Outer House dismisses damages claim by former teacher with mental health difficulties made to undergo competence process

By Mitchell Skilling

It was the pursuer’s case that her employer did not take reasonable care for her safety and exposed her to unnecessary risk of psychiatric injury. It was accepted that the parties’ names should be anonymised due to the severity of the pursuer’s mental health problems.

The case was heard by Lord Summers, with E MacKenzie QC appearing for the pursuer and C Murray and C Fraser for the defender.

Out to get her

The pursuer, T, worked at AW Primary School between 2005 and 2016. She went on a period of maternity leave in 2011 and returned in 2012. On her return, the head teacher arranged for T to be observed as she thought that the pursuer did not have good classroom management skills. The pursuer would engage with three different head teachers at AW School from 2012 to 2016.

The pursuer had experienced mental health issues from the 1990s onwards, including paranoia concerning previous head teachers at other schools. On 25 March 2011, 15 days after giving birth to her daughter, she was diagnosed as having an adjustment disorder with a brief depressive reaction and in 2013 was taking four different medications.

It was decided by the second head teacher that a formal competence process should be commenced in respect of the pursuer. During this time, the pursuer’s depression worsened, and she became convinced that her head teacher and HR department were “out to get her” and intended to procure her dismissal. It was eventually agreed that the pursuer should be sent to another school.

The pursuer was placed on precautionary suspension in October 2016 following the transfer and was later admitted to a psychiatric ward after trying to commit suicide. She reached an agreement for her termination in May 2017, which was followed by another suicide attempt and a hospital admission. She was later discharged from hospital and placed in the care of her parents.

It was the pursuer’s case that she had been inadequately supported by the defender and had been “set up to fail” by the transfer. The deterioration in her mental health had been caused by the commencement of the competence process, which had caused her stress and anxiety. In her view, the defender had not been entitled to commence that process and the way it had gone about it was in breach of its duty of care to her.

Knew nothing of circumstances

In his decision, Lord Summers said of the competence process: “The pursuer’s belief that the Competence Process was used to force her out of teaching was not in my opinion justified. The pursuer’s previous head teacher, RM also thought that the pursuer’s teaching was deficient. I accept that RM did not initiate a competence process but it is clear from evidence that RM shared NT’s concerns.”

He continued: “There is little indication that the pursuer’s stress and anxiety was materially affected by the Competence Process or the arrangements made in that connection. I consider that it was the pursuer’s beliefs about NT that caused stress and anxiety. The pursuer’s belief that the Human Resources department was opposed to her also fuelled her stress and anxiety. I am satisfied that NT was justified in commencing the Competence Process and did not do so for improper motives.”

Addressing the duty of care issue, Lord Summers observed: “It does not seem to me that [the information held by the defender] would entitle me to hold that [it] should reasonably have foreseen that the Competence Process would expose the pursuer to the risk of injury. It knew nothing about the pursuer’s circumstances in 2009 or the relevance of the information for her situation in 2013.”

He went on to say: “Had it considered the matter, the defender would have been entitled to take account of the fact that the Competence Process incorporated psychological support in the form of a mentor. This was a standard support measure. I do not consider that it had any information to suggest that this was inadequate.”

Lord Summers concluded: “In light of the foregoing I do not consider that the defender was under a duty to seek advice in 2013 from Human Resources specialists with expertise in psychiatrically vulnerable employees, or from senior education managers or Occupational Health specialists with a view to reducing the risk of psychiatric injury or the other legal duties pleaded by the pursuer.”

Decree of absolvitor was therefore pronounced in favour of the defender.

Sheriff Lindsay Wood under investigation over possible conflict of interest

Sheriff Lindsay Wood’s activity is being examined by Craig Turnbull, Sheriff Principal of Glasgow and Strathkelvin.

Sheriff Wood signed off on 22 warrants during the failed investigation into the takeover of Rangers between 2013 and 2015. One of them allowed officers to raid the offices in London of Holman Fenwick Willan, the law firm representing administrators Duff & Phelps. It was later found to be unlawful and made “without proper safeguards”.

Following the collapse of Rangers, David Grier, David Whitehouse and Paul Clark, of consultancy firm Duff & Phelps, were appointed to deal with the club’s affairs. They were arrested but later cleared of all charges.

Mr Grier, 61, said: “I can confirm that my complaint to the Judicial Office of Scotland has been accepted. They have informed me that Sheriff Principal Turnbull has been appointed to look into it. I look forward to hearing the outcome of his investigation.”

The code of Scottish judicial ethics details that it is unacceptable for a judge to adjudicate on an issue in which they or family members have a financial interest. It adds: “An example of such an interest might be the holding of shares in a public company.”

The Judicial Office said: “Judicial conduct complaints are dealt with on a confidential basis in accordance with the Judiciary (Scotland) Rules 2017.”

Addleshaw Goddard doubles turnover five years after Scottish merger

The firm is on course to record a fifth consecutive year of double-digit percentage income growth in Scotland since it merged with HBJ on 1 June 2017. Compared with 2017, AG now has 70 per cent more solicitors across offices in Edinburgh, Glasgow and Aberdeen, with 69 trainees also joining the firm in that time.

David Kirchin, head of Scotland at Addleshaw Goddard, said the firm has set ambitious targets to continue that growth trajectory over the next three years.

He said: “The growth and development of our business in Scotland has exceeded all expectations over the past five years, and we are using this milestone to set new targets as we look to build on that success.

“Our commitment is to continue our work with growing businesses and organisations, along with their investors/funders, across all of our sectors in Scotland and the wider UK, as well as supporting international businesses as they look to develop here.”

In addition to a number of Scottish lawyers taking up positions at the firm’s global offices over the past five years, several partners in the Scottish team have key roles in the wider firm’s sector teams, including: Alison Newton, co-head of the UK & International real estate sector; David McEwing, co-head of energy & utilities; Helena Brown, head of data; Sarah Baillie as co-head of renewables and low carbon; and David Anderson, who plays a leading role in the firm’s work with high-growth tech businesses.

Addleshaw Goddard also plays an active role in the Scottish business and legal communities, for example partnering with leading economic think-tank The Fraser of Allander Institute on the ‘Scottish Business Monitor’, which gauges the sentiment of more than 500 Scottish businesses every quarter, working with charities including the Rock Trust, and partnering with The Lawscot Foundation to help academically gifted students from less advantaged backgrounds access a career in law.

Mr Kirchin added: “When HBJ joined AG, the driving force was to deliver stronger UK-wide client and sector offerings in response to increasing client demand for advisers based in the Scottish market with a capability across the UK and beyond. We targeted growth in a number of key sectors, particularly transport, energy, real estate, financial services and tech – and we have delivered that.”

The growth in Scotland is supported by wider developments within the firm as, in the past five years, Addleshaw Goddard has opened multiple offices in Germany and France, and earlier this year expanded into Luxembourg and Ireland. The latter move came through a merger with Dublin-based firm Eugene F Collins which was strongly influenced by the Irish partners’ experience of speaking to those who had been involved in the merger in Scotland.

International Criminal Court to open office in Kyiv

Karim Khan, the ICC prosecutor, confirmed the move at a press conference yesterday following meetings with Ukrainian, Polish and Lithuanian prosecutors at Eurojust’s headquarters in The Hague.

He said: “We can’t fly in and out. In the next few weeks we will be working on opening an office in Kyiv. We have already seen it, we have very good cooperation with the [Ukrainian] prosecutor general. I think this is very important.”

The ICC has already deployed 42 investigators, forensic experts and support personnel in Ukraine, the largest deployment in the organisation’s history.

Mr Khan added: “I hope that we can work with the Prosecutor General’s Office of Ukraine, providing support to Ukraine, which has the initial responsibility to conduct an independent investigation against the perpetrators.”

Hugh Williamson, Europe and Central Asia director at Human Rights Watch, told DW: “It’s important that these teams are well-coordinated, sharing resources, supporting the prosecutor’s office in the work they’re doing.”

Scottish Conveyancers Forum proposed

The Steering Committee of the Scottish Conveyancers Forum is seeking the views of the profession on the remit and organisation of the body.

Ross MacKay, of Coulters Legal, chair of the committee, said in a letter circulated to conveyancers: “It is suggested that what is needed is a gathering of like-minded firms willing to come together to develop a new Scottish Conveyancers Forum building on (but not replacing) the success and efforts of the current similar bodies in Edinburgh and Glasgow to achieve those aims. It would be hoped that in short time its branding and marketing can be developed for the benefit of all its members (whoever they may be) as well as agreed protocols aimed at making the sale/purchase process more streamlined for the benefit of not just the profession but of course our clients.

“I would strongly argue that while we are all in our own way competitors and we all have our own marketing budgets, etc. there is a glaring omission in not having an overarching body which can represent our specific sector.

“To that end therefore, a small Steering Committee has met online and agreed to develop this concept by initially adopting a working version of a proposed constitution to create such a Scottish Conveyancers Forum. What we as a group now require is support from you and to that end we would ask you to contact myself initially to express your interest and possible thoughts as to how the Forum can be taken forward. Once we hear from you we can then circulate further information and work up action points for discussion and circulation.”

Mr McKay may be contacted on: ross.mackay@coulters.io.

Scotland becomes first UK nation to ban ‘problematic’ plastics

The ban means it will be an offence for businesses in Scotland to provide the items – which include plastic cutlery, plates and stirrers.

Around 700 million of these single-use items are currently used in Scotland every year.

The regulations come into force following a six month grace period, during which Zero Waste Scotland ran a business campaign to raise awareness on how to prepare.

The legislation, which was passed by the Scottish Parliament during COP26 last year, includes exemptions for single-use plastic straws, to make sure that those who need them for independent living or medical purposes can still access them.

Circular economy minister Lorna Slater said: “By banning some of the most problematic single-use plastic items in Scotland, we are turning our promises into action. Every year, hundreds of millions of single-use plastic are wasted, with many of them littering our beaches, waters and parks. This ban will encourage businesses to make the switch to reusable alternatives, helping to reduce litter and cut emissions.

“Protecting Scotland’s environment is a devolved matter and key decisions like this one should be ours to make. It was wholly unacceptable that it could have been effectively vetoed by the UK government under their UK Internal Market Act, which it imposed on the rest of the UK despite no devolved legislature giving consent to it.

“The Scottish government pressed repeatedly for, and finally secured, an exclusion from the Act for our ban. While we are frustrated that the exclusion will not be in force by 1 June, it will follow soon after, meaning this important ban will be fully effective across Scotland. Regardless of the delay in the exclusion, we’d encourage everyone to ditch these harmful items now.”

Ukraine: Lawyers launch mass legal action seeking $1trn in compensation from Russia

The team of hundreds of lawyers aims to bring “multiple actions in different jurisdictions against different targets”, said Jason McCue, a lawyer based in London who is coordinating the initiative.

The lawyers are aiming to have Russian assets across the world seized and will also pursue private military contractors and business figures in addition to the Russian state itself.

Mr McCue said reparations between states are rarely possible. “Often when it gets to the negotiations, the issue of reparations is put to one side to focus on the sustainability of peace,” he explained.

Investigators have also joined the legal effort, among them investigative journalism group Bellingcat, which has been examining the activities of the Wagner Group and other Russian private military contractors for a number of years.

“We are closely monitoring the activity of Russia’s mercenary units in Ukraine,” said Christo Grozev, Bellingcat’s executive director.

“We believe that a deep dive into the [Wagner Group’s] chain of command and its links to official Russian authorities would not only help bring justice for the victims and their families, but also will bring more public awareness and transparency on how Russia is conducting this war.”

Mr McCue won a case on behalf of victims of the 1998 Omagh bombing.

He said: “The evidence was with the police but nobody was prosecuting because of the peace process. So we did a civil action and we won, and we managed to take houses off two of them.”

He added: “The Omagh case wasn’t about money, it was about proving who did it. This case is about money.

“What we know is that if we don’t do this, people are less likely to get something. This increases the chances.”

New Law Society president Murray Etherington vows to protect legal aid

He said he will also focus on the Law Society’s critical role in regulating the profession following the Scottish government’s proposals to overhaul the country’s legal system.

Mr Etherington believes his experience with Thorntons and his unique legal background will shape how he uses his platform as president.

He said: “I’m humbled to be given the opportunity to become president of the Law Society, and excited for the year ahead. My aim is to provide continuity, and to meet and speak with as many members as I can both in person and remotely. 

“Unlike almost every president who’s preceded me, I’ve never set foot in a courtroom in my life, but aim to fly the flag for chamber practice. We have been underrepresented compared with litigators.” 

A key priority will be ensuring legal aid in Scotland continues to be available for anyone who may need it.

Mr Etherington continued: “You can’t become president of the society without understanding the impact of legal aid and the lack of support for legal aid over many years.

“I hope to use my time as president to ensure the vital funds are protected and be a champion of its impact on society.

“The Law Society does an excellent job regulating solicitors so the public can have confidence and our profession continues to prosper. I’ll be repeating that message loudly and often as the Scottish government continues to consider the future of legal regulation.”

Mr Etherington, who has wanted to be a lawyer since he was in primary six, joined Thorntons in 2013 as partner and has since progressed to become the head of the private client department where he leads a team of 150 colleagues specialising in executries, powers of attorney, wills, trusts, asset protection and inheritance tax planning. 

Colin Graham, chairman, Thorntons Solicitors, said: “We are very proud of Murray’s appointment. He has already held several offices at the Law Society of Scotland and we are confident that he will be a formidable president who supports and promotes the profession as well as the wider legal sector.”

Ross Brown joins Holmes Mackillop Solicitors

Mr Brown, a member of the Society of Estate and Trust Practitioners, has expertise in inheritance tax and business succession planning.

He said on LinkedIn that he was starting the “next chapter of my career with Holmes Mackillop Solicitors, a highly respected firm with a strong reputation for providing top-quality legal services”.

He added: “I am delighted to be joining as a director to head up the firm’s wills, estates and tax offering and to take it to the next level. I am very excited to continue to provide specialist advice and personable service to new and existing clients alike.”

Lord Reed to become patron of Aberdeen Law Project

Lord Reed said: “The Aberdeen Law Project is a remarkable student-led project. Its volunteers provide a vital link between the community and the legal system, by improving access to justice and by working with schools, prisons, the police, women’s aid and other organisations. I am filled with admiration for the passion and dedication of the students involved.”

Anna Robertson, commenting on behalf of the board, said: “To have such an esteemed member of the legal community become a patron of the project is such wonderful news.”

Helena Siebenrock, student director, added: “I know I speak for the whole team when I say how much Lord Reed’s comments about our work and the energy we put into it mean.

“Improving access to justice and doing more for local communities is what we’re passionate about – but passion is only part of the equation and it’s the support of our patrons that makes all the difference and really helps us drive our work forward.”

Canada proposes ban on sale of handguns

Under a proposed law, private ownership of of all short-barrelled firearms would be prohibited.

The law would not ban gun ownership outright but it would make it an offence to buy them. The proposal follows a shooting at a primary school in the US state of Texas in which 21 people were murdered.

The bill makes it impossible to buy, sell, transfer or import handguns anywhere in Canada. “Other than using firearms for sport shooting and hunting, there is no reason anyone in Canada should need guns in their everyday lives,” Mr Trudeau told reporters.

“As we see gun violence continue to rise, it is our duty to keep taking action,” he added.

The bill would also revoke the firearms licences of gun owners who have been involved in domestic violence or criminal harassment.

Canada already requires that all guns be kept locked and unloaded and imposes strict background checks on those wishing to buy them.

Scottish Cycling teams up with Digby Brown

Diane Cooper, partner at Digby Brown, confirmed the deal after meeting with star athletes at the Sir Chris Hoy Velodrome in Glasgow last week.

The announcement comes as the road and track athletes gear up with Team Scotland ahead of the Birmingham 2022 Commonwealth Games in July.

Ms Cooper said: “Our excitement in partnering with Scottish Cycling is borne from our dedication to helping Scottish cyclists.

“Every day we help cyclists affected by road traffic collisions whether it’s knocks, broken bones or serious head injuries and all that matters is injured people get the support they deserve.

“The support Digby Brown provides cyclists and Scottish Cycling members doesn’t just recover compensation for broken bikes or injuries - it safeguards their future and hopefully might even help some regain their confidence to get back on the saddle.”

Nick Rennie, CEO of Scottish Cycling, echoed the need to ensure cyclists have access to recognised specialist legal care.

He added: “The sport is growing and we’re encouraging more people to join Scottish Cycling.

“With that membership there’s lots of benefits and one of those benefits is that in the unlikely event you need it is the five-star legal service you get from Digby Brown so if that unfortunate accident were to happen you’re in safe hands with them.”

Law Society awarded Investors in Diversity accreditation

The National Centre for Diversity has awarded the accreditation following a thorough process over a year, which included an assessment of the Law Society’s commitment to equality, diversity and inclusion (EDI).

The assessment involved an audit of the Law Society’s people-focused policies, colleague surveys and focus group sessions – the outcome highlighted the commitment to EDI and a colleague-friendly working environment from senior leaders, including the board.

Staff reported an overall culture that accommodates personal circumstances – with flexible and hybrid working arrangements valued, along with small adjustments such as not holding meetings during the lunchtime period.

Law Society of Scotland chief executive Diane McGiffen said: “This accreditation shows our commitment to our people, and to playing a leading role on equality and diversity for the Scottish legal profession.

“The Law Society sincerely believes in the standards underpinning this award of fairness, respect, equality, diversity, inclusion and engagement. These are values that benefit employers as much as they benefit the people who work for us and society more widely.

“Our senior leadership team identified Investors in Diversity as a goal last year, well before I joined the Society at the start of 2022. It’s been a long and comprehensive process that has confirmed the strength of our workplace culture, policies and practices.

“We’ve opened ourselves up to this external scrutiny because we want to know if what we are doing works, and how we can improve. There’s much still to do, but we’ve made a clear commitment and, as the accreditation shows, a strong start.”

Event: The Signet Library’s long 18th century

The exhibition runs on 5,6 and 7 July 2022 at the Signet Library, 10 am to 4 pm. Free entry, open to all, no booking required.

Quote of the day

It is not that we cannot think. It is that we are afraid to think. It is so much easier to go with the tide than against it, to shout with the crowd than to stand lonely and suspect in the midst of it. Even some of us who try to escape this hypnotism of the flock do not succeed in thinking independently. We only succeed in getting into other flocks.

Alfred George Gardiner (1920)

And finally… jeu terminé

The country’s culture ministry said the video game sector featured too many English words.

Instead of “streamer”, the phrase “joueur-animateur en direct” will now be used as the changes, issued in the official journal, are binding on government workers.

“Cloud gaming” will be “jeu video en nuage”, while “eSports” will now be translated as “jeu video de competition”.

The Académie Française, the country’s language watchdog, warned in February of a “degradation that must not be seen as inevitable”.