At Thompsons we like to think of ourselves as being nice people but tough lawyers. Earlier this week however I sat through a meeting which would have tested even the toughest of lawyers’ ability not to show their more sensitive side.

The meeting in question involved the bereaved parents who have been embroiled in the shocking baby ash scandal as they took their fight for a public inquiry to the Scottish Parliament. The parents requested a meeting with members of the Parliament’s Health Committee and very bravely told their stories in a bid to secure a commitment from the Government to instigate a public inquiry to help them find out the truth about their precious babies’ ashes.

It was quite simply heartbreaking to be a part of. Not only were the stories themselves heart wrenching, but watching the obvious pain and anguish it took for the parents to share such private details and emotions to illustrate how desperate they are for someone to help them get the truth they so badly need was quite staggering.

As a nice person I struggled to retain my composure watching this obvious display of emotion and at times desperation. But behind the tears and the sadness is a burning passion and steely determination from these parents to ensure no stone is left unturned so they can finally put to rest their demons and mourn their lost babies properly.

As a tough lawyer, I’d be far more cynical as to the success of the meeting. Without getting too party political, the meeting chaired by Labour member Kezia Dugdale MSP consisted almost entirely of Labour politicians. Once the official part of the meeting was over the Health Minister Alex Neil and Conservative leader Ruth Davidson did make a brief appearance. Whether it was the desire to meet the parents and hear their stories or the sizeable press pack in attendance which lured them in is anyone’s guess but I suspect they may have a few splinters up their backsides to say the least!

The case for a public inquiry is utterly unanswerable as far as I’m concerned and the Scottish Government would be wise to act swiftly if it wants to avoid a backlash in the future. These parents are asking for one thing and one thing only, to know what happened to their baby’s ashes. Do we really live in a society where this information should be denied to anyone?

Patrick McGuire, Partner

Police officers, that is the rank and file, do not have contracts of employment as they hold ‘office’. Employees as I understand it, must have contracts of employment to protect both parties. Recent proposed changes to the Police Pension Scheme and the intention of government to repeal Section 2 of their Pension Regulations is causing great concern amongst those who are told that, as they do have contracts and are not employees, can be coerced in to joining a pension scheme which will cost them more, for longer whilst paying less benefit.

Is this legal: can the office of Constable be used to unilaterally change their terms? Could the financial penalties they face be seen as slavery as per Art 4, ECHR? Lord Newby’s comment in the House of Lords regarding the need for consent – with no such consent, can a new scheme be put in place which seriously disadvantages the officers affected? Is the government’s policy of any officer not aged over 40 (or within 10yrs of retiral age) legal or discriminatory.

They have been told to like it or leave the new proposed scheme and therefore, face disadvantage in building up their pot. They have been told by the Scottish Police Federation that the government can impose any age they wish to discriminate who will go on to the new scheme.

I will speak with the Gen Sec. of the Scottish Police Federation Mon 22 April 2013 and so any comment, ideas or cases which will assist in identifying if a challenge can be made would be greatly appreciated.

A couple of weeks ago we were given a stark reminder as to the pivotal role the House of Lords can still play in democracy. Wednesday 6th March 2013 was a key day in British politics, but also one which exposed the danger in politicising fundamental rights through playing party politics with the civil justice system.

The issue before the House of Lords was Clause 62 of the Enterprise and Regulatory Reform Bill. This somewhat radical clause had been introduced by the Coalition without previous consultation, entirely at odds with the clear advice given to the Government by the expert who had been asked to consider the matter. Clause 62 had the potential to be an extremely damaging amendment to the Bill which would have put back the law in relation to health and safety by 150 years, rendering the entire body of health and safety regulations totally useless. For such radical reform to be introduced in the way in which it was, was frankly, unacceptable and viewed by many as an abuse of the legislative process.

Perhaps more worrying still, a leading constitutional QC gave a very clear Opinion that Clause 62 was illegal, would put the UK in breach of its European Union membership obligations and would therefore be reversed in any legal challenge.

We were faced had the situation where the Government was introducing radical legislation which turned back the clock on workers’ rights by over a century, was illegal and would cost the taxpayer large sums of money in this time of austerity being introduced by what, at the most charitable way of putting it, could be described as sleight of hand.  Thankfully, into this perfect storm stepped the House of Lords. It was close, as you would expect whenever the party whip is being used, but the day was one for the integrity of both the legal system and parliamentary process.

It is clear that civil justice is not the place for politicians to play party politics, there are certain basic rights which must transcend party politics and civil justice is one of them.  Thankfully, the House of Lords could see that and I trust that our own Scottish Government will follow suit when it comes to their current consultation on civil justice.

Patrick McGuire, Partner

Scottish legal dissertation regarding the fate of corroboration under Scots Law. If you’d like your law dissertation published, contact us here.

Corroboration in Scots law is a rule which remains a fundamental element in the conviction of a charge ¹. Conversely, following the Carloway Review, the law in Scotland has witnessed a large influx of persons opposing the controversial precept of corroboration ². Thus, those persons remain tenacious in their fight for abolition ³. In the light of Cadder ⁴, the Scottish Government requested Lord Carloway to reassess certain parts of the law of evidence and procedure – the most contentious being, arguably, corroboration ⁵. From the outset, it should be clearly stated that the safeguard ⁶ (corroboration) ‘stems from another age’ ⁷. It is essential to state that the crux of the contentious issue is principally stimulated by the desire to improve the legal system based on ‘quality of evidence’ as opposed to the quantity of it ⁸.

Corroboration is, in its simplest, evidence that ‘strengthens, or confirms, or supports a statement or the testimony of the witness’ ⁹. Before anything substantive is discussed on corroboration – it is essential to state that the requirement has no place in civil law ¹⁰. There is a general rule in [criminal] law that nobody can be convicted of a charge on the evidence of a single witness ¹¹. Hume elucidated this by ratifying that ‘no matter how trivial the offence and how high soever the credit and character of the witness, still our law is averse to rely on his single word. ¹²’ Therefore, in Scotland today, in criminal trials evidence must be corroborated should the accused be convicted ¹³. Two autonomous pieces of evidence is required; these items of evidence need not be in the form of a testimony ¹⁴. Moreover, the ‘crucial’ and ‘essential’ facts must [only] be corroborated ¹⁵. The testimony of a single witness must be supported by another piece of evidence and the accuracy is analysed by a second independent source ¹⁶. These facts are also recognised as facta probanda ¹⁷ and are ‘the elements which need to be established if the accused is to be found guilty of the crime in question’ ¹⁸. It must be noted that the essential facts will fluctuate depending on the case. ¹⁹ In Lockwood ²⁰, the accused was cleared of ‘lewd and libidinous practices’ with a girl who had not yet reached puberty. Because of the fact that the evidence regarding the girl’s age was uttered from her own mouth, the accused was acquitted ²¹. Here, to clarify, the age was a ‘crucial’ fact and due to the lack of corroboration – the conviction was quashed.

An example of corroboration is illustrated in case law ²². In the former case, a mother attempted to claim compensation when her son passed away in an accident concerning a clothes pole. It was essential that she validate that the said pole was badly corroded at the time of said death, and that the authorities must have known this. Inter alia, she lost her case because there was no corroborated evidence of the pole at the time ²³. Additional case law ²⁴ supports this: ‘no person can be convicted of a crime or a statutory offence except where the legislature otherwise directs, unless there is evidence of at least two witnesses implicating the person accused with the commission of the crime or offence with which he is charged’ ²⁵.

Before dealing primarily with the arguments for and against the abolition of corroboration, in criminal trials, the writer deems it necessary that Cadder ²⁶ be touched on. Prior to the Supreme Court judgement in this case, it was apparent that the ‘right to a fair trial’ ²⁷ was safeguarded by requirements such as corroboration ²⁸. However, now, if an individual is detained as per section 14 ²⁹ they have an immediate right to access a solicitor. The decision in Cadder was influenced by decisions in cases such as McLean ³⁰. In this case, a bench of 7 judges held that it was not a violation of Article six; to rely on trial admissions devoid of a solicitor was lawful because of the safeguard of corroboration (being enough to convict) ³¹. Yet, the review of Cadder and the change in the law ³² amounted to Lord Carloway’s requirement to reassess this area ³³. ‘It seems ironic that a forward development in the law like the Cadder case may lead to the removal of what has long been considered one of the essential safeguards in our system.’ ³⁴

The rudimentary stages – post the Carloway Review – saw persons begin to express their disagreement with corroboration. Thus, it is these persons that fuel the argument for abolition. Sheriff Frank Crowe recently opened the SASO ³⁵ debate by submitting that corroboration is a ‘comfort blanket’ that needs to be abolished. He also clarified, it could be argued, that the ‘constituent parts of the Criminal Justice System need to be reconsidered’ ³⁶. Throughout the motion, he was obstinate in his attempt to persuade the audience to vote in favour of abolition. He submitted that the complacency of many others has ‘amounted to the inability of the [Criminal Justice] System meeting the needs’; that abolition is the answer ³⁷. This can be coupled with Lord Carloway’s summarisation of corroboration as ‘archaic’ ³⁸.

Lord Carloway strengthened his argument by submitting that – in solemn procedures – where corroboration is lacking, the judge should not be required to inform the jury of the dangers likely to arise in the absence of it ³⁹. Furthermore, Lord Carloway emphasised one of the most pertinent aspects of his recommendation; submitting that the abolition of corroboration would bring Scots law ‘into line with modern thinking’ ⁴⁰. Therefore, this would put added trust in the jury; it is their responsibility to weigh-out the evidence and thus they should be given the opportunity to fully practice this requirement ⁴¹.

One protruding factor, arising in light of Lord Carloway’s review, was that there was an understanding that Scotland had a lower miscarriage of justice rate – his Lordship submitted that this was, in fact, incorrect ⁴². Thus, essentially, corroboration does not confine this rate and Lord Carloway argued that corroboration actually produces miscarriage of justice ⁴³. It is submitted that the reason for this is because ‘corroboration prevents cases… from being prosecuted’ ⁴⁴. This is due to the fact that where corroboration is obtainable, the police will do very little to find it and the crown will subsequently not lead it ⁴⁵.

Common law ⁴⁶ also raises arguments in favour of abolition. This case involved an encounter re the introduction of an absent complainer’s statement with regards to statutory provisions ⁴⁷.  The judge ⁴⁸ in this case submitted that ‘I cannot see what worthwhile safeguard the principle of corroboration provides if the primary evidence sought to be corroborated is per se unfair to the accused.’ Sheriff Frank Crowe argued that the Scottish criminal justice system has lacked ‘incremental development’ ⁴⁹. Therefore, the abolition of corroboration would require the modernisation of many other areas of the justice system and would allow for an overall assessment ⁵⁰.

Rape Crisis Scotland (RCS) highlighted interesting points regarding the abolition of corroboration ⁵¹. They emphasised their submission regarding reasonable convictions. RCS claimed that the removal of corroboration would allow the Crown to prosecute cases where there is a lack of the requirement ⁵². Moreover – they submitted that this would give them the opportunity to bring prosecutions where they consider there to be an adequate quality of evidence to convict, without the requirement of corroboration ⁵³.

At this point, RCS began to raise their submissions regarding their concerns about abolition. They clarified the prospective impact on conviction rates; ratifying that apropos to England and Wales, where they do not require corroboration, the conviction rate re rape runs near parallel to the rates in Scotland ⁵⁴. They elucidated on the point that abolishing corroboration could attract more cases going to court but could consequently raise more not proven verdicts ⁵⁵. Nevertheless, it was submitted by RCS – that should corroboration be abolished – the Crown Office would still be required to put in place a subsequent test ⁵⁶. The reasons for this test are obvious: it would need to regulate whether or not there would be a ‘reasonable’ chance of conviction, ‘in individual cases’, based on the worthiness of the evidence obtainable ⁵⁷.

With regards to the arguments against abolition – there are many, also. The Faculty of Advocates produced a memorandum ⁵⁸ in response to the Carloway Review ⁵⁹. It was extremely clear that, throughout this report, the Faculty put utmost emphasis on their belief that the corroboration debate ‘cannot take place in isolation’ ⁶⁰. However, it was also elucidated that there is a need for debate on the issue ⁶¹. The Faculty also stressed the importance of convening a Royal Commission ⁶². This was coupled with their recommendation of getting the Scottish Law Commission to look at the matters in greater depth ⁶³.

Derek Ogg QC submitted that: should the requirement for corroboration be eradicated; it would be the ‘citizen against the power of the state’ ⁶⁴. This was combined with his submission that abolition would resort to the outcome of the case dependant on the decision of the prosecutor – not the judge ⁶⁵. Another point made by Ogg was that ‘from the minute the finger is pointed, there is devastation’ ⁶⁶. The crux of this point deals with the idea that when the accused is tried: his family, good name and presumption of innocence are all put in jeopardy. The climactic nature of this, according to Ogg, begins to emphasise the sheer level of devastation involved ⁶⁷. Thus, the arguments opposing the abolition of corroboration are just as prevalent as those for abolition ⁶⁸.

The reader may benefit from an anecdotal approach to summarise some of the most conspicuous arguments arising by those opposing abolition. Touching on the matter of isolation – Brian McConnachie QC used an illustration to the Scottish Parliament’s Justice Committee ⁶⁹. This illustration was surrounding the false allegations ⁷⁰ about conviction rates re sexual offences. The fallacy ⁷¹ that abolishing corroboration would have a positive effect on conviction rates was scrutinised by the QC. McConnachie submitted to the Committee that there has been a lack of statistical study to support these generalisations ⁷². This argument is supported by James Chalmers – the experience of the jurisdictions practicing without corroboration proposes that abolishing will make little difference to the conviction rates re sexual offences ⁷³.  McConnachie reiterated the blatant arguments of those against abolition; stating that a lack of corroboration would amount to the reliance on a single witness. This was also coupled, however, with the understanding of the inevitable increase in pressure that the Crown and Procurator Fiscal would be subject to ⁷⁴. McConnachie, indirectly through his speech, made clear the imperativeness of not dealing with the ‘abolition’ of corroboration on, essentially, a whim ⁷⁵.

It is evident in light of both sides of the debate that the requirement for corroboration has gone from being a ‘cornerstone’ ⁷⁶ to ‘an antiquated technical requirement’ ⁷⁷, in very little time.

All in all, the arguments for and against the abolition of corroboration in Scots law are clear. Those in favour of abolishing the ‘archaic’ corroboration submit that: corroboration itself is hindering justice ⁷⁸. The principle of ‘beyond reasonable doubt’ is believed to be sufficient in safeguarding (and one that will remain ⁷⁹); thus not hindering justice ⁸⁰. It is evident that these persons submit that it is the juries’ responsibility to decide upon the evidence presented to them, and therefore corroboration should be abolished ⁸¹. The arguments arising re miscarriage of justice rates are prevalent throughout the debate as a whole. Taking these into account – it is fully submitted, by those persons, that the requirement for corroboration in Scots law of evidence and procedure should be abolished. Yet, the arguments opposing abolition are as prominent and come with the same weight. This can be coupled with the fact that abolition would amount to an unfair citizen to state ratio – which is argued predominantly by the Senior Advocate Depute ⁸². The sheer devastation that abolition would bring, taken with the added pressure that would essentially constrain the COPF – are ultimate arguments for those opposing abolition, too ⁸³. Without doubt, the fact that these persons feel that the debate cannot be taken in isolation is arguably one of utmost importance ⁸⁴. Therefore, many agree that removing corroboration is not a panacea which has the capacity to deal with the concerns arising from the ‘effectiveness’ of the criminal justice system.

Guest post regarding gay marriage in Scotland.

The Scottish Parliament plans that churches and belief bodies would need to “opt in” to perform same-sex marriages, meaning that those fundamentally opposed in principal would not face possible law suits.

The Church of Scotland and Roman Catholic Church have already expressed their rejection of the idea of gay marriage and have welcomed the news that Scottish ministers are insisting no part of any religious community would be forced to hold same-sex weddings in their places of worship.

The Scottish government’s consultation on the draft Marriage and Civil Partnership Bill continues to run until 20 March but the recent passing of the Act in Westminster is putting pressure on the process to come to a similar conclusion.

With the Church of England and Church in Wales being banned in law from offering same-sex marriages and other organisations having the option to ‘opt in’ to the practice of holding ceremonies, the Scottish government is expected to work with UK ministers to protect celebrants from legal action if they refuse to take part or speak out against same-sex ceremonies.

It is expected that popular law firms such as Co-Operative Legal Services will be inundated with enquiries as the Draft Bill continues its path to completion.

The plans currently under consultation have cross-party support in Scotland and the SNP in particular wants to avoid public or political backlashes of any kind in the run up to the Independence Referendum. Scottish Health Secretary Alex Neil simply said: “We are introducing same-sex marriage in Scotland because it is the right thing to do.”

Mr Neil continued: “We are striving to create a Scotland that is free, tolerant and fair and I am pleased to say there is support across the chamber for this significant step.”

As it stands the Draft Bill will introduce measures such as allowing civil marriage ceremonies to take place anywhere other than religious premises and establishing belief ceremonies, such as humanist ceremonies, to stand alongside religious and civil events.

The cross party support for the ongoing consultations includes the Scottish Liberal Democrats, The Greens, the Scottish Labour Party and even The Conservatives, whose Ruth Davidson said: “I support the principle of equal marriage, but with the important proviso that religious organisations which do not wish to carry out the ceremony are not compelled to do so.”

The process of consultation around the Draft Bill continues against the background of a previous Scottish government consultation which received 77,508 replies, a record response. It is expected that gay marriage ceremonies could begin at the start of next year.

Meeting with a solicitor for the first time can be overwhelming, particularly if you’re dealing with a sensitive case and require the services of a family solicitor. Putney to Glasgow, Manchester to Cardiff – wherever you are, it’ll always be a bit scary. However it doesn’t have to be, as long as you prepare properly. Yes, the situation might be upsetting (often, family solicitors deal with custody or divorce cases), but getting your head straight beforehand can make the meeting go smoothly.

So, what should you do to prepare for your first meeting with your family solicitor?

Gather any important information
Any information that you think will be pertinent to your case should be gathered and kept in a file or folder. This can anything from the timeline of events throughout a marriage, or documents relating to any previous custody arrangements that were drawn up. Whatever it is, it could help build your case and fill your solicitor in on the situation’s finer details, so don’t be scared to take it with you. Do draw up a list of questions you have for the solicitor too, as these might escape your mind when you actually get there.

Consider if you need any support
If you’re really scared or worried about the appointment, don’t hesitate in asking a friend or family member to attend it with you. They would probably much rather that you asked them than sat worrying yourself. What’s more, they may remember the details of the meeting better than you, as you could be stressed or anxious. They could always takes for you, particularly when it comes to the advice issued by your solicitor. Either way, just remember your loved ones are there to give you support – so don’t be afraid to ask for it.

Prepare yourself to open up
There’s no use heading to a solicitor for help then not sharing all of the intimate details of your situation. Your solicitor is not there to judge you. He/she wants to help and in order to that, needs to know all the information you have. Everything you say is kept entirely confidential; between you and your solicitor, plus any of your friends or family members that are present. Likewise though, they are not there to counsel you in an emotional sense – so don’t go in thinking they’ll be able to offer personal advice. They are likely to be sympathetic, but ultimately their focus is on the legal case.

Sort your finances
Solicitors don’t come cheap – but they do provide a very worthwhile, necessary service. However it’s still wise to sort your finances out before you attend the meeting. They aren’t going to provide their services for free, so you should know how you’re going to pay for the bill and where that money is coming from. You should also prepare an extra pot of money for expenses you hadn’t thought of. For example, some solicitors will charge you for them writing a letter and sending it, or for talking to you on the phone for a half hour. Do your sums before you get there and you’ll be fully prepared for any related fees.

There has been much publicity regarding the recent agreement between the banks and the Financial Services Authority (FSA) regarding the mis-selling of interest rate swap agreements to SMEs. In an effort to protect their image and avoid another claims management company boom, the banks allegedly admitted their failings in the selling of these agreements to the FSA early into the thematic review. They then brokered a deal with the FSA whereby each bank would appoint its’ own independent reviewer to review each sale to customers who do not qualify as ‘sophisticated’ customers.

Much has been made of the inadequacy of a system whereby ‘independent’ reviewers, appointed by the bank itself, will provide redress for the consumer. Many of these agreements have forced small businesses to the verge of insolvency. I don’t propose to rehash all of the circumstances surrounding these agreements and their inherent flaws for SMEs, the parliamentary committee which now exceeds 50 members and campaign group Bully Banks will tell you all you need to know.

I currently act for several clients who have been sold these toxic agreements and are seeking redress. As the recent case of Grant Estates v RBS has effectively closed the doors of court to even the smallest business who implicitly trusted their bank, the independent review is what we’re left with, notwithstanding a few litigations which may succeed on other failings in the contract. In any event, this is not a moan and I have prepared all of my clients for a protracted battle in relation to these agreements.

I am generally not one to complain and have never written anything for public consumption. Iain Mitchell QC has adequately pointed out the inadequacies with the independent review process in relation to redress for the consumer. What has not been discussed (as far as I can tell) in any public forum is that the banks have given themselves licence to breach FSA complaint handling rules (DISP) by agreeing to the review.

Being forced to take an interest rate swap agreement

One of my clients was forced to take a rate swap agreement with a leading lender. A very simple proposition by the bank – no swap, no funding. As his business required the funding, he was left with no choice but to accept the swap. Over the years that the swap has been running his payments have risen ten-fold. My client consulted me and I duly sent a complaint to the lender. As agreed with the FSA, said lender are required to prioritise ‘distress’ cases. It was made clear to the lender that this complaint relates to a distress case as my client’s business has suffered over the past few years, in no small part due to the swap. The lender was well aware of the circumstances given that their business rescue team has stepped in. Interestingly the lender’s response was that all of their sales of these agreements are being reviewed and only after the independent reviewer has completed their review of all cases will they contact consumers potentially mis-sold these agreements. In accordance with DISP 1.6.2 a lender has 8 weeks to provide a consumer with a final response to their complaint. By agreeing with the FSA to undertake an ‘independent’ review, they have effectively bought themselves as much time as is required to undertake the review, bar those consumers that are able to pursue their complaint through the Financial Ombudsman Service (FOS). As FOS jurisdiction is limited to businesses with turnover of less than 2million Euros and less than 10 staff, many consumers are left without this option.

Having suffered irreparable damage to their reputations, the banks, with the assistance of the British Banker’s Association have begun a quiet charm offensive. This deal brokered with the FSA has very cleverly allowed the banks to appear proactive and avoid another PPI-like media storm. What nobody is saying is that the FSA have allowed this to happen, and even worse, have apparently allowed the DISP rules to be contracted out of. Assuming the independent reviews are not completed by the end of 2013 as several practitioners in this area have suggested, the banks have allowed themselves in excess of a year to deal with complaints that they are legislatively bound to resolve within 8 weeks. How many distressed SMEs will be left to fight the fight when that happens? It appears the banks have learned from their many failings of the past few years. Admit your mistakes and tell your regulator that you will make it right and they’ll give you as long as you like to ‘address’ the failings. We’ve all seen how well self regulation has worked and this is simply another example waiting to become a scandal.

In January 2013 the FSA’s regulatory arm will be transferred to the Bank of England and renamed the Financial Conduct Authority (FCA). This is intended to give the regulatory side of the FSA’s function more teeth and not merely be a rebranding exercise. In my opinion, looking at the deal that the banks have agreed with the FSA and the lack of progress that has taken place in the independent reviews of rate swaps would be a good starting project for the FCA.

About the author

Paul Fairbridge is a solicitor with CBC Solicitors in Glasgow and Rutherglen in Scotland and is an expert with interest rate swaps mis-selling and other financial claims litigation. Connect with Paul Fairbridge on LinkedIn here.

On the 1st of November, the Scottish Government published their response to the Consultation on Bankruptcy Law Reform to outline a range of reforms they plan to take forward in a Bill for Parliament.

So what does this mean for insolvency practitioners and for the consumers looking to become insolvent and clear their debts?

The proposed changes to Protected Trust Deeds

There are a couple of important changes to trust deeds in this reform:

1. The minimum term will likely be set at 4 years (and this goes for bankruptcy/sequestration too)
2. Highly likely that a minimum dividend of 30p-50p in the £1 will be set for creditors
3. A new minimum debt level will be set at £10,000
4. A notice in the Edinburgh Gazette will no longer be required
5. The Accountant in Bankruptcy (AIB) will take a more proactive role in supervising/directing trustees

There are also a few changes which might impact both sequestration and trust deeds:

• A single finance tool used for assessment of contributions an individual makes
• A requirement to get actual money advise first, before entering insolvency
• Financial education might be a requirement for some debtors before they are eligible for discharge
• Exclusion of some debts from discharge if they are incurred in the 12-weeks prior to granting of a trust deed/application for bankruptcy
• 6 month payment holidays available for certain income shocks (redundancy/sickness/maternity etc)

So what does this mean?

Well, first of all, the minimum dividend of 30p-50p will make trust deeds far less feasible for both the IP and the debtor.
Many IP’s will look to offer sequestration as an alternative and this will consequently reduce the choices of the debtor.

For the debtor, a trust deed with this minimum dividend would extend for additional years. The vast majority of debtors would choose 4-year bankruptcy/sequestration over a 7 year trust deed – because they’d be debt free more quickly.

The move looks likely to suppress trust deeds quite harshly and some might argue that is is a good thing. They are many firms charging fees that border on extortionate and this will make in unfeasible for them to continue this unscrupulous practice.

While it isn’t imminent yet, delaying proceedings could lead to a longer repayment term that the current standard of three years.

A skeptic might say that the Accountant in Bankruptcy (AIB) was pushing to increase bankruptcy and reduce trust deeds because they make more money on the former, but it does seem strange that the government is dictating a minimum payment to creditors – especially when most creditors who responsed to the consultation did not think it was necessary.

It’s interesting that in Trust Deeds, the AIB said they would change the set £250 supervision fee to £100 per year for every year the Trust Deed was “live”.

Historically this was for 3 years and thus, they could be seen to have raised their fees by £50. Now though, they are extending the minimum period to 4 years, and are therefore charging a minimum of £400 for the supervision – £150 more than they were previously.

They also charge 17.5% of a trustees fees as well, which extends to that four year minimum period as well.

These changes are planned for 2013/14 and will only affect cases signed after the law comes into effect.

About the author:

Ian Nuttall is an online editor and finance writer at Debt Help Scotland, providing free trust deed advice for residents in Scotland. He enjoys helping others, investing in new business ideas and discovering new ways to solve problems.

Terminating an unsatisfactory employee is always an affair wrought with emotion and unhappiness. Even if there is just cause to let the employee go, or if there is reason to believe the employee is just as eager to part ways as the employer, there is natural suspicion and hard feelings immediately – and often long before the final meeting. Employees may feel they are being unfairly let go, and employers are always worried about unfair termination claims, and these combine into a too-frequently acrimonious environment.

That labour laws need some revision is generally agreed upon; it was disappointing to learn that the government had tabled an amendment to the Enterprise and Regulatory Reform Bill recently that would have addressed the unfortunate situation regarding severance offers – it would have been a giant step in the correct direction for Scots Labour law.

Currently, employers are caught in a Catch-22: They may sincerely desire to treat an employee fairly and make an offer of severance in an attempt to terminate the employee without rancour and perhaps offer them what they feel is a suitable reward for loyal service in the past. However, simply by making such an offer and explaining to an employee the reason behind their intended dismissal, under current law they will have undermined their implied duty to maintain the employee’s trust and confidence. In effect, any attempt by the employer to be up-front and reasonable immediately gives the employee cause to file an unfair termination claim, citing the implied duty.

On its merits almost everyone can agree that this is an unreasonable situation. The proposed amendment was designed to get everyone into a more reasonable place by allowing for a larger proportion of privately negotiated severances. In many cases an employee may be amenable to termination, or acknowledge that their performance was unsatisfactory or that other issues make their termination reasonable. If employers were comfortable in making fair severance offers and explaining their reasons, a large proportion of unfair termination claims might very well disappear immediately.

In the current situation, merely broaching the subject of a fair severance settlement or raising the issue of unsatisfactory performance leaves the employer vulnerable to a claim. Even reasonable employees who have no other reason to lay a claim against their employer may be persuaded to do so in hopes of gaining a settlement larger than the severance, or perhaps in retaining their employment. This is an intolerable situation leading many employers to simply terminate their employees without making any attempt to explain or negotiate, and spurring those employees to clog the courts with termination claims. Since employers assume any attempt at a dialogue with employees will result in a claim in any event, there is little motivation to attempt a negotiated exit.

The proposed amendment would have addressed this problem by making such conversation partially protected, making such overtures inappropriate as the basis for an unfair termination claim – meaning that employers could not be held to have violated their implied duty to maintain the employee’s trust and confidence simply by detailing unsatisfactory performance and offering a severance settlement. The amendment made it clear however that such conversations could still be used as evidence in a claim if it was appropriate to do so. This would allow employers to give employees clear facts concerning the reasons behind their termination without fear of such communication serving by itself as cause for a claim, while employees who are in fact unfairly terminated could still use such a conversation as evidence if necessary. There would also be a consideration for “improper behaviour” during such a conversation which would remove its protected status, though what, exactly, would constitute “improper behaviour” is vague and needs to be improved in the language of the amendment.

This sort of revision is necessary and long overdue. The hope is that it is reintroduced soon and, with slight improvements, passed quickly. Both employers and employees will no doubt welcome the ability to safely and calmly negotiate future severances.

Mark Darcey is the owner and director of Darcey Quigley, an independently owned company specalialising in debt recovery in Scotland and across the UK

A Bill to reform the criminal liability of Scottish partnerships took a step closer to becoming law earlier this month, when it began its Second Reading in the House of Lords.

The Partnerships (Prosecution) (Scotland) Bill is designed to close a legal loophole that allows partnerships to evade prosecution by the simple process of dissolving the partnership.

Legal loophole

The loophole came to light following the death of 14 elderly residents in a fire at the Rosepark nursing home in Lanarkshire in 2004. The Crown Office made three separate attempts to prosecute those alleged to be responsible but the case failed each time because the partnership had been dissolved after the alleged crimes had been committed.

It was the first time that a dissolved partnership had ever been prosecuted in Scotland.

Reform required

The Scottish Law Commission had already been working with the Law Commission on a comprehensive reform of the law of partnership, but was asked to come up with additional proposals to close this specific loophole.

It published a report and draft Bill in December last year, recommending that it should remain competent to prosecute a partnership – and its culpable members – for a period of five years following its dissolution.

Those proposals have now been taken forward to Westminster.

The Bill

The Bill received its First Reading in the House of Lords on 5^th November and detailed scrutiny began on 4^th December.

It is the first wholly Scottish Bill to be introduced at Westminster since 2004, making it the third since devolution to have Scotland-only extent.

“I am very pleased the Bill has arrived at this important stage. It is the product of much collaborative effort between the UK Government and the Scottish Law Commission. We have also worked closely with the Crown Office who support the Bill,” said the Advocate General the Lord Wallace of Tankerness QC.

“The Rosepark fire was a terrible tragedy, compounded by the fact prosecutors were unable to find a legal basis to bring those responsible for the deaths of 14 vulnerable people to justice,” he added. “Closing this loophole is important and it will ensure no one will have to endure the same frustrations as the bereaved families in this case in future. Simply dissolving a partnership will no longer put you beyond prosecution.”

Contact Lawford Kidd’s personal injury lawyers in Edinburgh, Scotland for specialist legal advice.

Further information on the criminal liability of Scottish partnerships:-

http://www.scotlandoffice.gov.uk/scotlandoffice/18064.html

http://www.bbc.co.uk/news/uk-scotland-17740645

http://www.scotlawcom.gov.uk/news/prosecuting-partnerships-and-partners/

http://www.scotlawcom.gov.uk/news/partnerships-criminal-liability/

http://www.scotlandoffice.gov.uk/scotlandoffice/16865.html

http://services.parliament.uk/bills/2012-13/partnershipsprosecutionscotland.html

http://www.scotlawcom.gov.uk/news/partnerships-prosecution-scotland-bill/

http://www.copfs.gov.uk/news/releases/2008/07/rosepark-decision