Aberdeen Law Project Lecture 2015

Another year, another chance for me to bask in the reflected glory of the achievements of law students at the University of Aberdeen who volunteer at the Aberdeen Law Project.

One such achievement was organising a well-attended lecture with a prestigious guest, the Lord Advocate Frank Mulholland QC. He took time out of his busy schedule to deliver the Annual Lecture, following on from Lord Hope’s lecture in 2014.

I was live-tweeting the event, as was the @abdnlawproject Twitter account.

A Storify of the event can be found here.

Highland Titles Scam

The title for this blog is modelled on the website highlandtitlesscam.com.

Despite the url, it is a website that defends the business model and practice of a company called Highland Titles Limited.

Earlier this week, it found itself in a bit of a Twitter-storm. This storm, Storified here, involved a number of Scots law qualified individuals, including me.

Highland Titles was moved to reply [EDIT on 18 February 2015: the original reply has been taken down, so the link is now to a snapshot of the page as it appeared on 12 Feb 2015].

Although there is no reference to my Storify in that page, I suspect someone involved with that website has read it. Here is a comparison of extracts of the two pieces of writing.

As an academic, if I had two students submitting work that was this similar I would be asking to speak to them both about plagiarism. Also as an academic, I would be a little disappointed in the legal content of one of the pieces of writing, although I have to admit it is a masterful piece of selective prose.

Another masterful piece of carefully worded prose is provided by the Scots law firm J&H Mitchell, whose “Scottish Legal Advice” is linked to by Highland Titles. Although meticulously worded, it does nothing to counter the arguments Twitter user @loveandgarbage was probing away with (supported by the most recent edition of “Scottish Land Law” by Gordon and Wortley).

Since I published the Storify, literally thousands of people have read it. No-one has convinced me my line of thinking is incorrect.

As a user of social media who advertises himself as an academic lawyer, it is fair to say I have a number of legally minded followers. Not one of them has challenged me. In fact, my thoughts have been shared with gusto by other lawyers, within and outwith Scotland.

And this is not a new topic of conversation. I am not the first person to opine on this matter.

Here is a letter to a newspaper from Dr. Craig Anderson, of Robert Gordon University, explaining the law in clear and simple terms.

Here is an article from Registers of Scotland which appears in the Journal of the Law Society of Scotland. (It will be recalled that the Keeper of the Registers of Scotland is a very important woman in the grand scheme of Scots property law.)

Here is an article co-authored by my colleague Dr Douglas Bain (with Catherine Bury of Ledingham Chalmers) which appears in the Aberdeen Student Law Review.

Paragraph 12.83 of the Scottish Law Commission’s Report (2010, number 222) on Land Registration is also in point where (in relation to the earlier legislation) it is noted.

Section 4(2)(b) of the 1979 Act forbids the Keeper to accept souvenir plots for registration in the Land Register…We have seen it suggested that the non-registrability of souvenir plots means that ownership in them passes by simple contract. That is not so (emphasis added).

Choose your own friends here. I have made my choice and I am happy with the company I keep.

So what happens now?

In the vernacular, it is time for someone to shit or get off the pot.

In property law terms, someone who has been made “owner” by Highland Titles could try to register a plot of land with the Keeper. Such a person is bound to fail in that quest owing to section 22 of the Land Registration etc. (Scotland) Act 2012.

Alternatively, someone who has been made “owner” by Highland Titles could raise an action called a declarator at the relevant Sheriff Court, to establish who the owner of the land is. If that was to happen, I would very much enjoy watching Highland Titles’ argument develop in court (if indeed Highland Titles got involved). I would bring the popcorn.

Another possibility would be if someone were to occupy the land in question, with a view to obtaining ownership by possessing the land for a certain period of time and registering a deed with the Keeper (if she accepted that deed, such acceptance being by no means guaranteed) (this process is known as positive presciption in Scots law; in English law and similar legal systems this is called “adverse possession”). The owner of the land is, as you would expect, entitled to take steps to stop this happening. Which “owner” would step forward to object here? (Nota bene: I am not advocating that anyone actually go to Glencoe, or wherever the land actually is, to do this. I am simply flushing out a perfectly competent Scots law device that could operate.)

Stepping away from Scots property law, but staying within private law, is defamation relevant here? If Highland Titles is actually bothered by what is going on, a defamation action could be raised against the “Twitter trolls”. (For my part, I am comfortable with everything I have written on my blog, on Storify or on social media, even when I told Highland Titles to “fuck right off”.)

Whilst all of this has provided a bit of entertainment and hopefully a bit of education, I think that is probably enough from me on the matter, but I will note a couple of side issues before I go. First, two people contacted me to highlight the land management practices undertaken by Highland Titles: see here and here. These links are offered without comment. A further side issue relates to titles, and I do not mean title to land here. I have some new social media contacts from the world of Scottish clans, who found the whole debate interesting. I suspect they have a view on the model of lordship offered by Highland Titles.

Finally, does this blog make me some kind of über-troll? Only if trolling is now taken to mean having a knowledge of Scots law and a wish for it to be applied properly.

The best Twitter exchange about souvenir plots in Scots law you will ever read

Today’s lesson in Scots land law is provided by loveandgarbage, some legally minded/interested folks on Twitter, a Channel Islands company called Highland Titles and me. I offer this Storify for your enjoyment.

Law theory test

I started blogging in 2012. I have now cleared 100 posts and a total of 100,000 words. (Yes, I probably could have completed a thesis instead, but there we go.)

Before having my own WordPress forum, I had to find other platforms for pontification. Somewhat by chance, I rediscovered a letter I sent to the (English) Law Society Gazette way back in 2011. Happily, it is still hosted by the Gazette’s website. Also happily, it still seems to contain some relevant content on the link between practice and academia. Rather than let the letter get lost in the mists of time and the internet, it is extracted below.

I read Jonathan Goldsmith’s recent column with more than a passing interest.

The perspective with which I read it was the exact opposite of the German lawyer to whom he alludes, in that I have just moved from private practice into academia.

This I have done with no more academic clout than a law degree and the Scottish equivalent of the LPC.

I suspect this is another thing which would surprise the inquisitive German, who will be au fait with the rigid standards of the German academy.

My career choice also surprised a number of people in the UK, but they were surprised for pragmatic reasons which chime with Mr Goldsmith’s piece.

The standard reaction was a mixture of bemusement and polite encouragement, garnished with a barely suppressed urge to tell me how much damage I was doing to my earnings potential – many did not suppress the urge at all.

Having made the switch, I hope to play my part in a vibrant law school that in turn plays a part in producing the graduates that will be the lifeblood of the profession in years to come.

Like many other law schools, my own draws from a variety of experiences and cultures.

I hope my experiences of practising Scots and English law and an eight-month spell on secondment to industry will add a little bit of business acumen and pragmatism to that mix.

With that in mind, it strikes me as churlish to think that there may be no place for the German post-doc holder at a City firm.

Sure, they might not have had the ‘at the coalface’, ‘character-building’ experience of preparing 74 intimations for a composite debenture at three in the morning to meet an unrealistic deadline, but they will have other experiences and skills that can be used.

One English client once paid the great compliment that having a Scots lawyer involved in a deal somehow brought solidity. Why that would be I have no idea; a certain je ne sais quoi?

We already have a broad church of ideas in the island chain that runs from St Helier to Lerwick. Broadening the ideas the church draws from may not be a bad thing.

There are many other important issues raised by Mr Goldsmith’s column, but I will restrict myself to one further observation.

In a recession, the holder of a simple law degree may feel a few extra letters post-surname is a benefit to career prospects, but is this really the case?

If it is not, it is as much a concern for universities as it is for the profession. Practice without theory is dangerous; theory without practice is dead.

One year, all clear

29 January 2014.

I wake up early. I didn’t sleep well, what with being in a strange (hospital) bed and sharing a room with others, not to mention the expectation of today’s events. Perhaps I stole a few hours’ sleep.

I am not that hungry, which is for the best, as I am not allowed any breakfast. My routine for today may be a bit messed up, but it has been minutely planned nonetheless.

First, I need to get myself ready, by which I mean washed and gowned. Despite being in a hospital I back myself to perform these tasks independently, so I jump – or at least clamber – out of bed and head to the shared bathroom allocated to my four-bed room. The three old bodachs* around me observe, with apprehensions ranging from ‘dull interest’ or ‘dozy complete non-comprehension’. I only met them yesterday, when I was admitted. They seem nice enough, if a bit dottlit. For example, one tried to get into another patient’s bed last night. Said bed was unfortunately already occupied, resulting in obvious but tragically comedic results, all witnessed by me as I tried to reason with the wanderer whilst pressing the call button for a nurse. I uncharitably wonder whether the wanderer has cause to be in a psychiatric ward rather than a urology ward, but that is not my concern. They have their battles, I have mine.

As for my own battle, this could be one of my more important bathroom trips. A friend who had a major operation some years before advised me to ask my consultant for a dose of prophylactic laxatives because, bluntly, I would not want to be moving very much in the days after surgery. I had asked my consultant about this in a preliminary meeting, but he apparently subscribes to the school of thought that such a dose might actually encourage infection, so I am on my own.

Nothing. Hmm. This might not be a good sign. Then again, I am pretty nervous. Maybe it is that.

I have a shower. I put on my gown. I go back to bed.

I wait.

A few people come to ask me questions. The tea trolley rolls by to taunt me. ‘Nil by mouth,’ is my reply. I have never wanted a cup of tea in my life more than at this moment. Similarly, I have never wanted my bowels to open so much. Well, not while I am on the bed, but you know what I mean. Anyway. I should stop talking shite.

‘Malcolm Combe.’

Aye, that’s me. Time to be wheeled down to theatre.

One of my new, mature friends in the ward wishes me luck. I don’t even know what is wrong with him. It seemed rude to ask. He didn’t ask me, but I can tell he was wondering why such a young chap was in this ward for old codgers. Or maybe he didn’t think about me at all. What does it matter anyway?

My body is prostrate, but my mind is racing. Is it too late to draw an arrow on the right side of my anatomy in permanent marker, to make sure the surgeon removes the right (and, in this case, correct) testicle? I suppose it probably is. Anyway, bizarrely enough, the removal of a testicle is not the biggest of my worries today. All going well, I am having a retroperitoneal lymph node dissection. The RPLND is necessary because my cancer was found at such an advanced stage that I now have a tumour mass in my abdomen. Lucky me.

I get wheeled into a lift. I am taken down to the waiting area before going into theatre. A black matriarchal figure – the sort who I imagine would be a de facto jury foreperson or church elder if she was ever part of such a community – takes all my details then leaves me to lie on the bed.

I wait.

I cross my ankles as I lie there.

The matriarchal figure tells me to uncross my ankles. I find myself complying before she has even finished her sentence. I apologise to her.

I wait.

I catch a glimpse of my consultant walking towards the theatre, striding purposefully along the corridor visible from my waiting area. I hope he had a nice meal last night and a good night’s sleep, like he said he would when he spoke to me yesterday.

I ask the matriarchal figure if I can go to the bathroom. She directs me to the toilet cubicle.

Success. I have the most important jobby of my adult life. [Okay, maybe that was too much information, but trust me: this was an amazing bowel movement. I don’t think I managed another for five days.]

I return to the bed. I nod at the matriarchal figure in silent satisfaction.

Ah, my turn for theatre now, is it?

No. That flurry of activity was for another patient.

I wait.

This time?

Yes.

I am taken to another room. Here is the anaesthetist. He spoke to me yesterday.

‘Smalltalk, smalltalk, smalltalk, blah blah spine, smalltalk, epidural, smalltalk.’

His assistant joins in. ‘Chat, chat, chat. Smalltalk, smalltalk, actually, doesn’t Malcolm look like this chap in the hospital who he doesn’t know? Chat, chat, chat.’

‘Yes, he does, ha ha, rhubarb rhubarb rhubarb,’ agrees the anaesthetist. At some point something is stuck into my back.

I am happy to report I remember nothing else.

Until I wake up.

Gradually.

Oh so gradually.

Actually, this is pretty sore. But I am awake. That’s good.

Morphine. Morphine makes it better.

I try to take in my surroundings. My mind starts to engage.

How did it go? Why do I have a bag attached to my stomach? Where am I?

All these questions, and more, will be answered in due course. Now, rest. And morphine.

In answer to the main question, it seems to have just about gone to plan. Phew.

One year on from my RPLND, I am still here. And still writing posts about cancer, even though I had planned to stop. Maybe this one will be my last. So what triggered this return to cancer blogging? Well, even though I did not realise at the time, as pathology results would be a few weeks in the preparation, that was the day the last of the viable cancer was carved out of my body. My one year, all clear anniversary seems as good a reason to wax lyrical as any.

And let this be another lesson in the merits of early detection. If the cancer had been caught earlier, I would have had a better chance of avoiding the RPLND rigmarole. Trust me: I would not recommend it.

Further cancer scribblings by me can be found here.

*Bodach is a Scots Gaelic (and Irish) word for old man. Believe it or not, it can be found in the Oxford English Dictionary.

The Future of Land Reform in Scotland (in 2015)

I went for a walk at the weekend, up Scolty Hill (near Banchory).

As you can see, it was a pleasant day, with clear views down to Banchory then along the course of the Dee its mouth at Aberdeen.

You can also see a fair amount of woodland in the photograph. Scolty Hill and the surrounding Scolty Woods are managed by Forestry Commission Scotland. Generally, FCS encourages responsible access taking to its terrain (although there is a pay and display car park: I cannot make my mind about whether such charges to access the outdoors are a good idea), so I had no concerns about having to quote the Land Reform (Scotland) Act 2003 at anyone calling into question my right of responsible access.

I did have some cause to think about land reform though, as I wandered down through Scolty Woods. I chanced upon a long abandoned house, on its way to being well and truly claimed by the forest. Photos from my camera phone will explain the overgrown dry-stane dyke, old well and ramshackle remnants better than words ever can.

I know nothing of this land’s history. If anything, this former dwelling reminded me of the Bennachie colonists, the last of whom left in the 1940s, some time after a commonty was divided from under the community. (Incidentally, that site is also best accessed by a pay and display Forestry Commission Scotland car park, but I digress). I have no idea if the house, or at least the house site, and what was the in-bye land could provide a viable living in the present day, apparently overcome as it is by woodland. Someone more skilled in ecology or anthropology could maybe provide that answer, but for present purposes it serves to highlight that humanity used to have a closer relationship with this spot than the occasional recreational visitor or forester has to it today.

Should we try to shake-up the law of Scotland, by providing a regime that might allow for an old way of life to be re-kindled, or perhaps a new way of life (or even just management) that is somehow preferable to the present day?

Welcome to the contemporary land reform debate. It took me a while to get there, but at least I showed you some nice photographs on the way.

The consultation on land reform in Scotland that I blogged about previously closes on 10 February. When I was not enjoying Scotland’s outdoors at the weekend, I was drafting my submission to the Scottish Government’s consultation. I used the new-fangled online submission tool and I was generally quite impressed with the interface. A PDF of my response was provided on completion.

I have written a lot about land reform lately, whether for this consultation, for the LRRG, for academic purposes or in relation to the community empowerment proposals (on which, a Scottish Parliament committee reported today), but despite that I felt it was important to put a response in. Perhaps I could have said a little more, especially in relation to the human rights norms driving towards rather than restraining reform, but I note the Scottish Human Rights Commission is making that point (as indeed I did in my submissions on the Community Empowerment Bill).

There are two weeks to add further thoughts to the mix. A Land Reform Bill is coming, that much is clear from the current politicking at Holyrood. What it looks like will draw on the responses to this consultation and other writings that led to this consultation. All of this might be too late for the smallholder who used to live at Scolty Wood, but it is no less important for all that.

Last but not least, here is pretty picture of the Falls of Feugh. Just in case you found the text of this blog boring.

A New Year’s Resolution – Salvesen v Riddell

When a court judgment is released by the Court of Session, it is now given a “neutral citation”. This begins with the year [in square brackets], either “CSOH” or “CSIH” (depending on whether it was the Outer or Inner House), then a positive integer (which integer increases by one with each judgment). So the first Inner House judgment of 2015 can be cited as [name of parties] [2015] CSIH 1.

So what was [2015] CSIH 1 about, I hear you cry?

It was the last judicial word in the extended Salvesen v Riddell saga. This regarded the award of (some) expenses against the Lord Advocate, in a case about the Agricultural Holdings (Scotland) Act 2003 and Article 1, Protocol 1 of the ECHR. Previous blogs by me on the topic can be found here, here, here, here, here, here and here.

In a succinct judgment (with which his two colleagues agree without addition), Lord President Gill awarded expenses against the Lord Advocate (who represented the Scottish Government) for the element of the case that related to the human rights compliance of the legislation.

Lord President Gill makes some useful remarks to remind us about the “offending section” of the Agricultural Holdings (Scotland) Act 2003 and why it fell foul of A1P1, referring back to the earlier Supreme Court judgment. He notes the section “applied in relation to a random period of time…; that it was essentially retaliatory…; that there was no intellectual or principled justification for it…and that there was no convincing justification for the differential treatment of the group of landlords to which the appellant belonged…and of other landlords.”

Barring separate compensation claims that may be working through the system (from other landowners and farmers who were interested observers to this litigation), that should be the end of this protracted matter.

As for the law of agricultural holdings in Scotland more generally, that is another matter. The Final Report of The Agricultural Holdings Legislation Review Group will be analysed very closely in due course.