Feb 01 2010

So last year

Answers to last month’s quiz below. Nobody got more than one question right, so rather than embarrass my loyal readership I am awarding myself the prize in terms of Rule 5.

1. Which published Court of Session opinion was removed from the Scotcourts website at the request of one party because its contents were said to be commercially confidential? Hat-tip to Douglas Macgregor of Brodies for this one, and also for supplying some of the background. The case is BSA International v Irvine 2009 CSOH 77, an opinion of Lord Glennie’s which discusses the duties of expert witnesses and also describes a potentially significant distinction between Scots and English law as to legal professional privilege. Douglas says that, on enquiring of Scottish Courts why the opinion had been removed, he was told ” On occasion opinions can be withdrawn if it is brought to the Court’s attention that it contains confidential information, which could possibly cause prejudice to a party. The opinion has now been redacted by his Lordship…“. It seems, though, that nobody told BAILII, which continued to publish the opinion here. Sometime in January 2010 a copy went back on Scotcourts here, but I haven’t looked to see what the differences are. Douglas, however, points out that the version published at 2009 SLT 1180 seems to be the original version as on BAILII. The interest of this, other than the obvious point that the failure to withdraw the opinion effectively shows the difficulty in concealing information once published on the internet, is that it puts into sharp focus the practice of the Scottish courts in publishing personally confidential, if not commercially sensitive, information relative to litigants and witnesses; see my earlier article on privacy in case reporting. See on this now the Supreme Court’s decision last week in Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1. At the Four Jurisdictions Conference which I’ve been attending this weekend in Ireland, Janys Scott QC gave an interesting paper on this issue, now published on the Murray Stable News and Articles site.

2. Which court considered a much-loved puppy driven, allegedly, to murder by a diet of mucky potato crisps? Well commented on already by the excellent ECHR Blog, this was the European Court of Human Rights, in the case of Kuliś and Różycki v. Poland, decided by the Court on 6 October. Picture of Reksio, the puppy in question, here.

3. In which Commonwealth jurisdiction was it revealed that the Chief Justice’s wife had sued the Chairman of the Bar for libel? Gibraltar: see Hearing on the Report of the Chief Justice of Gibraltar [2009] UKPC 43, which contains many interesting insights into the interactions between the judiciary and the rest of the world; even Michael Forsyth MP/Lord Forsyth, if you remember who he is or was.

4. There’s a statutory provision, amended with effect from this week, by which an order of the High Court of England and Wales may be appealed to a Scottish sheriff; what is it? The Children (Reciprocal Enforcement of Prescribed Orders etc. (England and Wales and Northern Ireland)) (Scotland) Regulations 1996, SI 1996/3267. Sounds odd, but it’s logical; the idea is that supervision orders should transfer as seamlessly as possible from one jurisdiction to another. It works the other way round too. And there are European provisions which permit the decision of a court in another EU jurisdiction to be, although not appealed to a sheriff, effectively reviewed by one. I’ll leave it to the reader to work that one out.

5. The Court of Appeal of an African country, sitting in England, was persuaded by Scottish counsel that British employment legislation had no application in which jurisdiction? It’s changed its name since the case, Francis v Attorney General of St Helena, was decided: formerly known as ‘St Helena and Dependencies’, its new constitution now styles it ‘St Helena, Ascension and Tristan da Cunha’. Hat-tip to Lorna Drummond of the Murray Stable, who was the successful counsel.

6. In which court, a rather shorter distance from Edinburgh, did a solicitor accidentally shoot the judge with a pistol? Longford County Court, in Ireland, in September. The judge was Judge Neilan, on whose behalf the Irish Court Service once issued a press release stating “Judge Neilan is appalled to think that anything he said could cause such offence to so many people, and if it did offend, he would want to apologise – and he does so unreservedly.” The name of the solicitor, who is said to have been under the impression that the air pistol in question was an innocent production in a child welfare hearing, is shrouded in decent obscurity.

7. What happened to the portrait of Lord Cockburn by John Syme which had hung in Parliament House since 1869? It’s back in the possession of the Royal Scottish Academy, which seems to have lent it to the Faculty of Advocates for a temporary exhibition in 1869 and then forgotten about it until it was found hanging under a fire sprinkler a year or so ago. Joanna Soden, Collections Curator at the RSA, comments “The academy is, in fact, very excited to re-discover this painting. Although there had been a reference to this long-term loan it was only this year that we were able to make the connection with the painting to a long-lost work from the academy’s Diploma Collection. Additionally, the work is highly significant because Lord Cockburn was a staunch supporter of the academy in its early and rather difficult years and, with Lord Hope, was able to broker an arrangement whereby the then dissident artists in Edinburgh felt comfortable to join the [Royal] Scottish Academy in 1829 and out of this produce a Constitution and Laws of the Scottish Academy (July 1829). This greatly strengthened the academy as an institution, and thereafter Lord Cockburn continued to assist and advise. In Syme’s painting, Lord Cockburn is holding a document and seal, and we believe this to be the aforementioned Constitution and Laws. By pure coincidence the academy is currently finalizing its new Constitution and Laws and I think the Secretary is exploring the possibility of using an image of this painting as a preface to the final version.” For further information on Lord Cockburn and his relationship with the RSA see Esme Gordon, The Royal Scottish Academy 1826-1976 (Edinburgh: Charles Skilton 1976).

8. Who claimed it was defamatory to describe Stalin as responsible for the Katyn massacre? Showing family loyalty, it was his grandson, who sued the liberal magazine Novaya Gazeta for this article (to get the gist in English, run it through Google Translate). He lost.

9. In which North American jurisdiction have thirty-eight people been charged with offences relative to witchcraft, sorcery, enchantment or conjuration in the last decade? Ontario; this figure emerged after a highly-respected Canadian criminal lawyer had been bamboozled by a young witch with a deck of tarot cards. It seems he believed her claim that she too was a lawyer: the Law Times of Canada reports, ‘he was convinced she had closely studied criminal law and even had some hands-on experience [saying]: “It never occurred to me that the reason she knew the criminal law system in such detail is because she had been a participant in the criminal law system as an accused.” ‘ In Britain, an obvious target for such charges might be those homeopaths who, stepping beyond the ordinary snakeoil salesmanship of their form of sympathetic magic, attempted to put a hex on the House of Commons last November with, apparently, no more success than any of their other products.

10. Which judge had to adjourn a hearing to ensure that no improper observations escaped his or her lips? Let me get this absolutely clear. This was not a Senator of the College of Justice. A number of people suggested this little spat of Aidan O’Neill’s might hold the answer. Wrong; no question of improper observations there and, well, I’m sorry (at least in the Aidanish sense) if anyone should think I thought otherwise. No bad examples here. The judge in question was Hedley J in the English High Court in the case of O & Anor v Orkney Island Council [2009] EWHC 3173, further reported on here.

11. In which case did the Advocate General cite Isaac Asimov (possibly wrongly) as an authority on the law relative to data protection? Trick question perhaps; the case was over a beer. And it wasn’t that Advocate General, but Eleanor Sharpston QC. And the citation has a far longer history, back to Thomas Aquinas at least. See ‘Irresistible force meets immovable object over a Bavarian lager’ at Datonomy for more.

12. Which court sustained the refusal of a bank to replace a banknote allegedly eaten by the claimant’s cat? The Landesgericht in Frankfurt. Unfortunately its decision is, so far as I know, only published in German, but the court held on the authority of Article 3 of a Decision of the European Central Bank1 that a damaged banknote fell to be replaced only if at least 50% of it remained, or the destruction of the remainder could be proved. Rather ickily, the court recorded that the expert evidence was that those parts which were available came from more than one banknote, and suggested, whether seriously or otherwise I cannot guess, “Insoweit wäre es dem Kläger zuzumuten gewesen, die übrigen Banknotenteile in den Exkrementen der Katze sicherzustellen.” Although the note sued for was €500, the value of this suggestion seems questionable.

  1. ECB 2003/04 of 20.03.2003 on the denominations, specifications, reproduction, exchange and withdrawal of euro banknotes, ABlEuNr. L 7816 exchange v. 25.03.2003. [back]
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  1. [...] This post was mentioned on Twitter by The Longs and Canadian Work Permit, ~ Life_is_eARTh ~. ~ Life_is_eARTh ~ said: Jonathan Mitchell QC >> So last year: It's back in the possession of the Royal Scottish Academy, which seems to ha… http://bit.ly/a77q5Y [...]

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