Tuesday, May 31, 2011

Ex-Court of Session Fettesgate Judge Lord Dervaird made Hon Vice President of SNP/Law Society backed Scottish Arbitration Centre

john_murray_qcScottish Arbitration Centre appoints ex Court of Session judge & Cairn Energy legal secretary. LORD DERVAIRD (aka Prof. John Murray QC) the Court of Session judge who STUNNED the Scots legal establishment in the early 1990s by resigning in a cloud of rumours connected to the FETTESGATE ‘Gay Justice Conspiracy' scandal has today been appointed as an Honorary Vice President of the Scottish Arbitration Centre, a ‘joint venture’ opened by the SNP’s Fergus Ewing and backed by the Scottish Government, the Chartered Institute of Arbitrators, the Faculty of Advocates, the Law Society of Scotland and the Royal Institute of Chartered Surveyors (Arbitrate with that lot ? you must be kidding – Ed)

Fergus Ewing Jim Mather Scottish Arbitration CentreFergus Ewing, Jim Mather & Brandon Malone nab create the arbitration business. The Scottish Arbitration Centre made the announcement of the appointment of Lord Dervaird and Hew Dundas to the positions in an announcement which, as of time of publication, is yet to appear on the SAC’s own website. The announcement also gives background on the two appointees, stating “A former Court of Session judge, Lord Dervaird has experience as an arbitrator and as counsel in numerous international arbitration proceedings. He wrote the National Report, Scotland, in the ICCA International Handbook on Commercial Arbitration in 1995. He is Emeritus Professor at the University of Edinburgh, and lectures on international arbitration at London (King’s College) and Strathclyde Universities.” No mention of exactly why Lord Dervaird was a former Court of Session judge was made.

The Scottish Arbitration Centre’s second appointment today was listed as : “Hew R Dundas spent more than 30 years in the oil and gas industry, becoming general manager, legal and company secretary at Cairn Energy plc, before becoming a full time international arbitrator, mediator and expert determiner in oil and gas, energy and general commercial disputes. He made significant input into the Arbitration (Scotland) Act 2010 and has co-authored the definitive book on the Act. He is also a visiting lecturer and/or examiner in international commercial arbitration at several universities.”

Welcoming the appointments, Andrew Mackenzie, chief executive of the Centre, said: “Both men are well known in the world of international arbitration, and will play a vital role in the Centre’s promotion of Scottish arbitration and Scotland as a place to arbitrate”.

The Scottish Arbitration Centre came about after a specific proposal for an arbitration centre was presented by Brandon Malone, solicitor advocate, on behalf of the Scottish Government’s steering group at a meeting last year between Fergus Ewing and representatives of the bodies authorised to act as Arbitral Appointments Referees (AARs) under the Arbitration (Scotland) Act 2010. Mr Malone, who also happens to be Chairman of the Scottish Arbitration Centre, has been involved with the SNP for many years and was the party’s “Assistant Spokesperson on Justice & Equality” in the late 90’s, famed among other things yet to be published, for writing letters in the Scotsman newspaper defending the legal profession.

The much hyped Arbitration (Scotland) Act 2010 pushed through by the SNP Scottish Government aims to promote domestic & international arbitration under Scots Law and, laughably, seeks to promote Scotland as a place to arbitrate disputes, legal & otherwise. (Scotland as a safe place of arbitration or litigation is a ridiculous idea, much better to go to Europe or the London courts – Ed)

Critics of the Arbitration (Scotland) Act 2010 and its passage through the Scottish Parliament point out the legislation was put through Hollyrood at the suggestion of the Scots legal establishment to corner the arbitration market, seen as a lucrative business to be controlled before ‘outside elements’ took it over. The legislation seeks to increase the number of arbitrations under Scots Law while also increasing the level of business for arbitration advisers and the number of appointments of arbitrators based in Scotland, as long as they are agreeable to, or members of, or are under the control of the organisations who back the Scottish Arbitration Centre.

No one from the Scottish Arbitration Centre was available to answer questions and also no one was able to answer questions on what could be achieved by way of arbitration if cases involved the Scottish Government, the Chartered Institute of Arbitrators, the Faculty of Advocates, the Law Society of Scotland or the Royal Institute of Chartered Surveyors (I’d have to say “Steer clear of the whole thing” – Ed)

After one of our reporters made enquiries, a Scottish Government insider warned us not to run the story, and said “there may be consequences if you do” so we thought we would anyway, as we still have a free press until perhaps the First Minister declares otherwise.

Lord Dervaird Quits - Daily Record Dec 23 1989HIGH COURT JUDGE QUITS

By IAN DOW Daily Record 23 December 1989

A SCOTTISH High Court judge has resigned from the bench.

Last night mystery surrounded the resignation of Lord Dervaird who was appointed to the Court of Session less than a year ago.

News that he had quit came, after office hours, in a terse one line statement from the Scottish Office which said : "It is announced that Lord Dervaird, 54, has resigned as a Court of Session judge from January 1 1990."

The Scottish Office give no explanation, nor would it comment on the low-key manner of the announcement.

SECRET

It followed hard on a week of rumours which swept Parliament Square in Edinburgh that a High Court judge was about to resign- rumours which were vigorously denied in top legal circles.

Lord Dervaird was only appointed a judge in February last year. He came to the Bar in 1962 and was made a QC 12 years later. Most of his private work was in the civil field and since becoming a judge he has made no secret of the fact that he doesn't enjoy criminal trials. He was the judge who twice shot down the government's ruling that Air 2000 must land their Trans-Atlantic planes at Prestwick Airport.

The son of a Wigtownshire farmer he was educated at Stranraer High School, Edinburgh Academy and Oxford and Edinburgh Universities.

His title comes from the family farm, Wood of Dervaird, Glenluce. A Brilliant lawyer, he has been a member of the Scottish Law Commission and is a past chairman of the Scottish lawyers European Group. Lord Dervaird and his wife Bridget, 52, have three sons.

The Herald newspaper from Glasgow reported at the time :
Lord Dervaird quits Bench
MARGARET VAUGHAN and BENEDICT BROGAN
23 Dec 1989

COURT of Session Judge Lord Dervaird has resigned after less than two years on the Bench. The Scottish Office announced last night that his decision to leave takes effect on January 1.

This follows a meeting on Tuesday attended by the Secretary of State for Scotland, Mr Malcolm Rifkind, the Lord Advocate, Lord Fraser of Carmyllie, QC, and Scotland's most senior Judge, the Lord President, Lord Hope, during which allegations about Lord Dervaird's private life were discussed.

Independent Television News (ITN) reported at the time :
SCOTTISH JUDGE: LORD DERVAIRD RESIGNS:

SCOTTISH JUDGE: LORD DERVAIRD RESIGNS: Scottish judge, Lord 17.1.90 Dervaird, has resigned over allegations of homosexual TX activity. 2 other Scottish judges have been questioned by colleagues about their private life. There has been no police investigation & there will be no charges.

A selection of front ends from the newspapers of the time :

Fettes thief cons gay judges probe The Sun Cases for Concern Aggrieved Police

How I Mugged Man from the Crown Office the Sun 18 December 1992 Amnesty for Fettes Raider & Every word is true
The Independent newspaper reported at the time :
Calls for inquiry into 'collusion by gay judges'

MARY BRAID
Sunday, 13 September 1992

PRESSURE is growing this weekend for a full inquiry into a leaked police report investigating allegations that homosexuals in the higher echelons of the Scottish legal system may have subverted the course of justice.

Opposition MPs say the report 'strikes at the heart of the Scottish judiciary' and that the allegations in it must be investigated immediately. The report includes the names of a High Court judge, two sheriffs and two other leading members of the legal system.

Looking into the handling of five legal cases, the report concludes that the authors felt that, in one case, the decision to drop charges and prosecution was 'a tactical one . . . to prevent the possibility of evidence being presented which could potentially compromise senior figures in the judiciary'.

One of the cases involved the withdrawal of 47 of 57 charges in a 'rent-boy' investigation shortly before the trial was due to begin. Another concerns an embezzlement surrounding Burnett Walker, a collapsed firm of solicitors, two partners of which were homosexual.

The leak has sparked the latest in a long line of homosexual-related scandals to hit Scottish legal circles since the resignation of Lord Dervaird, a respected High Court judge, in December 1989. Since then there have been rumours that some of the profession's leading lights have been professionally compromised by their homosexuality.

A conspiracy theory has developed which incorporates the suicide in 1988 of Ian Walker, senior partner in Burnett Walker. The leaked report says: 'The instance is one of a well-established circle of homosexual persons in Edinburgh with influence in the judiciary who may, or may not, have exerted that influence, but who have formed associations which in themself lay them open to blackmail.'

The report, prepared for Sir William Sutherland, Chief Constable of Lothian and Borders, was initiated after Tam Dalyell, Labour MP for Linlithgow, complained to Sir William about the handling of some cases.

Yesterday Mr Dalyell denied being the source of the leak. He has written to the Prime Minister asking for a full inquiry. Mr Dalyell, who was interviewed by police yesterday, said that without an inquiry people named in the report might suffer 'a slow trial by tabloid newspapers'.

Alistair Darling, Labour MP for Edinburgh Central, said a full inquiry should be held to put 'the rumours to rest'.

Lothian and Borders police said all allegations of criminal activity had been sent to the Procurator Fiscal. It was up to the Crown Office to decide whether to prosecute and the nature of charges.

The leak comes within weeks of the 'Fettesgate' break-in at police headquarters in Edinburgh. Police refuse to say whether there is any connection.

In a typically Scottish move, an investigation & subsequent report was written by members of the Scots legal establishment on the Fettesgate allegations, clearing everyone (including the church mice who shined the customer’s shoes – Ed). That report, for all its worth can be read online or downloaded as an acrobat pdf, here : the report on an inquiry into an allegation of a conspiracy to pervert the course of justice in scotland by WA Nimmo Smith QC & JD Friel

Scots Human Rights rift : Justice Secretary MacAskill accuses Supreme Court judges of gaining Scots Law knowledge during visits to Edinburgh Festival

The furore over the UK Supreme Court’s ruling in the Nat Fraser case continues today with reports in the Scottish Press of Scotland’s Justice Secretary Kenny MacAskill hurling insults at the Supreme Court judges, two of whom are Scottish. Mr MacAskill, in what appears to be a rather angry rage over perceived interference from the Supreme Court in Scottish criminal cases, is reported to have claimed the Supreme Court judges picked up their knowledge of Scots Law during visits to the Edinburgh Festival (Someone’s lost the plot! – Ed)

The Herald newspaper reports :

MacAskill in new attack on Supreme Court rulings

Published on 31 May 2011

brian currie political editor

JUSTICE Secretary Kenny MacAskill said UK Supreme Court judges should not interfere in Scots Law, when their knowledge of it was “limited to a visit to the Edinburgh Festival”.

His inflammatory attack was made in advance of a meeting of the Scottish Government’s Cabinet today to discuss options that a spokesman said were for remedying a situation where Scottish criminal cases face being sent to the UK Supreme Court on human rights grounds.

Although two distinguished Scottish judges – Lord Hope and Lord Rodger – form part of the Supreme Court, Mr MacAskill said the majority were English, Welsh or Northern Irish and had no knowledge of the custom or practice of the law in Scotland.

He said yesterday: “We just want to be treated the same as other legal systems – we’re not, because we’re undermined routinely by a court that sits in another country and is presided over by a majority of judges who have no knowledge of Scots law, never mind Scotland.”

The Scottish Government’s move comes after a ruling last week that Nat Fraser’s conviction for murdering his estranged wife Arlene was unsafe and controversy over the Cadder judgment last year on the rights of suspects to legal representation.

The Cadder ruling overturned a decision by seven senior Scottish judges by finding that allowing suspects to be held and questioned for six hours without a lawyer breached the European Convention on Human Rights.

Mr MacAskill said: “It was never intended that the Supreme Court would be routinely changing Scottish criminal law and that is what has happened.

“It was meant to be a situation that, when the Supreme Court was invoked, criminal law would remain in the jurisdiction of the High Court of Justiciary here in Scotland.

“Only in Scotland did we see a decision taken in London by a court that was not meant to deal with criminal matters result in a situation where we had to have emergency legislation through the Scottish Parliament and turn Scottish criminal law on its head.”

Mr MacAskill said the Scottish legal system should have direct access to the European Court in Strasbourg and would accept its strictures. However, he added: “We’ll do so through our own courts at our own pace in our own way, not have it imposed by a court in London that is made up of a majority of judges who do not know Scots Law, who may have visited here for the Edinburgh Festival”.

His hardline comments mirror the approach taken by First Minister Alex Salmond in the wake of the Fraser judgment when he said: “We certainly don’t need a Supreme Court which by definition comprises of judges, whose familiarity with Scottish legal procedures is inexact at best, to be poking its nose in, putting forward a succession of adventurous moves, encroaching on territory where it was never meant to be.”

For Scottish criminal cases, the Supreme Court is supposed to be used only when the case relates to “devolution matters”, a term covering the legislative competence of the Scottish Parliament in dealing with human rights issues.

John Scott, a human rights expert and solicitor advocate, said “a sense of perspective” was being lost.

“There’s only a very tiny number of cases ever go to the Supreme Court,” he said. “It doesn’t have jurisdiction over the vast majority of criminal cases, it’s only in relation to human rights points.”

Mr Scott said the Crown was going to the Supreme Court at the end of next month to try to get decisions in its favour.

He added: “It’s odd, bordering on hypocritical, to say we don’t like this jurisdiction but we are going to go down next month to try to get some decisions that we like there.

“The Law Society of Scotland suggested we should have a human rights audit of all of Scottish criminal law in order that we would be able to withstand challenge whether it’s from the Supreme Court or the European Court of Human Rights.

“That is perhaps a way ahead that we could all agree on, where we can put Scottish law in a position where it can withstand any challenges for the centuries ahead.”

Friday, May 27, 2011

Law Society of Scotland to appoint up to 10 non-lawyer Council members in window dressing exercise for Legal Services Act regulation

Law Society of ScotlandUp to 10 non-lawyers are to join Law Society’s Council to give an appearance of non-bias in regulation matters. NON-LAWYERS have never had it so good as the Law Society of Scotland announces it has decided to appoint up to ten of the lesser spotted stooges to join its ‘dictatorial’ Council, the body which issues the edicts which govern the Law Society’s membership and decide how the profession proceeds on key issues such as regulation, vote fiddling, parliamentary bullying lobbying and of course, how the public are treated on legal & justice issues (Haha – Ed).

The appointments come in the wake of proposals to create yet another regulatory committee with 50% non-lawyer membership to satisfy the requirements of the SNP Scottish Government’s Legal Services (Scotland) Act 2010, the much watered down, expectedly poor, typically Scottish, perhaps even third rate equivalent of the UK Parliament’s Legal Services Act 2007 the aims of which were to open up competition in the legal services sector, also allowing majority ownership in law firms or new non-solicitor companies to enter the field of legal services provision.

In Scotland, there will be no such reforms to access to justice or expansion of consumer choice in legal services, and ownership of already established Scottish law firms is to be heavily restricted (would anyone be fool enough to want to own a Scots law firm ? – Ed)

The Law Society of Scotland issued the following Press Release on the subject :

Non-solicitor members to join Society's Council

The Council of the Law Society of Scotland is to include non-solicitors voting members for the first time, following changes approved at the Society's general meeting today (Friday 27 May)

Amendments to the Law Society of Scotland's constitution allowing for the appointment of up to 10 non-solicitor Council members were approved unanimously. Other amendments to create a new regulatory committee with 50% non-solicitor membership and a non-solicitor convener were also passed at the general meeting held in Edinburgh. The Society presently has three non-solicitor observers who can speak at Council meetings but cannot vote. An opinion from Senior Counsel confirmed that the Society's constitution had to change in order to allow for non-solicitor voting members of Council as required in the Legal Services (Scotland) Act 2010.

The new constitution presented to members at the AGM in March included provision for full non-solicitor voting members of Council as well as other changes. However, the motion to rescind the existing constitution failed to achieve the required two thirds majority support and the motion for the new constitution was withdrawn. The decision was therefore taken to bring forward a more limited series of constitutional amendments to today's special general meeting to meet the requirements placed on the Society by the Legal Services (Scotland) Act.

Following the meeting, Jamie Millar, outgoing president of the Law Society of Scotland, said: "Given the Society's important responsibilities towards the public interest, the Scottish Government made it clear that non-solicitors should be sitting on and voting as part of our ruling Council. Our three non-solicitor observers on Council already make a tremendous contribution and I have no doubt the Society will benefit even more from having full voting non-solicitor Council members."

Society members also approved constitutional amendments to create a new regulatory committee with 50% non-solicitor members and a non-solicitor convenor. The Society had received conflicting legal advice on whether constitutional change was required to create this new committee, as required by the Legal Services (Scotland) Act 2010. Council therefore chose to remove any ambiguity by bringing forward amendments to the existing constitution at today's general meeting. These amendments were approved unanimously.

Today's special general meeting also included a general discussion on a draft new constitution, which has been amended significantly from that considered by members earlier in the year.

Jamie Millar added: "We listened carefully to the concerns expressed by members during the AGM two months ago. We have also met with a number of groups within the profession including representatives of the Scottish Law Agents Society and I hope the changes made since March help to respond to these genuine issues of concern. Today's general meeting has given us another important opportunity to consult with and listen to our members. We still plan to bring a new constitution forward for adoption at the next general meeting in September and we will be undertaking further dialogue with members over the next few months."

Monday, May 23, 2011

Spotlight on 16 year Court of Session civil damages claim against Motherwell College as Lord Woolman declares “avizandum”

Lord WoolmanAvizandum : Court of Session judge Lord Woolman to rule on Scotland’s longest running civil damages claim. COURT OF SESSION judge LORD WOOLMAN, after listening to evidence for the past three years in this long running long civil damages claim against Motherwell College by Mr Martin Wilson a Music lecturer has declared “avizandum” (the private consideration of a case by a judge before reaching judgment) in the SIXTEEN YEAR old case. An earlier unanimous decision by an Employment Tribunal confirmed that Mr Wilson was unfairly forced out of his job while on long term sickness leave

The final set of hearings in the case, commonly known as M.Wilson v North Lanarkshire Council & Others (A1628/01) which has generated thousands of pages of transcripts, numerous hearings where internationally acclaimed medical expert witnesses rubbished the testimony of Motherwell College’s own ‘experts’, and more recently brought about Scotland’s first civil law McKenzie Friend in late 2009. It has led to “significant concerns” from legal insiders over the treatment of Party Litigants in the Scottish Courts system.

Concerns over how a civil damages claim of this nature can effectively get stuck in the Scottish legal system for an unprecedented sixteen years have also been expressed by consumer organisations and the media, where some journalists who attended the hearings were reported “to have been staggered” by the conduct of defending counsel in some matters they witnessed.

Closing submissions were made in the absence of a transcript of the most recent hearings and, while Mr Wilson has been given no option but to proceed as a Party litigant, the defenders North Lanarkshire Council and Motherwell College appointed Mr. Ian MacKay QC and his Junior Mr Calum Wilson - both defenders also being represented by Simpson & Marwick.

Scottish Law Reporter has previously covered the case here : Record 15 year wait for justice approaches for lecturer in Court of Session showdown with former Motherwell college ‘Bully Boss’ principal

Further developments in the final days of the long running case exposed the involvement of Marsh, who are now the insurers of North Lanarkshire Council who operate Motherwell College.

The latest developments along with some quite startling revelations were recently reported by Independent Law Journalist Peter Cherbi’s Diary of Injustice law blog, in an article reprinted below : Access to Justice ? Law Society's insurers Marsh UK linked to SIXTEEN YEAR Court of Session civil damages claim against Motherwell College 

Marsh UK, the UK subsidiary of the US insurance firm Marsh & McLennan companies which saw some of its directors plead guilty as a result of an investigation by the New York District Attorney's Office of bid-rigging and price-fixing in the insurance industry has now been linked to Scotland's longest running civil damages action claim, now in its SIXTEENTH YEAR in the Court of Session, involving Motherwell College & North Lanarkshire Council after the local authority released details in response to a Freedom of Information request.

Lord WoolmanCourt of Session judge Lord Woolman hears Scotland’s longest running civil damages claim. Now in its Sixteenth year in the Court of Session, fresh hearings in the long running civil damages claim in front of judge Lord Woolman began earlier on Tuesday of this week. M.Wilson v North Lanarkshire Council & Others (A1628/01) which has its origins in the mid 1990’s and brought about Scotland’s first civil law McKenzie Friend in late 2009, involves a sole party litigant, Mr Martin Wilson, a former Music lecturer of Motherwell College who, according to media reports was forced out of his job after sustaining severe back injuries during the course of his duties as a music lecturer during his time at the College in the 1990’s.

Responses obtained by Diary of Injustice in reply to Freedom of Information enquiries reveal that Marsh, the insurance firm who insure all members of Scotland’s legal profession without exception, now also insure North Lanarkshire Council, who operate Motherwell College.

An official from North Lanarkshire Council replying to an FOI request admitted : “I can advise that North Lanarkshire Council’s Insurance Brokers until 30 September 2007 were AON, and from 1 October 2007 this service has been provided by Marsh. I can advise also that Travellers Insurance Company Limited have provided employers liability cover for the whole period of your request.”

In what is now Scotland’s longest running civil damages claim, Mr Wilson, the party litigant, has been forced to represent himself after several of Scotland’s leading law firms suspiciously abandoned his case at the very last minute. Mr Wilson is facing North Lanarkshire Council and their indemnity insurers, Travelers Insurance Co Ltd who are both being represented in court by Edinburgh law firm Simpson & Marwick. Senior Counsel for Simpson & Marwick is Ian MacKay QC, Junior Counsel being Calum Wilson both of Compass Chambers.

Now, following further investigations by Diary of Injustice and despite the outrageous time it has taken for Scotland’s civil justice system to hear their testimony, hearings in the Court of Session have shown that many internationally acclaimed experts have supported the party litigant’s claims.

I first reported on Mr Wilson’s case late last year, here : FIFTEEN year wait for justice against Motherwell College marks poor state of Scotland’s ‘Victorian’ Justice System on European Civil Justice Day where legal insiders who attended previous court hearings reported that Mr Wilson, who had been put in the position of having to represent himself after several big name law firms, who were at the time & are currently all insured with Marsh UK, withdrew from Mr Wilson’s case at the last minute prior to scheduled hearings of the Proof. Mr Wilson had also encountered repeated & numerous refusals of ‘expert witnesses’ from Scotland to assist his case as long as he was unrepresented. As a party litigant without representation, Mr Wilson was, according to court observers, forced abroad to Japan and the United States for supportive expert medical reports.

According to court documents seen by Diary of Injustice last October, Mr Wilson was previously represented by the well known Edinburgh law firm of Balfour & Manson, who were appointed by Scotland’s largest teachers & lecturers Union, the Educational Institute for Scotland (EIS), who spent tens of thousands of pounds assessing Mr Wilson’s injury as a valid claim, and that it should proceed to court. Amazingly it took the EIS almost THREE YEARS to lodge the summons against Motherwell College.

Papers studied by legal insiders reporting on the case revealed that Balfour & Manson, after being appointed by the EIS spent a staggering EIGHT YEARS working on Mr Wilson’s injury claim, and then at the last minute, decided to withdraw from acting for their client with only weeks to go before scheduled Proof Hearings in the Court of Session.

Balfour & Manson’s withdrawal from acting for Mr Wilson then became a suspicious pattern followed by further four law firms, including the Glasgow based Harper Macleod also withdrawing at the last minute, some eighteen months after representing Mr Wilson. Harper McLeod claimed they had ‘suddenly discovered’ “a commercial difficulty” in that they had an annual retainer from Motherwell College for several years, and had represented the College in Mr Wilson’s Employment Tribunal hearing over his unfair dismissal, which Mr Wilson won on a unanimous decision. Motherwell College also appealed the Employment Tribunal decision on Mr Wilson’s case and lost again.

A further two legal firms took on Mr Wilson’s case and then were apparently persuaded to drop their client, amazingly even returning fees paid to them for their service.

College's 300K Bully Bill Sunday Mail June 15 2003Motherwell College squandered £300K of taxpayers money fighting a string of Tribunal hearings involving bullying allegations against lecturers which the College lost. A number of media reports, referred to in recent coverage of the case by Scottish Law Reporter, show Motherwell College were involved in a string of Employment Tribunal decisions the college lost during Richard Millham’s term as Principal of Motherwell College. Allegations in newspapers including the Sunday Mail reported that “In 1999, lecturer Martin Wilson won £4000 after a tribunal ruled he had been unfairly fired. He had a back injury and could not work. A close friend said : "He was targeted by Millham. There was a strong climate of fear, which is still there ."

According to Scottish Law Reporter who last year reported on the case, “From 1995-1998 Motherwell College opposed Mr Wilson's claim for Unfair Dismissal while on long term sickness leave and lost, to a unanimous decision. Undeterred Motherwell College appealed the decision, and lost again. This was the first of several high profile Employment Tribunal cases lost by the Board of Management of Motherwell College, often to unanimous decisions against it.”

Simpson & Marwick, who are representing Motherwell College & North Lanarkshire Council, are themselves famed for their representation of solicitors accused of professional negligence & client swindling, all supposedly covered by the Law Society of Scotland’s Master Policy Professional Indemnity Insurance Scheme, operated by Marsh to defend against negligence claims raised by clients. The Master Policy and its administration, operation was linked in 2009 to client suicides in an independent report published by the University of Manchester’s Law School.

One of Simpson & Marwick’s partners, Dr Pamela Abernethy famously appeared at the Scottish Parliament’s Justice Committee during 2008, telling msps that pleural plaques, an asbestos related condition, could actually be good for people. I reported on Dr Abernethy’s incredulous claims in September 2008, here : Insurance lawyers argue against laws to help asbestos victims asserting part of their suffering 'is a good thing'

Marsh UK, the British end of the gigantic US insurance operation appear to be linked to many insurance deals in the public & private sector, ranging from multiple services provided by local & national government including law & order, to the private sector. Marsh also enjoy a monopoly on the insurance of all solicitors in Scotland through the Law Society of Scotland’s ‘brutal enforcement’ of the Master Insurance Policy arrangements where all solicitors are required to pay into the professional indemnity insurance scheme if they want to practice any form of law.

Marsh appear to have heavy political influence in the UK, with Conservative Lord Ian Lang now the Chairman elect of Marsh & McLennan companies, according to his register of interests published as per his duties as Chairman of the Advisory Committee on Business Appointments. Lord Lang joined the Marsh & McLennan board in 1997 and has assiduously refused all invitations to comment since news of the 'Marsh Frauds' broke, frauds which were accompanied by valid injury and disability claims being routinely denied. More on Lord Lang’s position at Marsh & McLennan and his career history, along with documents detailing serious allegations against many directors of Marsh including Lord Lang, can be viewed at Scottish Law Reporter, HERE

Tuesday, May 10, 2011

Serving Sheriff’s law firm drafted in to defend Desmond Cheyne QC over French home work dispute, allegations builders ‘were threatened’ by Police

A currently serving Sheriff, Paul Reid, who was appointed to the bench by Justice Secretary Kenny MacAskill in 2009 and may be better known to some as one of the many ‘Fiscals’ for the Law Society of Scotland whose job it is to prosecute crooked lawyers (HaHa – Ed) before the courts or the Scottish Solicitors Discipline Tribunal, has been drafted in by Advocate Desmond Cheyne QC to represent him against claims reported in the media of money owed to two builders on work carried out on Mr Cheyne’s French holiday home.

The Sunday Mail newspaper recently reported that “A plumber and joiner are chasing a leading lawyer for £22,000 for work they did on his French holiday home. George Thomson and Scott Johnstone spent 12 days renovating the farmhouse of advocate Desmond Cheyne.”

In pursuit of money owed to the pair of builders, complaints were filed at the Faculty of Advocates regarding Mr Cheyne although the Faculty dismissed the complaints, as it normally does against its members when a complaint is made.

A letter was subsequently sent from Sheriff Reid’s law firm, Flemming & Reid, of Glasgow, threatening an interdict and action for “non-harassment” if the builders continued to ask for monies claimed to be due to them.

It appears after the two builders pressed their point they should be paid for their work, a letter was sent from Sheriff Paul Reid’s law firm, Flemming & Reid, of Glasgow, threatening an interdict and action for “non-harassment” if the builders continued to ask for monies claimed to be due to them.

The two builders were then contacted by a Police Officer from Gorbals Police station in Glasgow, who had evidently been provided with copies of exchanges of letters between Mr Cheyne, the Faculty & the builders. The Police Constable, apparently a probationer then went onto threaten the builders with arrest if they contacted Mr Cheyne again, claiming they would be charged with extortion.

In communications seen by the media, Carole Fergusson Walker, a solicitor for the Faculty of Advocates was told by the builders : "Mr Cheyne decided to involve a Solicitor who sent us a letter using words like Harassment, Extortion and will start proceedings if we persist with our "vendetta". He also instructed a third party to contacted Strathclyde Police regarding the content of an email. (letters & email attached) PC [name redacted] contacted us on Sunday 17/4/11 and repeated these words to us. We decided to visit Gorbals Police Station on Tuesday 19/4/11 and speak to PC [name redacted]. Due to him being off duty we spoke to Sergeant [name redacted] for over an hour. He was alarmed his PC had used these words and would deal with the matter. We also discussed the police's involvement, he said it was a civil matter, and there has to "criminal intent in order for a crime to be committed" he did not see any intent. If you read Mr Cheyne's letters over the last couple of years, you will see he has changed his story again, named Victor McGinley as his "main contractor" but more importantly admits he never gave Mr McGinley any monies for us."

A legal insider said it sounded like the Police officer had overstepped the mark as it was clearly a civil case, and should face an investigation over his comments and or links to persons in this case. He said : “The Police did not exist as a service to scare off creditors.”

The two builders are currently considering whether to pursue the matter in court. The report from the Sunday Mail and a copy of Mr Cheyne’s letter to the builders, follows below :

Workmen chase advocate after carrying out £22k renovations to holiday home

Apr 3 2011 Russell Findlay, Sunday Mail

A PLUMBER and joiner are chasing a leading lawyer for £22,000 for work they did on his French holiday home. George Thomson and Scott Johnstone spent 12 days renovating the farmhouse of advocate Desmond Cheyne.

They drove the 2300-mile round trip from Scotland to Agen and toiled for 10-hour days in the summer heat on the luxury home, which has its own swimming pool. But when they asked for payment, Cheyne referred them to painter Vic McGinlay who he said was the "main contractor". Now two years on, George and Scott, from Torrance, near Glasgow, have still not been paid for their work.

Before taking the job, George met the lawyer at his home in Pollokshields, Glasgow, to discuss the work. And despite later telling them to seek payment from McGinlay, Cheyne paid the pair over £10,000 directly for materials.

George, 53, said: "If McGinlay was the main contractor, why did he need me present at the meetings with Cheyne? Also, why did Cheyne pay money for materials into my account and Scott's account and not via McGinlay? We were led to believe we were working for Cheyne as self-employed businesses and therefore should have been paid direct by him."

The pair returned to Scotland towards the end of the job to attend George's brother's wedding. While away, they were told by McGinlay not to return and were later accused of walking off the job and threatening Cheyne.

Scott, 47, said: "I resent his accusation that he was threatened. I believe George did swear at him but, in his defence, being spoken to in an arrogant manner by Cheyne would make a saint swear."

George and Scott complained about Cheyne to the Faculty of Advocates but their case was kicked out after they ruled it was a personal matter.They have also enlisted the help of their MSP David Whitton. He said: "I contacted the Faculty of Advocates and I have to say I was very disappointed at their attitude.

"Mr Cheyne is a professional man and he knows the work has been done by my constituents and he knows they haven't been paid for that work. Unfortunately he has made no effort to try to resolve this situation and I would hope he would attempt to do so."

When contacted by the Sunday Mail, Cheyne said: "Were these two wearing cowboy hats when they spoke to you?"

He earlier told the faculty: "They were employed by the contractor. His account was paid in full. "I believe I have dealt with the complainers in as helpful a manner as possible. But they have sworn at me and threatened me."

Vic McGinlay, from Townhead, Glasgow, was unavailable for comment.

Privacy law bid fails as European Court rules against Max Mosely

Max Mosely, the former President of the FIA which controls Formula One motorsport has lost his case in the European Court to force newspapers to contact people before exposing their private lives.

BBC News reported in 2008, the UK High Court awarded Mr Mosely £60,000 damages after ruling the News of the World invaded his right to privacy by reporting on his sex life in a story which was later reported on in The Times, HERE . Victory might have led to new privacy laws, which press bosses oppose.

Mr Mosley is reported to have expressed his disappointment at the European Court ruling, the conclusion of which can be read below :
127. In the present case, the defendant newspaper relied on the belief of the reporter and the editor that the sexual activities in which the applicant participated had Nazi overtones. They accordingly argued that publication was justified in the public interest. Although Eady J criticised the casual and cavalier manner in which the News of the World had arrived at the conclusion that there was a Nazi element, he noted that there was significant scope for differing views on the assessment of the “public interest” and concluded that he was not in a position to accept that the journalist and editor concerned must have known at the time that no public interest defence could succeed (see paragraphs 23-24 above). Thus, in the applicant’s own case, it is not unlikely that even had a legally binding pre-notification requirement been in place at the relevant time, the News of the World would have chosen not to notify in any event, relying at that time on a public interest exception to justify publication.

128. Second, and more importantly, any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it. A regulatory or civil fine, unless set at a punitively high level, would be unlikely to deter newspapers from publishing private material without pre-notification. In the applicant’s case, there is no doubt that one of the main reasons, if not the only reason, for failing to seek his comments was to avoid the possibility of an injunction being sought and granted (see paragraphs 21 and 52 above). Thus the News of the World chose to run the risk that the applicant would commence civil proceedings after publication and that it might, as a result of those proceedings, be required to pay damages. In any future case to which a pre-notification requirement applied, the newspaper in question could choose to run the same risk and decline to notify, preferring instead to incur an ex post facto fine.

129. Although punitive fines or criminal sanctions could be effective in encouraging compliance with any pre-notification requirement, the Court considers that these would run the risk of being incompatible with the requirements of Article 10 of the Convention. It reiterates in this regard the need to take particular care when examining restraints which might operate as a form of censorship prior to publication. It is satisfied that the threat of criminal sanctions or punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention.

iii. Conclusion

130. As noted above, the conduct of the newspaper in the applicant’s case is open to severe criticism. Aside from publication of the articles detailing the applicant’s sexual activities, the News of the World published photographs and video footage, obtained through clandestine recording, which undoubtedly had a far greater impact than the articles themselves. Despite the applicant’s efforts in a number of jurisdictions, these images are still available on the Internet. The Court can see no possible additional contribution made by the audiovisual material (see paragraph 115 above), which appears to have been included in the News of the World’s coverage merely to titillate the public and increase the embarrassment of the applicant.

131. The Court, like the Parliamentary Assembly, recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media (see paragraph 57 above). The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10. However, as noted above, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination. In this regard the Court takes note of the recommendation of the Select Committee that the Editors’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception (see paragraph 53 above).

132. However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement. The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention by the absence of such a requirement in domestic law.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been no violation of Article 8 of the Convention.

Done in English, and notified in writing on 10 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.