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Insights from the Bar

26 February 2014

Report from 21st Century Bar Conference 2013

On a crisp Friday in December, the 21st Century Bar Conference 2013 took place at the Faculty of Advocates' MacKenzie Building in Edinburgh. This joint event between the Faculty of Advocates and ILG, described by then Vice Dean of the Faculty (now Dean), James Wolffe QC, as a "fruitful collaboration", was in its 13th successful year. Around half of the delegates were in-house lawyers and half from the Bar. The event has very much been focused on black letter law updates from the Bar on a mixture of private and public law topics and this year was no exception.

It was my first time attending the conference and I found it both highly informative and entertaining and a great opportunity to meet advocates and other in-house lawyers. I would thoroughly recommend it for its CPD and networking. This year's event was free of charge for the first time, making it even more accessible and inclusive than ever.

Here are the highlights of what happened on the day:

Opening the conference with an introduction and welcome to the Faculty, James Wolffe QC said the event was about taking stock, getting legal updates and looking forward while gathering those important CPD points.

He went on to talk about litigation trends and changes, noting that there'd been a marked decline in civil litigation so the popular conception that there is a compensation culture is not borne out by the numbers.

He spoke of structures, procedures, cost and the profession. The publication of Sheriff Taylor's review in September will have significant implications if implemented, for example the qualified one-way cost shifting regime in personal injury cases.

On the profession, the Dean's controversial rule change means that the solicitor no longer needs to be present in court. In fact the rule's purpose is to allow the solicitor flexibility not to appear in court. It does not alter who instructs counsel.

If structural reforms take place which put more cases into the sheriff court rather than the Court of Session then some litigants will be deprived of the right to instruct counsel, as they may not be able to recover counsel's fees in the sheriff court. He feels that the starting point should be that any litigant who needs and wants an advocate should be able to instruct one. This would be a 21st century Bar.

Advocate Susan Duff took to the podium to tell us about the legal (and physical) dangers of driving at work - an analysis from a health and safety perspective. Employers are liable for employees reading emails or making phone calls while driving if the employer demands immediate checking of emails. One third of all traffic accidents are work related. More people are killed driving at work than in any other job including construction and oil and gas. The police may investigate the employer too or refer to the Health and Safety Executive (HSE). Employer liability does not apply to commuting to the employee's normal workplace and can apply to road rage if it can be linked back to employee's work, eg they are very stressed and have a heavy workload. 

What is expected of the employer? A relevant question is did the employee have to drive? Guidance is available from the HSE. The most vulnerable people are those who drive for work less frequently, rather than those who do it every day. The Crown Office has a dedicated health and safety prosecution department and she thinks we will see rising litigation on this.

She said she finds it very frightening for employees and employers and I have to say that I agreed! Could your organisation do more to manage its risks in this area? 

The next speaker was a well known name to anyone who has done a Scots law degree - the Honourable Lord Stephen Woolman. Lord Woolman gave us a highly engaging, entertaining and knowledgeable talk on Interpretation of Contract. He said that this was a very happy conference and a useful place to exchange ideas. He reminded us of the quote: "Good lawyers don't need actual knowledge, they need potential knowledge and the skills to apply it". He said, "You may not remember anything that I'm about to say but that doesn't matter!". He took us on a journey through case law, with the help of some colourful slides containing pictures from chess to polar bears and another visual aid - the portrait of Sir David Edward which was hanging on the wall. He provided three tips for construing contracts: (1) At the outset take a broad overall view of what the agreement had in mind; (2) Then unravel the parts which are more difficult to understand; and (3) Don't read it literally - put yourself in the place of the parties. He concluded by likening the approach of contract construction to that of polar bear (the one on the slides) who puts his paws carefully on the ice to see if it will bear his weight - so we should proceed carefully! 

Two more talks completed the morning. 

Firstly advocate Alice Stobbart gave an Employment Law Update, focussing on case law, including an interesting section on the question of what constitutes disability in disability discrimination rules. It is not about the cause but the effect so obesity and perhaps even alcoholism could cause disability. 

Secondly advocate Jonathan Brown gave us a Regulatory Update, focussed on complaints against solicitors and advocates. He expressed concern about the fairness of the Scottish Legal Complaints Commission's processes - though it transpired that there was a commissioner in the audience! The commission's cases have focussed mainly until now on high street solicitors but this could hit advocates too.  It's coming to all of us and we need to change what we do, he warned, so we are all going to have to become a little more defensive.

He ran through significant cases from the last year and spoke about a hot topic: third party service complaints. This is about liability to a person who is not a client eg an opponent in litigation or counterparty in a transaction. He felt there was a need for the Inner House to give guidance in some detail on this so we know where we stand eg on threshold of interest. This may come in 2014. Third party service complaints could potentially be made against in-house lawyers but whether or not any complaints have actually been made in practice or not is unclear from the information which the commission discloses. 

A question and answer session with the morning's speakers completed the morning. James Wolffe was asked: what was the main thing that the Faculty Rules Council was working on? He said it was deciding ultimately what to do with the rules of court eg should there be complete re-write or more targeted reform given structural changes. The judicial rate of interest was also being looked at. The council is very much in early days of its work. 

It was then time for a lunch break, involving a pop-up charity tuck shop and a wonderful array of cakes. 

Graeme McWilliams, ILG Committee member and in-house lawyer in Standard Life, opened the afternoon session, emphasising that the conference was all about in-house lawyers and advocates getting to know each other. 

Advocate Roisin Higgins provided an intellectual property update, focussed on image rights. She reminded us that UK law does not recognise such a thing as an image right. She then injected some celebrity glamour into the day by focusing on the case which Rihanna took against Topshop in the summer about the use of her image on t-shirt manufactured and sold by the high street retailer. She joked that this was the first time she'd seen the words "cool" and "edgy" in a judgment! Rihanna won the case but it is being appealed and the case was caveated as a decision on particular facts. 

Interestingly Guernsey has now become the first place in the world to have image rights legislation. You can register as a "personnage", ie personality. Images can also be registered in respect of a personage, including gestures such as the "Mobot" and Usain Bolt's lightening bolt. Registration is for ten years, images for three years, both with scope for renewal. There is an exception for news reporting. It is a sort of merger of copyright and trade mark law. It may impact on websites if famous individuals take advantage of the opportunity to register image rights in a tax haven. Are there policy reasons in favour of image rights? She doesn't have the answer but the Rihanna case has thrown spotlight on the Guernsey legislation. So far there have been 20 registrations in Guernsey but the test will come in infringement actions.

Next up was Anna Poole QC who gave us a Public Law Update. Anna said she thought  Roisin's technique of using celebrities to keep us engaged in the graveyard slot was inspired. Her two engagement tactics are: (1) chocolates; and (2) the top ten public law trends for 2013. We had to guess the top ten to win the chocolates so we duly wrote down our guesses and then Anna revealed them. For full details see Anna's Journal article. Sadly the audience success rate for guessing the top ten was not high - the winner of the chocolates had only got two out of the ten (although that was still two more than me!). 

David Sellar QC then gave us a Company Law Update, delivered with his very amusingly dry sense of humour. "That intro does make me appear rather dull, which is correct!" he began. He marched us through case law on how company law is evolving, talking about burgundy, unfortunate accidents and Monty Python's dead parrot along the way, saying that the cases have left him wondering what practical content the corporate veil now has.

ADR in Scotland was the next topic of the afternoon, with advocate Stephen O'Rourke giving us a fresh perspective on mediation. Will mediation be a major factor in 21st century law he asked? As lawyers we make assumptions - that court is the best solution, that litigation is financially viable, that the court wants to hear your case, that clients are patient and prepared to take the risk, and that there's no better alternative. He challenged these assumptions, for example, changing court attitudes means that we can't assume that the court wants to hear our case. We're seeing the potential privatisation of dispute resolution. 

Mediation is encouraged in the UK. Other countries like Italy and Germany go down a more mandatory route. On a recent trip to see mediation in action in the USA he found it interesting to see that the culture there is very pro-mediation. In the USA, unlike here, the parties are all put into the same room. This is explosive initially but ultimately results in a better solution. 

Stephen spoke of lawyers' transferable skills and challenged the assumptions we make about our own skill sets. Mediation is going to become part of our skill set whether we like it or not. He also challenged the assumption that commercial cases aren't as suitable for mediation as, say, family law or neighbour cases. Why are people not taking it up? Victims are scared and fundamentally misunderstand mediation and what can be achieved. 

Michael Howlin QC then provided the last talk of the day, a Public Procurement Update.  He talked about all the EU and Scottish legislative change that is coming, saying that it is going to be a glorious mess!

Graeme McWilliams closed the conference, praising Colin Anderson and Lord Malcolm for starting this annual event in 2001. He thanked all of the speakers and the Faculty of Advocates for a highly successful event. The ILG attendees felt it appropriate to toast the event's success afterwards in the Devil's Advocate bar in Advocate's Close. Until next year! 

Sara Scott, Vice Chair, ILG