Company involved in producing defective vaginal mesh not ordered to disclose assets for potential damages claim

By Mitchell Skilling

The reclaimer, N, was the pursuer in one of six lead cases against five defenders, including Astora Women’s Health LLC, being managed concurrently by the court. It was argued that it was an abuse of process for the respondent to remain silent on the point, and that the court should make the order to assist the claimants in making an informed decision on whether to proceed against them.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Malcolm and Lord Turnbull. Smith QC appeared for the reclaimer and Elllis QC and McAndrew, advocate, for the respondent.

Special case

It was argued by the reclaimer at first instance that the court’s case management powers extended to giving claimants reassurance, or otherwise, that any decrees they obtained would be enforceable against the defender. The Lord Ordinary concluded that whether to pursue a case to judgment was a matter for the individual pursuers and not for the court, rejecting a subsidiary argument that it would be an abuse of process for an impecunious defender to resist an action.

On appeal, counsel for the pursuer highlighted that Astora had raised the issue by volunteering that it might be unable to meet any decrees. A post-action corporate restructuring had resulted in liabilities for mesh products being transferred from a UK company to Astora, which is based in the USA, thereby creating enforcement difficulties.

It was further argued that the pursuers should not have to wait until the end of the court process to find out whether Astora was “good for the money”, and that for it to remain silent was an abuse of process that the court should not tolerate. While it was acknowledged there was no general right to demand this information, this was an unusual and special case in which an exception should be made.

Counsel for the respondent submitted that insurance was a private matter and opening it to scrutiny would have profound implications for the flow and conduct of litigation. The particular factors relied upon by the reclaimer were not so special or compelling as to justify a departure from the general rule.

Nothing particularly compelling

Delivering the opinion of the court, Lord Malcolm observed: “It is not difficult to understand why a party to a dispute in or headed to court would like to have information as to the other side’s ability by way of insurance or otherwise to meet any liabilities. To date, and subject to the limited exception provided for by the Third Parties (Rights Against Insurers) Act 2010, the general approach has been to respect the privacy of indemnity agreements.”

He went on to say: “In our view no materially different considerations arise when it comes to the case management powers granted in either the mesh claims practice direction or [the court’s general case management powers]. As one would expect they address the management of the action, with the focus on the relevant factual and legal issues.”

Addressing the reclaimer’s access to justice arguments, Lord Malcolm said: “We have little difficulty in rejecting the proposition that the application should be granted in exercise of the court’s inherent power to do what is necessary to discharge its function and to address abuses of the court or its procedures.”

He continued: “While the existence of the power and that it might deal with the conduct of a defender are not in doubt, it is not triggered by reliance on a right to retain private information which is of no assistance to resolution of the matters in dispute. Furthermore any person called as a defender, even if impecunious, is entitled to appear and lodge defences.”

Lord Malcolm concluded: “Counsel recognised that an application of this nature is unusual and contrary to practice. He relied upon the particular factors outlined above as providing special justification. However we see nothing particularly compelling such as might lead to an exception to the general rule. It follows that we need not address the subsidiary submission that the application is unnecessary.”

The appeal was therefore refused, and the case remitted for further procedure.

Crown Office urged to consider prosecution over care home deaths

Home Farm in Portree suffered a Covid outbreak early on in the pandemic. A number of residents died at the home, which was operated by HC One. It was later taken over by NHS Highland.

A spokeswoman for the Crown Office and Procurator Fiscal Service said: “The procurator fiscal has received reports in connection with the deaths of 11 people at the Home Farm Care Home, Skye.

“These reports are being fully considered by the Crown Office and Procurator Fiscal Service and the families will continue to be kept updated in relation to any significant developments.”

A public inquiry into Covid deaths was announced by the Scottish government in December.

Solicitor Pamela Rodgers, of PBW Law, is acting on behalf of a number of families whose relatives died at Home Farm. She said: “The Crown has committed to reviewing all deaths which took place in care homes during the pandemic.

“As the public inquiry is designed to cover the Covid-19 response in general in Scotland and is not specifically a care home inquiry, albeit it will cover matters relevant to care homes, fatal accident inquiries may follow.

“We certainly think that an inquiry for Home Farm is merited because of the issues which arose there.”

Group proceedings case against Celtic FC proceeds

Lord Arthurson yesterday gave permission for 22 former Celtic Boys Club players to make a compensation claim.

Ian Mackay QC, for the men bringing the case, said that the boys club and Celtic FC were closely connected to one another. Celtic denies this claim.

Dean of Faculty, Roddy Dunlop QC, for Celtic, told the judge the case should not be allowed to proceed. He suggested the club would not get a “fair trial” as certain documents evidencing that the two entities were separate were missing.

Lord Arthurson said: “Having considered parties’ position on the supposed permission application, I am satisfied that the relevant criteria in granting this application has been established and I can exercise my discretion to grant the application.

“The common issue in the proceedings is the question of the vicarious liability of the defenders for the actions of these individuals. The court accordingly grants the permission application.”

Seven solicitor advocates introduced to court

Their introduction to court means the new solicitor advocates will now have extended rights of audience to appear in the High Court and the Judicial Committee of the Privy Council.

Two ceremonies are being held to accommodate in-person introductions to court and the second ceremony will take place next week.

The new solicitor advocates are:

• Tommy Allan, Allans
• Brian Bell, Bell Brodie Solicitors
• David Fisken, Murphy, Robb & Sutherland
• Alexandria Kirk, Crown Office and Procurator Fiscal Service
• Gary Miller, Jim Friel Solicitors
• Robert Reid, McGovern Reid Court Lawyers
• Desmond Ziolo, Fitzpatrick & Co

Law Society president, Ken Dalling, invited Lord Brailsford to administer the Declaration of Allegiance to the solicitor advocates during the ceremony.

Mr Dalling said: “It’s always an honour to be involved in these ceremonies, recognising the hard work and commitment that these solicitors have shown to gain extended rights of audience.

“I’m really pleased that we’re able to mark this important occasion in person and in a fitting venue after the disruption of the past two years.

“We at the Society look forward to seeing our new solicitor advocates embark on this next stage of their legal careers, and will also continue to offer them our guidance and support.”

Gavin Booth

Mr Booth, who was head of employment at the firm, had a career spanning three decades.

Donna-Marie Gray, founder of the firm, said: “In addition to fighting for justice on behalf of our clients, Gavin also helped many thousands of people through his own company, The Law At Work. Gavin was a passionate believer in access to justice for working class people and he was quick to call out injustice wherever it lurked.”

She added: “Gavin did not possess a law degree, but this did not stop him and he went on to become an exceptional legal representative. He was well known in the Glasgow Employment Tribunal, as well as other tribunals in England and Wales. He travelled the length and breadth of the country to help people in need.”

He is survived by his wife Anne, daughters Gemma and Nicola and his grandchildren.

Funeral arrangements are as follows: Tuesday 8 March at Castlecary Hotel, 12pm; Eastfield Cemetery and then back to Castlecary Hotel.

Fallon Spencer joins Esson & Aberdein in Glasgow

Ms Spencer, who joins the firm from from McVey & Murricane, will cover work across Scotland from Esson & Aberdein’s new Glasgow office.

She said: “It was going to take an exciting and special proposition for me to consider moving. Esson & Aberdein is an exciting and disruptive business focusing on providing legal services which complement modern day life.”

She added: “Corporate property services is ripe for a new player to come in to offer an improved service which combines technical excellence with technologically and commercially-focused lawyers. It is currently very fragmented with many smaller and less tech-savvy firms offering an often mediocre level of service.”

Rob Aberdein, managing director and founder of Esson & Aberdein’s parent-company, Moray Group, said: “Fallon is exactly the type of lawyer we’ve been bidding to attract from day one and I’m delighted to have her starting with us.

“She is a great communicator and deals with clients on a very human and personal level, while always delivering outstanding results and service.”

Sandra Cassels: Cladding in Scotland

Building Regulations

The fatal Garnock Court tower block fire in 1999 contributed to the building standards system being established. The Building (Scotland) Regulations 2004 provide guidance as to what cladding can be used for any particular building. The Regulations are supplemented by annually updated Building Standards Technical Handbooks which provide guidance on achieving the standards set out in the Regulations.

The key requirement is that buildings are designed to inhibit the spread of fire in cavities, on the external walls and between neighbouring buildings. This is more onerous than its English counterpart which requires, inter alia, that the external walls “adequately resist” the spread of fire.

In addition to these robust requirements, fire resistance standards were introduced in October 2019 which require any Scottish building over 11 metres to have non-combustible cladding. Previously only buildings over 18 metres (the historic reach of firefighting equipment) were required to comply with this standard.

RICS Position

An EWS1 assessment is now required to value and lend against a property with cladding. The EWS1 confirms that a residential building’s cladding has been assessed by a suitable expert and records whether the cladding is combustible and if so, if remedial work is necessary to reduce the fire risk.

RICS issued guidance in March 2021 intended to clarify what properties will require an EWS1. This was likely prompted by the conflicting approaches taken by lenders as to whether properties required an EWS1 or not. From 5th April 2021 an EWS1 is required for:

• A 6+ storey building with cladding/curtain wall glazing and/or balconies stacked vertically above each other and the balustrades, decking or linking is constructed with combustible material.
• A five or six storey building where:
  • At least one quarter of the building elevation is covered in cladding, or
  • ACM, MCM or HPL panels have been installed, or
  • There are balconies meeting the same requirements as above.
• Buildings four or fewer storeys where ACM, MCM or HPL panels are installed.

Research by the Herald on Sunday found that there are at least 974 buildings in Scotland requiring an EWS1. This figure includes over 200 council buildings, including schools, with HPL panels. In addition, 23 tower blocks have combustible ACM panels like those seen at Grenfell.

Government assistance

Many owners have found their properties requiring expensive remedial work with no recourse to insurance policies or against the seller/developer/builder as the cladding was compliant with building regulations at the time of construction. On the face of it, owners will have to bear the cost of identifying and carrying out remedial work. With this in mind, both the UK and Scottish governments announced plans to tackle unsafe cladding. As of January 2021, the Scottish government had received £97.1 million from the UK government to be applied to remedying the cladding problem which it is applying to safety assessments.

Safety assessments

Obtaining an EWS1 can cost around £6,000 and there are few people qualified to provide this service. Accordingly, the Scottish government are providing free safety assessments to properties with external cladding, known as the ‘Single Building Assessment’ (SBA). Inspections commenced in August 2021 on the 25 highest risk buildings.

The SBA comprises an external wall appraisal and broad fire risk assessment of the whole building (not solely focused on cladding). It is intended to provide a realistic view of how much work is required to make buildings safe. It is expected that buildings with safe cladding will be ‘green lighted’ to provide reassurance to owners and occupiers. 

Government guidance

The Scottish government has published an advice note on fire risk posed by cladding in multi-storey residential buildings. Part 1 contains general advice directed towards those responsible for fire safety such as owners and building managers, including a flowchart showing when an assessment or remedial work is required. Part 2 contains technical advice for those carrying out fire safety risk assessments.

What next?

For owners and occupiers of potentially unsafe buildings in Scotland, it is positive that the necessary safety assessments will be funded by the Scottish government however it remains to be seen who will fund remedial works. This is in contrast to the position in England & Wales where the UK government has proposed to pay for the removal and replacement of unsafe cladding in England on high-rise residential buildings which exceed 18 metres. In January 2022, the UK government also set out a new plan for building safety which, amongst other things, extended protection to Leaseholders living in their own flats over 11 metres tall meaning that the Leaseholders will no longer have to cover remediation costs themselves. Under this new plan, developers and cladding companies have been given two months to agree a plan of action to fund remediation costs. Should the industry fail to come up with a solution, the UK government has advised that they will impose one on them.

There have been hints that the Scottish government will look to developers/the construction industry to contribute to the cost of remedial works if these cannot be met by public funds. Given that housebuilders have already indicated that they will reduce construction, particularly affordable housing, due to the cost of building safety repairs it is highly unlikely that they will voluntarily contribute. In the absence of agreement, the Scottish Parliament would need to pass legislation requiring such payment. This is unlikely to be a popular policy and can expect to meet fierce resistance. In addition, such legislation would require to be carefully and narrowly drafted otherwise it is likely to result in costs being passed down the supply chain which will simply cause further economic difficulties for firms already struggling with the cost of materials and lack of labour following Brexit and the pandemic.

Sandra Cassels is a partner at Morton Fraser. This article forms part of Morton Fraser’s annual Litigation in Scotland report.

Former minister sentenced for attempted extortion

David Finlay Macdonald, from Stornoway, pretended to be a female named “Eilidh” and threatened to disclose sensitive information about his victim if she did not send him explicit images of herself.

The 32-year-old used the fake online persona to communicate with his victim between January and December 2010.

He pled guilty to one charge of attempted extortion at Stornoway Sheriff Court in November and was sentenced today.

Procurator Fiscal for Grampian, Highland and Islands Andy Shanks said: “David Macdonald’s deliberate and persistent deceit caused his victim great distress. This prosecution should serve as a warning to others that we take crimes of this nature seriously.

“I would urge anyone who has been the victim of similar offending to come forward and seek support.”

Event: Lady Hale to pay tribute to pioneering legal figures

‘Pioneering Women in the Judiciary with Rt Hon the Baroness Hale of Richmond’ forms part of Dundee Women’s Festival 2022. The event will take place online at 7pm on Wednesday 9 March.

Lady Hale served as the most senior judge in the UK prior to her retirement in January 2020. Before becoming a judge, she worked as an academic lawyer and barrister and was the first woman member of the Law Commission.

Speaking ahead of the event, she said: “Today’s women have a lot to learn from the brave pioneers of the past, not least in the law, so let’s salute and celebrate the first women judges.”

This event is being coordinated by Dundee’s Leverhulme Research Centre for Forensic Science (LRCFS) and the University of Dundee Chaplaincy.

Professor Niamh Nic Daeid, director of LRCFS, said: “We are absolutely delighted that Baroness Hale has agreed to present at this special online event, which promises to be a truly memorable and inspiring evening coinciding with the Dundee Women’s Festival.”

Tickets for the event can be obtained via Eventbrite.

Strathclyde beats Dundee to win this year’s Lord Jones Moot

Held at the University of Dundee last month, the Strathclyde team beat the host university’s Alex Anderson and Saul McGivney in the final.

The Lord Jones Moot Competition is an annual inter-varsity event which is hosted by the University of Dundee Mooting Society. Previously known as the Scottish Inter-varsity Moot, the competition was renamed in 2016 in commemoration of the late Lord Jones, an alumnus of the University of Dundee Law School and honorary president of the mooting society.

Now in its seventh year, the competition follows the Inner Temple style with teams preparing both sides of the problem and being given just 10 minutes’ notice of which side they will advocate on behalf of in each moot.

This year, eight universities in Scotland attended, with a total of 24 competitors taking part from Dundee, Abertay, Aberdeen, St Andrews, Edinburgh, Strathclyde, Stirling and Glasgow.

The competition was sponsored by Shepherd and Wedderburn and judged by academics from each law school, with the final being judged by Lord Malcolm.

The winners will enjoy a day of work experience at Shepherd and Wedderburn’s Edinburgh office.

Event organiser Robyn Mearns, University of Dundee Mooting Society vice-president, said it was “a challenging and rewarding event for all involved”.

She added: “Thank you to everyone for all their hard work and dedication, and congratulations to Strathclyde on such an impressive moot, and a well-deserved win. A special thank you also goes to the University of Dundee staff for making the day possible, as well as to Lady Jones for her attendance on the day.”

Event: Dying to Divorce screening next week

A screening of the film Dying to Divorce – this year’s British entry for the Best International Film at the Oscars – will be held on 7th March at the Mackenzie Building between 6-8pm. It is accredited with 1.5 hours’ CPD.

Filmed over five years, the film takes viewers into the heart of Turkey’s gender-based violence crisis and the recent political events that have severely eroded democratic freedoms. Through intimately shot personal stories, it gives a unique perspective on the struggle to be an independent woman in modern Turkey.

Claire Mitchell QC and Zoe Venditozzi of Witches of Scotland will speak, along with producer Sinead Kirwan, about the criminal justice system and how women are represented.

Register here

Quote of the day

Victory attained by violence is tantamount to a defeat, for it is momentary.

Gandhi

And finally… sex and the city

There were 277 complaints about noisy sex between 19 February 2021 and 9 February 2022, according to analysis by Patch.

Residents complained of “sex mayhem” and pleaded with police to “stop these sex addicts”, The Guardian reports.

The worst afflicted area was Queens with 103 complaints, followed by Manhattan with 66, Brooklyn with 55, the Bronx with 48 and Staten Island with just four.

One complaint reads: “To get a sense of how disruptive they are, I’ve slept through earthquakes and fires in my life … I couldn’t sleep through this.”

Pitching your business to the Dragons  

Looking at the questions the Dragons fire at applicants in the hit TV show Dragons Den, it’s clear that whatever your ambition, whatever your business project, you need to understand the mechanics of your business before anything else - whether you want investment or simply want your business to succeed. Time and again the same questions are asked by the Dragons to those looking for investment. And time and again entrepreneurs and business owners come up short when it comes to the numbers.  

It may or may not surprise you to know that 70% of businesses don’t know their key numbers – P&L, KPIs, cashflow projections, fees in, fees out, gross profit, net profit, wage bill, etc. We also know that many law firms tend to work their numbers out manually on spreadsheets. Incredible really when there are so many tools available to make that part of a lawyer’s life a hell of a lot easier. And would make your pitch to Peter and Deborah a little less tense!

Cringe!  

We’ve all been there. We’ve all sat in front of the telly with bated breath waiting to hear if the person under the spotlight can confidently talk about (DUN, DUN DUN) THE NUMBERS!! You’ve probably cringed as much as we have when you hear applicants stumble and struggle over the financials of their business.   

Picture yourself in a room with the Dragons. Would you be able to hold your own, get the numbers right and get a much firmer footing to secure an investment in your law firm? 

Now picture yourself in a room with your partners.

Pitfalls  

Let’s start by looking at all the pitfalls of not knowing your law firms’ numbers… 

Managing finances can be a challenge. Not having the experience or the time to dedicate to your firms’ finances means that many law firm owners don’t feel in control of them.  

To be blunt, not knowing your firms’ numbers could result in the failure of your business. Finance is really the overall health of your law firm – is your law firm getting its five a day or is there a giant heart attack coming!  

Benefits  

Now, let’s look at all the benefits of having support to manage and know your numbers inside and out… 

Cashroom clients receive many benefits using their Management Accounts service. Budgets, cashflow projections and monthly management accounts are crucial to knowing where you are and predicting where you are going. 

Tracking profit and loss

One of the fundamentals for any business owner - are you making money from your labour? There are of course businesses that exist as not for profit but for most business owners the whole point of the firm is to make a living. Do you know whether you are profitable on a month-to-month basis? This is not merely as simple as having money in the bank to pay the bills, employee wages, and the myriad other costs of business and your system generated reports alone may not be enough for you to determine how profitable the business is. A good practice management system, like Denovo’s CaseLoad, allied with professional assistance from a Cashroom accountant can help you to track profitability on a monthly basis, which neatly leads to… 

Identifying business trends  

Do this regularly! You will never have a proper handle on your finances if you are only looking at them once a year for compliance purposes. Your business might not be at the stage of needing a full-time experience finance professional, but you can set up a monthly meeting with Cashroom’s Management Accounts team to give you that value add and experienced insight into your finances. Do you know how well each work type is doing? Do you have any seasonality within your business? Do you know if your business is growing, treading water, or contracting? Regular and appropriate management information can assist you with understanding your business in additional detail. 

Performance Management  

You can use regular financial analysis and data to view how each individual at your firm is contributing to the success (or otherwise) of your business.

You can create financial targets for billing and utilisation amongst many meaningful metrics and targets to performance manage your employees. If you are trying to grow your business, visible and comprehensible management information will let you know when it is time to invest your hard-earned cash into people, processes or workstreams.  

Future planning  

There will always be business issues that need to be addressed today, but when it comes to your finances, you also need to be able to plan. Will there be a shortage of cash coming down the track from poor credit control, a significant VAT or PAYE liability, an income or corporate tax liability, or from a downturn in business. If you are not planning financially then it is easy to run into difficulty very quickly. The most successful firms always have an eye on the future.  

Seeking investment

Amongst many things businesses have become more aware of from the Covid-19 pandemic, one key issue has been access to finance. Whether that has been freely available government support or additional support from funding providers there is generally a need to demonstrate solid underlying financial performance to even agree a bank overdraft. If the firm is looking for external investment or loan funding to expand or carry out particular projects, it is vital to have up to date financial information. No Dragon would be remotely interested in investing in a business that was unable to demonstrate its current financial performance, let alone the expectations for the future. If you do nothing else, please consider these top tips and ask yourself if you’re happy that you have the necessary financial information to run your firm successfully.   

If you want to learn more about Denovo’s integration with Cashroom and get support to know your numbers inside and out from the most intelligent legal software and service providers in the country, visit denovobi.com/Cashroomintegration , email info@denovobi.com or call us on 0141 331 5290. 

Your trusted partner for title indemnities

We can provide the following:

Online Ordering

Our Stewart Solution application enables you to get a quote for more than 150 title risks in three easy steps. Our technology can reduce time, costs and the risk of errors, streamlining your practice.

Bespoke Solutions

Our knowledgeable Underwriting Team is available for more complex matters or where you need to discuss your transaction.

Dedicated Service

We approach working with our clients as a partnership – responding quickly to your needs, understanding the problems you face and providing prompt solutions to help resolve potential issues.

Contact us to discuss your transaction. We would be pleased to assist you.

Elizabeth Birrell

07940513681

elizabeth.birrell@stewart.com

www.stewartsolution.com

Global Language Services Ltd

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

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

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

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

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

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

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

Call Today on 0141 429 3429 to discuss your Project or email mail@globallanguageservices.co.uk