Jonathan Mitchell QC

I’ve said before that Mr Justice Albie Sachs of the South African Constitutional Court is one of the great judges of our time. One of his great writings is his concurring opinion in the case of Laugh It Off Promotions CC v South African Breweries International (Finance) BV, [2005] ZACC 7, in which he posed the question “Does the law have a sense of humour?”. This was an action by a beer distributor in which, to use his words,

a graduate of a course in journalism decided to do battle with a number of corporate giants, calling his enterprise Laugh it Off and arming himself with T-shirts bearing parodied images and words brazenly pilfered from his opponents. One of his victims, South African Breweries [SAB], saw one of its well-known trademarks reproduced on T-shirts for public sale. The words ‘Black Label’ and ‘Carling Beer’, which accompanied the logo were transformed into ‘Black Labour’ and ‘White Guilt’. In smaller lettering the slogans, ‘America’s Lusty Lively Beer’ and ‘Brewed in South Africa’ were converted into ‘Africa’s Lusty Lively Exploitation Since 1652, No Regard Given Worldwide’. SAB did not laugh. Instead it went to the Cape High Court and sought, and obtained, an interdict restraining distribution of the T-shirts.

Continue Reading »

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 Continue Reading »

Gordon v Lynch, 2009 CSOH 116, is a decision of Lord Woolman on quantum in a personal injuries case notable only, so far as this blog is concerned, for its use of a hyperlink: something I have never seen before in a Scottish Courts decision¹. The third paragraph begins “ As a result of the accident, Sean sustained traumatic brain injury.” Continue Reading »

1. When reported on BAILII, of course, hyperlinks are commonly used for citations of earlier authority. [back]

As, surely, everyone reading this knows, Google Street View was launched in Scotland last Thursday. Advertised as covering Edinburgh, Glasgow, Dundee and Aberdeen, it also covers large swathes of west-central and north-east Scotland. Continue Reading »

R v Chambers, [2008] EWCA Crim 2467, is an English Court of Appeal decision (thanks to Ruthie for pointing to it) in which prosecuting counsel instructed by HMRC was eviscerated by the court for failing to do his homework: the prosecution was for a supposed breach of regulations which had effectively been repealed seven years before, as was discovered by chance when an appeal against conviction of this non-crime was about to be refused. The excuse was that, um, neither HMRC nor successive prosecution counsel knew, er, that the OPSI website only publishes subordinate legislation as originally passed, not as amended; so the prosecution was based on the original regulations. There seem to have been many such prosecutions:accused, defence solicitors and counsel, and courts had all guilelessly taken HMRC’s word for it that the regulations founded on were still in force.  Continue Reading »

Yesterday the Faculty of Advocates circulated members to notify them of a discount offer on CaseMap, Windows-only software for analysing and presenting case information. After discount, its suppliers LexisNexis are seeking, for the two year bundle and three year bundle respectively, £1,002.60 or £1,423.98.

Advocates are increasingly using Mac rather than Windows laptops, and this is to point out that there is Mac software with practically all of CaseMap’s functionality (the only significant exception is automated Bates stamping, which few advocates are likely to be doing, and which Acrobat does anyway) at a tiny fraction of the price: $34.95. This is Journler, of which an uncrippled demo copy is available for free download here, Continue Reading »

A few days ago, I noted a problem that arose in part because of the inconsistent practice of courts and tribunals in Scotland in anonymising case reports. Since the decision in Ibrahim, the Lord President has issued a Practice Note, no. 2 of 2007, ‘Anonymising Opinions Published on the Internet‘, which came into force on 20 July 2007. Strangely, this is not published anywhere on the Scottish Courts website, which inexplicably gives a completely different practice note as being no. 2 of 2007, but it is published in the Parliament House Book at C2063. Its purpose is said to be “to advise on the policy of the court on the anonymising of opinions of the Court of Session that are published on the internet“. Continue Reading »

The 2008 edition of the Legal500 was published online last week. Its coverage of the Scottish Bar is here. It is useful, and so far as it goes seems broadly accurate albeit with many glaring omissions. There are several significant defects.

I cannot complain of my own coverage. I am kindly described in one section as ‘an excellent negotiator, willing to explore different ideas – a pragmatist’, and in another I am ‘recommended for judicial review‘.

My first criticism is Legal500′s compartmentalisation of advocates solely by subject area of law. The Overview rightly includes the ‘caveat that Scottish advocates tend to have wider practices than their English counterparts‘. Continue Reading »

Regular visitors to the two Scottish Courts pages which list the most recent opinions issued in the Court of Session and High Court and in the sheriff court (although the latter is inexplicably incomplete and selective) may like to know that RSS feeds are now available for both.

Regrettably they have been set up to give case names only; you don’t get the case summaries provided by the excellent Casecheck service, or even an excerpt of the first few lines as I set up on my old (but still available) weekly update¹. Unlike Casecheck and the House of Lords, there is no e-mail alternative, which I suspect would suit most lawyers better.

There are also RSS feeds available for new Scottish Statutory instruments (and for SSIs or SIs by subject area; Continue Reading »

1. And, yes, I know, the headings on the weekly update page haven’t been rewritten for this site yet. [back]

Cybersquatting, or domain squatting, is “a means of making money by registering and holding, at very low cost, a potentially useful or valuable URL. Nothing is done to develop the URL or to create value, but when a business or entrepreneur comes along who needs the domain name to run their business, the domain-squatter extorts as much money as possible in return for freeing up the URL”¹. It was distressing to read that a respectable Edinburgh couple had not only been accused of such a practice but had received a ‘weighty 128-page legal document‘ from the supposed victim when, as appeared from their own account, “we’ve done nothing wrong.”

I hope no reader of mine would imagine Continue Reading »

1. Quotation taken from this page. [back]