previous work but had been able to undertake lighter IT work. She claimed damages for the cost of two cosmetic hand prostheses. The Jury were provided with copies of the relevant actuarial tables (Ogden, 6th edition) to calculate future loss of earnings, in the event that they considered it was appropriate to approach future wage loss on a multiplier/multiplicand basis. This was the first case where a Jury employed the Tables in calculating future wage loss – in this case, the sum of £167,000. Solatium awarded was £100,000 and prosthetic costs £103,000.
DI Mackay QC and Astrid Smart of Compass Chambers represented the pursuer at the Jury Trial.
18/09/2007 - Henderson v Sutherland
(Lord Eassie 18th September 2007) http://www.scotcourts.gov.uk/ opinions/2007CSOH158.html
This was a claim for personal injury following a road accident. The pursuer had been employed as a prison officer, and had been taken hostage some years before. He suffered PTSD as a result, but returned to work. He then had the road accident, but again returned to work.
He subsequently became unable to fulfill his duties and retired from the Prison Service.
The important legal issue raised was that the pursuer had previously claimed damages for the PTSD against the prison service. They argued that the cause of his termination of employment was the accident and not the hostage taking situation. However, the claim was ultimately settled without a proof. Part of the settlement figure was clearly in respect of wage loss for the past and future.
In the case before Lord Eassie, the defender argued that the settlement figure in the previous case should be taken in to account in some way. However, the pursuer successfully argued that the payment in the previous action was legally irrelevant as it amounted to a payment similar to an ex gratia payment, even though in the context of a litigation.
Senior Counsel for the pursuer was Andrew Smith QC of Compass Chambers.
06/09/2007 - Billy McGhie v Diageo PLC
This was an appeal against a decision of the Lord Ordinary, in the exercise of his discretion, to refuse an application to amend and discharge a proof that was imminent. The Inner House was persuaded on appeal that the Lord Ordinary had failed to exercise his discretion properly and allowed the appeal. Reference was made to a number of authorities on the question of amendment, discharge of diets and the exercise of discretion in appeals cases.
http://www.scotcourts.gov.uk/opinions/2007CSIH68.html
Counsel for the Appellant, Andrew Smith QC of Compass Chambers
20/08/2007 - Two New Silks in Compass Chambers
Compass Chambers are delighted that on 20 August 2007 two members of their junior bar were appointed Queen’s Counsel. Jamie Gilchrist QC and Gary Allan QC are both experienced former solicitors and members of Compass Chambers regulatory crime and professional discipline team. Jamie called in 1994 and was an advocate depute from 1999 until 2001. As well as being a hugely experienced court practitioner, his attention to detail, skill and diligence have caused his recruitment to the defence team presently preparing the appeal of the Lockerbie accused referred to the Court by the Scottish Criminal Cases Review Commission. He was appointed a part time sheriff in 2006. Gary called in the same calling group in 1994 and has pursued a successful career at the defence bar where, as well as in general crime, he has in more recent years developed an expertise and special interest in regulatory crime and professional discipline. He has been an advocate depute ad hoc since 2001 and has appeared before the discipline tribunals of a wide range of professional bodies as diverse as farriers and midwives both as prosecutor and defence counsel.
10/07/2007 - Fegan v Highland Council (2007) CSIH 44
In this appeal to the Inner House from a proof in Wick Sheriff Court, the pursuer was represented by Bruce Erroch (and, at the appeal, Alan Dewar QC) and the defenders were represented by Robert Milligan. The pursuer had fallen from a cliff top in Thurso, suffering catastrophic injuries. Although the pursuer could not remember how she had fallen, she had been sitting on a bench a few feet from the top of the cliff shortly before the accident. Her case was that the bench acted as a trap or an allurement to go too close to the unguarded cliff top. The sheriff held that the pursuer had failed to prove how the accident had happened and in any event that there was no duty on an occupier to guard against natural and obvious dangers, such as cliffs. The Inner House refused the appeal, on the basis that the sheriff was entitled to make the findings that he did. Lord Johnston, delivering the opinion of the court, concluded that “The sheriff, who not only heard the evidence but also inspected the locus was entitled, in our view, to conclude that there were no unusual or special dangers at the locus requiring the occupier to take precautions such as the erection of fencing. In many ways the issue for the sheriff was a jury question in respect of which it has to be shown that the trial judge, i.e. the sheriff, plainly misdirected himself or plainly reached a wrong decision on the facts. We find it quite impossible to assert that in this case.”
09/07/2007 - Mary Elizabeth McClelland v Dumfries & Galloway Council
Sheriff Ross
Dumfries Sheriff Court
9th July 2007
This is one of the first cases in Scotland to consider the relationship between a claim for occupational stress and the Protection From Harassment Act 1997. It highlights some important distinctions between the provisions in Scotland and those in England.
The pursuer sought damages at common law and under the 1997 Act for the alleged conduct of one of her fellow employees. The defenders were assoilzied and the sheriff made the following observations in relation to the 1997 Act and the decision of the House of Lords in Majrowski v St. Guy’s and St. Thomas’s NHS Trust [2007] 1 AC 224:
“[44]…The scheme of the 1997 Act differs for Scotland and England. In England harassment is a criminal offence. In Scotland it is not but the legislation (section 8(5)) allows a person to obtain an order to restrain behaviour which amounts to harassment, either in civil proceedings or in criminal proceedings following a conviction of an offence involving harassment…Of course, Scots law has as a tool to deal with such behaviour the flexible and wide ranging offence of breach of the peace. Conduct likely to cause alarm or distress can “sustain criminal liability” in terms of that offence. It is not clear from what Lord Nicholls said [in Majrowski] whether he had in mind by “sustain” the nature of the conduct itself or he proof of that conduct…So in a civil claim brought in terms of section 8(2), it may be best simply to apply the words of section 8(1) but inform any consideration of them with how the courts have approached the issue of causing a person alarm or distress in the context of a charge of breach of the peace”
Although the decision has not been reported, copies of the judgement can be obtained through Compass Chambers from Irene Mackenzie.
The defenders were represented by Robert Milligan of Compass Chambers (instructed by Simpson & Marwick, Edinburgh).
06/07/2007 - The Royal Pharmaceutical Society of Great Britain
THE ROYAL PHARMACEUTICAL SOCIETY OF GREAT BRITAIN STATUTORY COMMITTEE CHAIRMAN: LORD FRASER OF CARMYLLIE QC
RE: SHEILA COVENTRY
http://news.bbc.co.uk/1/hi/scotland/edinburgh_and_east/6768873.stm
Mrs Coventry had been registered with The Royal Pharmaceutical Society for approximately 20 years when she was referred to the Statutory Committee of the RPS to face an Inquiry into the circumstances of her conviction at Edinburgh Sheriff Court in respect of an allegation of assault to injury for which she had been sentenced to 120 hours’ community service in December 2005.It was alleged on behalf of the Society that the circumstances of the offence disclosed behaviour which was likely to have brought the profession into disrepute or undermined the public confidence in the profession to a degree which rendered Mrs Coventry unfit to remain on the Register of Pharmaceutical Chemists.
Following an Inquiry before the Statutory Committee on 21 and 22 May 2007 the Statutory Committee concluded that,
“ We have to determine whether the conviction indicates such reprehensible conduct on the part of a pharmacist that her registration should be removed. In the particular circumstances of Mrs Coventry’s case, we draw back from making that direction for her removal….The public interest is, in our opinion, best served by having high quality pharmacists who are skilled, helpful and courteous to the public. That appears to us to be the more appropriate test of securing public confidence in the profession. Of course, there are convictions of such gravity that no right-thinking member of the community could retain confidence in a profession which turned a blind eye on such criminal misconduct. We have not done that in the past and we shall not do so in the future”.
The Statutory Committee accepted submissions made on behalf of Mrs Coventry that she was an exceptionally able and caring pharmacist, that the offence of which she had been convicted was, on any view, wholly out of character, and that there was no risk of repetition of the conduct which had led to her conviction. In those circumstances, the Statutory Committee restricted the penalty imposed to a reprimand and made no order that Mrs Coventry be removed from the Register.
Mrs Coventry was represented by Peter Gray QC.
02/07/2007 - Provision and Use of Work Equipment Regulations to be considered by the House of Lords
The recent decision of the Inner House on the application of PUWER, Spencer-Franks v Kellogg Brown & Root (see http://www.scotcourts.gov.uk/opinions/2007CSIH23.html) has been appealed by the pursuer to the House of Lords. The Second Division ruled, following the English Court of Appeal’s decision in Hammond v Commissioner of Police for the Metropolis ([2004] ICR 1467, that the PUWER regulations do not apply to an item which is being repaired. Leave to appeal had been refused by both the Court of Appeal and the House of Lords in Hammond but, of course, no leave is required for Mr Spencer-Franks as a Scottish litigant. Accordingly, the scope of PUWER is to be considered by the Lords in due course.
Roddy Dunlop of Compass Chambers is counsel for the defenders and respondents.
02/07/2007 - Professional Discipline: Donald Findlay QC cleared of misconduct.
Donald Findlay QC has been cleared of professional misconduct following a hearing before the Faculty of Advocates Discipline Tribunal, chaired by Lord Coulsfield: see http://thescotsman.scotsman.com/index.cfm?id=1034002007. Findlay was the subject of a complaint by two members of the public following a newspaper report narrating jokes that he had told at a sportsman’s dinner. The Tribunal rejected the complaints, holding that "It is clear that the two particular jokes complained of do not amount to conduct which either did or would reasonably be expected to give rise to offence to a significant proportion of the community."Roddy Dunlop of Compass Chambers was junior counsel to Mr Findlay.
14/06/2007 - McNamara & Frost v Levy & McRae [5th June 2007]
The pursuers raised an action of professional negligence against their former solicitors for a sum just under 5.5 million. The action was originally raised in the sheriff court. Throughout the substantive procedure in that forum, the defenders instructed Senior Counsel to appear. The action was subsequently remitted to the Court of Session. At that time no sanction for the employment of counsel had been granted by the sheriff. The action was eventually dismissed. The defenders enrolled a motion for sanction. The late Lord Dawson deemed this unnecessary and made no order. Accounts were prepared and at taxation, the Auditor of Court refused to allow Senior Counsel's charges in respect of the sheriff court procedure as sanction had not been granted. A note of objection was taken on the basis that the rules of court provide that, on remit, an action which emanated from the sheriff court was to "proceed as if it had been an action in the court initiated by a summons." As such, the action was to be treated as if it had always been in the Court of Session. Accordingly, sanction was unnecessary. Lord MacPhail agreed with this interpretation and approach. In the event that that submission had been rejected, a fresh motion for the sanction for Senior Counsel was made. Lord MacPhail accepted that the exceptional circumstances of the case made such a motion (after taxation) competent. Furthermore, these circumstances would have justified his granting such a motion had it been necessary to do so.
12/06/2007 - Judicial review: No early release for “denier”
David Laidlaw v Parole Board for Scotland
A petition for judicial review was brought by a convicted rapist against the Parole Board for Scotland: see http://www.scotcourts.gov.uk/opinions/2007CSOH98.html . The petitioner had consistently denied his guilt. He was refused early release on Parole, and sought Judicial Review, claiming that the reasons given by the Parole Board were insufficient. He contended that the Parole Board had focused only on his denial of guilt. Lord McEwan disagreed, holding that the Board’s reasons were intelligible and adequate. It was entirely appropriate to take into account the denial of guilt, and that was not the only reason for refusing early release. Having regard to questions of risk and the paramount need to protect the public, the decision of the Board was not amenable to challenge.
Roddy Dunlop of Compass Chambers was junior counsel to the Board.
06/06/2007 - Hughes v Grampian [First Division, 18th May 2007]
This recent Inner House case provides an authoritative decision on two main issues.
The first is upon the interpretation of the Manual Handling Regulations. The court made it clear that in considering what a "load" is, a common sense approach had to be taken to it. The load had to be material to be relevant. An operation is not a "load" under the regulations, simply by the fact that something is moved or transported. This important decision means that claims under the regulations are more difficult for pursuers to succeed in.
The second important point about the case is that it permitted the use of video evidence on appeal, but doubted whether this was a proper way of conducting an appeal against a factual judgment.
It is unclear whether an appeal will be marked to the House of Lords by the pursuer's solicitors.