Dispatches by the marketing cafe

D ispatches

from Tods Murray LLP Solicitors

SUMMER 2011 | Issue 42

WELCOME

elcome to the first issue of our new look magazine Dispatches, which has been redesigned to reflect the modern, progressive qualities of a firm operating in today’s contemporary marketplace. Recognising our readers lead busy lives, it offers a balance of news, updates and lifestyle features, to ensure there is something for everyone and I hope you find it an enjoyable read. These continue to be interesting times in business and the past six months have been an exciting and dynamic period for us. With the shoots of recovery continuing to grow, it’s time to look to the future and embrace optimism, innovation and creativity. That’s what we are doing at Tods Murray. As ever we value your feedback, so if one of the stories in this issue strikes a chord, then email me at david.dunsire@todsmurray.com

DAVID DUNsire

Executive Partner

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WHAT’S INSIDE 03 04 06 08 10 11 12 13 16 18 19

Sickness Absence, Social Media and a day at the races FAMILIES IN BUSINESS FLASHMOBBING IN THE NAME OF CHARITY – TEENAGE CANCER TRUST MARINE ENERGY – WHAT DOES IT MEAN? TOP TEN CREDIT DEALS THE BRIBERY ACT Brian Maule at Chardon d’Or A LAWYER’S LIFE FILM LOCATIONS LIFE AFTER THE FIRM

20 21 24 26 28 29 29 30 32 34 35 36

Pre-Nuptial Agreements JAMES THOMSON ETHICAL FINANCE THE GREAT DIVIDE DO CELEBRITIES INFLUENCE GREEN BEHAVIOUR? SOCIAL MEDIA WOMEN ON BOARDS NEWS GLASGOW 2014 PROGRESS SCIO – THE NEW KID ON THE BLOCK FIND A TODS MURRAY SERVICE THE LAST WORD

Design: The Marketing Café Ltd. | 0141 621 3900. All correspondence and advertising enquiries to: Tods Murray LLP, Dispatches Magazine, Edinburgh Quay, 133 Fountainbridge, Edinburgh, EH3 9AG T: +44 (0)131 656 2000. © 2011 Tods Murray LLP. All rights reserved. No part of this publication may be reproduced by any means without the written permission of the copyright owners. Although every effort has been made to ensure the accuracy of this publication, the publishers cannot accept responsibility for any errors or omissions.

Employment D

Sickness absence, social media and a day at the races Employers often grapple with sickness absence and how to manage it. The cold reality is that a modest minority of employees are quite happy to “take a sickie” if they think they will get away with it. The Chartered Institute of Personnel and Development suggests that most absence is genuine but everyone knows someone who plays the system. In a harsh economic climate, our experience tells us that many employers are enforcing attendance policies more rigorously and clamping down on what might previously have been considered minor misconduct meriting only a quiet word. Some employees who might have thought the odd day off came without a price, are now finding that they face redundancy selection based on their intermittent “duvet” days.

the underlying reasons for absence properly could end up in a discrimination claim. Increasingly, workers have caring responsibilities in relation to older relatives and it is all too easy to miss the signs of mental illness. Failing to investigate and recognise the signs can be very expensive. There can be serious financial consequences if an employer oversteps the mark when looking for proof that the employee is playing the system. It can be difficult to be confident about compliance with data protection and other legislation without expert assistance.

The risk is not, however, one-sided. There are significant traps out there for the unwary employer. An assumption that an employee is a “chancer” may ignore the possibility that he or she has caring responsibilities or an underlying illness or disability. Action taken without investigating

ASSOCIATE T: 0131 656 2364 E: chris.leitch@todsmurray.com

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What is certain is that good employers will make sure that they have written policies, carry out return to work interviews and utilise occupational health advice where necessary. Equally certain is that some employees will continue to work hard at avoiding detection.

The Top Five Suspect Sickness Absences

it is not new. A tribunal case a few years ago involved a hairdresser who was sacked for taking a day’s sickness absence to see her jockey boyfriend win at the Musselburgh races, after a picture of them hugging appeared in a national paper. The joy of hugging the winner of that race did not last long. The hairdresser was found 90% to blame for her dismissal and received a very modest award. A picture in the paper is one thing but what if the evidence is an email or a picture or message on a publicly-accessible facebook page? Almost everyone carries a mobile phone with a camera, so there are a lot of potential informants.

D Families in Business

FAMILIES IN BUSINESS

As celebrity chef Gordon Ramsay’s family feud last year demonstrated, the breakdown of a family business relationship can have repercussions extending far beyond the confines of the boardroom.

he dispute between Ramsay and his father in law (and former CEO) Chris Hutcheson seemed to tear the family apart, with Ramsay’s wife Tana allegedly being ostracised by her family as a result of her husband’s actions. The close ties which bind family members can be one of the greatest strengths of a family business – but also one of its greatest risk factors. As the Ramsay saga demonstrated, the effects of a dispute can be catastrophic – not just for the individuals involved but also for other family members who may be forced to take sides with one or other of the parties to the dispute. In some cases, if the parties concerned are no longer able to work together, this may sound the death knell for the business – potentially jeopardising many years of hard work, as well as the family income stream.

to bring in outside help. Careful handling of the individual personalities involved will be crucial. It is also important to remember that the policies and practices which may have been appropriate for a small business may need to be adapted to suit the needs of a growing business, and that it may be appropriate to put more formal governance structures in place. Whilst Gordon Ramsay possesses a famously short fuse and his father in law was described as manipulative and controlling, it is not difficult to see how sparks can fly when two such strong personalities are involved, particularly if they do not have clear boundaries setting out the extent of their respective authority. Ramsay stated that Hutcheson ran the business “as a dictator” and allegedly feared that he was losing control of his business, accusing Hutcheson of signing major contracts and promoting other family members to senior management positions without his knowledge (despite Hutcheson holding only a 29% shareholding).

The close ties which bind family members can be one of the greatest strengths of a family business – but also one of its greatest risk factors.

STRUCTURE

It was interesting that Gordon Ramsay was apparently asked by his advisers whether he would still employ Chris Hutcheson if he was not his father in law – the response, allegedly, being a resounding ‘no’. If a family member has held a senior role in the business for some time, it is always going to be the path of least resistance to keep them there. However, this may not necessarily be what is best for the business, which can throw up some very difficult decisions. This issue can become particularly acute where the family business has undergone a period of rapid expansion. In such cases, it is necessary to consider whether the family members actually have the experience and skills necessary to run a large enterprise, or whether it might be necessary

Although we don’t know the rights and wrongs of this particular case, such issues can arise in family businesses due to the lack of a proper governance structure and as a result of poor communication. A well run family business should ideally have a written agreement in place, setting out the family’s vision for the business, its goals and strategies and the rights and responsibilities of the parties involved. This might provide, for example, that certain decisions (such as hiring a managing director or agreeing a major new contract) require to be formally approved by specified family members. Although it is difficult to stop a wayward family member from breaching these provisions if they are determined to do so, it is much less likely that individual members will act unilaterally if they know that they are exceeding their authority.

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In such a case, it will then be clear to the other family members that the individual concerned has breached the terms of the agreement, rather than there being question marks over who was, or was not, authorised to make such decisions.

FAMILY COUNCIL Many family businesses find it useful to establish a board structure or ‘family council’, which establishes a pattern of regular meetings among family members. This can encourage a more structured (and more transparent) decision making process, as well as improving communication. Involving a non-executive director from outwith the family can also help to bring a fresh perspective to the business and can assist in facilitating discussions about issues which family members may find difficult to raise, for fear of upsetting others.

HEALING According to recent press comments, the Ramsay rift may be starting to heal, although the relationship between the parties will inevitably have been damaged. For most family businesses, which do not have the eyes of the media trained upon them, it is perhaps inevitable that issues or disagreements will arise from time to time. However, proper handling of these – coupled with appropriate governance structures and open communication – can hopefully help to avoid any simmering tensions bubbling over into a (kitchen) nightmare.

Susan McFadyen Partner T: 0131 656 2360 E: susan.mcfadyen@todsmurray.com

Families in Business D

Whilst Gordon Ramsay possesses a famously short fuse and his father in law was described as manipulative and controlling, it is not difficult to see how sparks can fly

EXPERT INSIGHT Family businesses are different. They operate in an environment where typical business issues can be more complex. Indeed, family businesses face issues that simply do not occur outside this sector. For example, the desire to protect the business and retain future ownership within the immediate family will often be a key driver. In our experience, advising family businesses needs to factor in a wider range of objectives, and to recognise that the most appropriate strategy will not always be the most profitable â&#x20AC;&#x201C; profit is important, but so too are family harmony, reputation and loyalty to the workforce.

Jack Gardiner Partner T: 0141 243 4594 E: jack.gardiner@todsmurray.com

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Entertainment and Media

FLASH MOBBING Even a lawyer has to have a pastime. Richard Findlay, Head of Entertainment and Media Law at Tods Murray LLP, discussed the potential legal pitfalls associated with a passion for photography in his article Life Through a Lens, Keeping Clear of a Life Sentence, published in The Firm magazine. Now his colleague, Thomas Murdock, moves the discussion on to the dos and donâ&#x20AC;&#x2122;ts of flashmobbing.

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Entertainment and Media D

Although nothing specifically prohibits the flashmob, the actions taken may draw the attention of the eyes of the law.

“Tods Murray enjoys a well deserved reputation for TV, film and theatre matters. It recently advised Billi Productions on ‘Sir Billi’”. “Richard Findlay is the number-one lawyer for the creative community in Scotland.” Chambers and Partners

eyes of the law. What are you getting involved in? Do you know anyone else attending and who the event organiser is? Are you attending privately or in some representative capacity? Flashmobs are variously overt, audacious or perhaps even offensive, and at other times discrete or unnoticeable, other than between those involved silently sharing a wry smile or nod of acknowledgment. Will it be a peaceful demonstration or will you become embroiled in a protest?

What is flashmobbing?

If you’re flashmobbing with your camera, be careful who you take a picture of. The Counter-Terrorism Act 2008 contains a provision in section 76 that it is an offence to elicit, publish or communicate information about a member of the armed forces, a member of any intelligence service or a police constable. That applies to taking photos or recording video. So be very wary about hanging around a certain well-known building at Vauxhall Cross with your 15 megapixel out. Privacy must be borne in mind. Although there is no single act in UK legislation that enshrines privacy, various human rights treaties recognise privacy.

It could be considered the modern-day version of what mid-century Pop Artists Jim Dine and Claes Oldenberg might have termed as a ‘happening’. It’s the nebulous practice of suddenly descending en masse on a specified target, usually doing something rather unusual and then dispersing. Polymorphously dancing, stripping off for a street artist, photographing a particular person or place, singing, jumping, shouting, chanting, it is mostly facilitated by dedicated internet sites or chatrooms, and often under the banner of protest or exercising civil liberties.

Article 8 of the European Convention on Human Rights articulates privacy by enshrining the right to “private and family life”. Similarly, if you exact a pattern of flashmobbing on a specific individual, the Criminal Justice and Licensing (Scotland) Act 2010 dictates that you could be guilty of the offence of stalking. Various other scenarios could include being charged with the common-law offence of breach of the peace, assault (whether verbal or physical), or obstruction.

lashmobbing is the school of fish to the shark of the law. Just as the seemingly impenetrable ball of sardines appears to dwarf and confuse its many-toothed enemy in a sinuous watery dance, on closer inspection individuals are vulnerable to being picked off. It may appear a safe activity but is still subject to predatory esoteric extrapolations of current law. So before you head out fishing for trouble, here’s something to get your teeth into.

Cynics contend the flashmob has become the canny marketing ploy du jour. In May this year a Bangra flashmob danced on Broadcasting House in an attempt to save the BBC Asian Network. Another included a 4,000 strong flashmob dance at Victoria Station in London, where bemused commuters grappled with their skinny lattes to make sense of the event. More locally, a group of photographers descended on Multrees Walk in Edinburgh this October to exercise their right to take pictures in a public place. Is it art or is it protest? It’s certainly a strange fish. Before you dive in, there are some legal implications you should be aware of. Although nothing specifically prohibits the flashmob, the actions taken may draw the attention of the

You may be small fry, but you can still get into deep water. To read more IT, IP and media articles, go to www.todsmurray.com/media

Richard Findlay Partner T: 0131 656 2276 E: richard.findlay@todsmurray.com

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CSR

In the Name of Charity

teenage cancer trust Everyday in the UK, six young people (13-24 year olds) are told they have cancer. That’s approximately 2,100 young people every year and unfortunately this figure is rising.

Teenage cancer is an illness that many of us may have never even considered, assuming the older segment of the population to be the only sufferers. Teenage Cancer Trust was formed to cast aside this very ignorance and to transform the lives of young people with cancer. By providing or facilitating access to the best possible care and support, Teenage Cancer Trust has made, and continues to make, an overwhelming difference in the lives of young people with cancer.

As Teenage Cancer Trust Chief Executive, Simon Davies, explains: “In understanding the specific needs of a teenager with cancer, Teenage Cancer Trust treats them as a teenager first, cancer patient second. We don’t believe that cancer should get in the way of them being able to stay young people.” THE BEGINNING The revolution began in 1989 when a few pioneering women, raising money for a children’s intensive care unit at Guys Hospital in London, met a mother who’s son developed cancer aged 13. On the realisation that many teenagers not only have to battle with cancer, but are also more susceptible to the rarest forms of the disease, these women

Tods Murray & The Teenage Cancer Trust Tods Murray has been working with the Teenage Cancer Trust as its charity of the year since 2009. As well as raising money for the charity, Tods Murray is proud to be able to provide charity law training for the Scotland team and work experience opportunites for young people with cancer from the region. By exerting continued creativity and energy into its fundraising, Tods Murray looks forward to helping Teenage Cancer Trust reach its goals for the future. Visit www.todsmurray.com/csr for more info

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set out to build a safe, welcoming environment for teenagers who were going through this harrowing experience at such a sensitive time of life. These remarkable women successfully raised the funds required to open the first Teenage Cancer Trust specialist cancer unit at the Middlesex Hospital in London on 22nd November 1990. Today, Teenage Cancer Trust continues to follow in the footsteps of these pioneers building specialist teenage cancer care units in NHS hospitals with the aim of ensuring that every young person with cancer and their family receive the best possible care and professional support throughout their cancer journey. Roger Daltrey CBE, Patron of Teenage Cancer Trust and The Who Front Man, spoke about the work of Teenage Cancer Trust: “Dealing with cancer is frightening. Being taken away from your normal life – your friends, your environment – and put in a cancer ward with small children or older people is unimaginable. At Teenage Cancer Trust, we don’t believe this is right, as teenagers with cancer shouldn’t have to stop being teenagers. These units are great and become a home away from home for the young people treated in them.”

CSR

THE UNITS Teenage Cancer Trust units are designed with the help of young people, for young people. Decorated with pool tables, games, vending machines and computers, the units feel like an extension of normal teenage life, maintaining a sense of normality and quality of life for those periods where treatment has to be undertaken. This fun atmosphere allows young people to be themselves, and places them in an environment where they can be supported by others in their position and of their own age, instilling each patient with an inspirational sense of community. Research carried out by the Futures Company in 2009 concluded that the impact of Teenage Cancer Trust’s units comes from their facilitation of normality through extending the atmosphere of a young person’s surroundings through to the hospital environment. However, outwith the units themselves, Teenage Cancer Trust carrys out a host of further progressive work, from medical research through to the facilitation of support networks for cancer patients and their friends and family, as well as educating young people about the prospect of teenage cancer and how to spot it. With a real insight into the lives of teenage cancer patients and their families, the Trust is able to provide exactly what is required at such an unstable time of life. TEACHING For so many young people, their first encounter with ‘cancer’ can be a harrowing experience, all too often littered with connotations of elderly family members and terminal care. The Teenage Cancer Trust aims to educate young people on the effects of cancer, so that they are fully aware of how it could affect them or their peers.

By teaching young adults about the signs and symptoms, as well as giving general healthy living advice, they are empowered to be able to flag up any cause for concern at the earliest stage. RESEARCH Although not a research charity, Teenage Cancer Trust has both direct and indirect involvement with research issues concerning cancer and young people. By funding the first Professor of Teenage Cancer Medicine, the Trust is able to lead research into the reasons behind why young people get cancer and how best to treat it, ultimately improving diagnosis, treatment and survival rates. In addition, various research projects are conducted in order to enhance the services and support given to young adults with cancer and to their families. SUPPORT Through the family support network provided by the Trust, it is able to give unrivalled support to patients and their families. Funding specialised staff, each experienced and trained in the psychosocial needs of young adults with cancer, family and friends are brought together and supported throughout the cancer journey so that in turn, the patient is supported to the best possible extent. FUNDRAISING With no government or lottery funding, Teenage Cancer Trust is completely reliant on voluntary donations to build units, fund dedicated support and research staff and equip the units with everything they need to give the best possible quality of life to their teenage patients. 2010 was the most successful fundraising year yet, with eight new units built, giving a grand total of 17

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units throughout the UK. Yet, it is estimated that still only half of the teenagers diagnosed with cancer in the UK have access to the specialist care given by Teenage Cancer Trust. With the ongoing support of companies and individuals, Teenage Cancer Trust aims to continue its ground-breaking work and reach the phenomenal goal of building enough units, so that by 2012, every single teenage cancer patient in the UK has access to its specialist services. INSPIRING When asked about what Teenage Cancer Trust is all about, young patients have described the work of the charity as symbolic of progression, inspiration, courage and growth; a description which moves us just a fraction of the way towards comprehension of the overpowering encouragement that the work of the Trust has on these young adults. www.teenagecancertrust.org/get-involved The Charity Team within Tods Murray has a wide range of professional expertise which it shares with local charities, community organisations and social enterprises through its Third Sector Forum. In March 2010, Tods Murray developed the Third Sector Forum, to help those involved in this industry share ideas and learn from the experiences of others.

For more information or to watch a briefing by Geraldine Gammell of the Prince’s Trust, go to www.todsmurray.com/thirdsectorforum

D Renewable Energy

Marine Energy What does it mean?

Scarcely a day passes without some news item or government pronouncement on renewable energy. From the expansion of wind farms to the development of hydro-electric schemes, we are becoming acclimatised to our landscapes being shared with the infrastructure required to help Scotland reach its Climate Change targets.

arge off-shore wind farm developments are also to be rolled out shortly, which, in terms of capacity, will dwarf their on-shore counterparts, but far less is said about marine energy, despite strong Scottish Government support and a rapidly growing Scottish technical expertise. Simply put, marine energy can be described as electricity produced as a result of wave or tidal action. The concept is not new, but the difficulty is in harnessing the power of the ocean, which can be destructive and a difficult environment to work in. In its favour, unlike wind, the energy from the sea can be anticipated in advance. The tide flows in a regular cycle that can be predicted almost without fail and, with the correct information on wind speed and direction, the frequency and height of waves can also be determined a few days in advance. The trick is to harness the power and turn it into cheap, reliable energy. However, the technology to produce electricity in this way is still in its infancy, especially when compared to the proven technologies behind wind turbines and hydro-electric schemes. The cost of producing working prototypes and bringing commercially viable machines to market is high, in turn affecting the cost of producing the electricity on a commercial basis.

At present, the Renewable Energy industry is bolstered financially by what are known as Renewables Obligation Certificates (ROCs). These are green certificates issued to generators of renewable electricity generated within the United Kingdom. These are then sold to licensed electricity suppliers and, as such, have a market value. One ROC is issued for each megawatt hour (MWh) of eligible renewable output generated from most sources. However, in Scotland, marine energy tidal schemes will receive 3 ROCs per MWh of electricity generated and wave power machines will receive 5 ROCs per MWh.

According to the Scottish Government, the seas around our shores have the potential to provide

25% & 10%

A test facility “The European Marine Energy Centre (EMEC)” has been set up in Orkney, established to assist the testing of full-scale machines, developed to convert wave and tidal energy into electricity. The facility allows prototypes to transmit electricity direct to the Grid and two schemes are currently being tested, the Pelamis wave powered machine and the Oyster wave powered machine operated by Aquamarine Power. Another contender, the LIMPET (land installed at mains powered energy transformer) based on Islay, is a shoreline energy converter which uses an oscillating water column method to generate electricity. The ambition is to create a technical advantage here in Scotland, so that this expertise will then be sought around the world. So far, this has shown promise, with orders for Scottish based machines being taken in places such as Portugal.

of its wave power

of Europe’s tidal power

so, as an added incentive, the Scottish Government has introduced the Saltire Prize -

£10 million awarded to the recipient who can demonstrate that

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Powering the debate: Tods Murray hosted a Times Scotland Business Forum considering the future of renewable energy in Scotland. To see the discussion, go to greenteamblog.todsmurray.com

gigawatt hours

of electricity can be produced in a continuous two year period - the largest such prize on offer anywhere in the world.

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With the political will in place, and an energy resource sitting on our doorstep, now might be the time to consider investing in this form of power.

Richard Leslie Partner T: 0131 656 2055 E: richard.leslie@todsmurray.com

Banking and Finance D

1. Shop around

2. Know the risks

3. All that glitters is not gold

With so many deals out there, it pays to shop around. Always check a product’s Annual Percentage Rate (APR) as lenders are obliged to quote this in most adverts for loans and credit cards. APR generally reflects the true cost of a loan, factoring in hidden expenses such as administration costs and fees in addition to the lender’s interest rates. Checking the APR is therefore a useful way of comparing different products offered by different lenders and comparison websites can be a helpful starting point for this information.

Whilst the age-old advice “Your home may be at risk if you fail to keep up with repayments” might not be as applicable to unsecured loans, it’s important to understand that lenders still have a large range of legal measures available to them to recover unsecured debts, such as freezing funds in your bank account or physically seizing your worldly goods should you fail to keep up with repayments.

Some credit card issuers offer rewards such as loyalty points, cheap tickets to gigs, and mobile phone insurance. Don’t be overly swayed by such enticements. For example, if you find that the loyalty points can only be used at shops that you’re unlikely to visit, or your mobile phone is already covered by your home insurance, then a lower-rate interest deal, with fewer rewards, may prove better value.

10. Rebuild your credit rating If you’ve had problems with money in the past, mainstream banks and credit card issuers may be reluctant to lend to you. However, there are specialist lenders who offer loans and credit cards to those with bad credit histories. The interest rates on these products are usually higher than their mainstream equivalents, but, provided that you make your repayments on time, they can help you to get your credit rating back in the black.

9. Choose the right tool for the job If you are planning to make a big purchase, it may make sense to use a credit card rather than a loan or overdraft. Credit card issuers are jointly responsible with retailers for purchases between £100 and £30,000, so if the retailer goes bust after you’ve paid or the goods turn out to be faulty, you may be able to claim a refund from your credit card issuer.

8. Plan for the good times … and the bad Don’t overstretch yourself – if your interest rate is variable, rather than fixed, your monthly payments will increase if rates go up. Consider how you might repay a loan or credit card if you lost your job or suffered a serious illness. Many lenders will offer you Payment Protection Insurance (PPI) to safeguard against these events but you should remember that the best PPI deals are geared towards people with low-risk employment histories so, like any insurance, you have to ask yourself, “Is it worth it?”

TOP 10 credit deals Top Tips for getting the best deal from loans and credit cards

In this article, Peter Alderdice, banking and finance solicitor at Tods Murray, specialising in consumer credit regulation, offers his top tips on getting the best deal on a credit card or loan. For more information on our Banking Team visit www.todsmurray.com/banking

Peter Alderdice sOLICITOR T: 0131 656 2151 E: Peter.Alderdice@todsmurray.com

4. or… it’s too good to be true At the other end of the spectrum, some lenders may offer you low-rate deals for short periods of time, such as 6 months to a year, followed by a steep rise in the applicable interest rate. These low introductory rates are an incentive to sign up to credit agreements and are often referred to as “teaser rates” or “balloon” loans (as the cost of repaying the loan inevitably expands) but they should not be entered into without considering the long-term costs involved rather than focusing on the obvious short term benefits of a low interest rate.

5. Read the small print Make sure that you are aware of your responsibilities as a borrower. If you don’t meet your monthly payments on time or exceed your credit limit without the lender’s approval, or want to repay the loan early, you may incur additional charges under the terms of the credit agreement, which can be an unwelcome and sometimes expensive surprise. Additionally, details of any defaults may be passed on to credit reference agencies, who will record it on your credit file. This may make it more difficult to get loans or credit cards in the future.

7. Check your credit rating

6. don’t be pressurised

If you have been refused credit, it may be worth checking your credit rating. For as little as £2, you can get a report from a credit reference agency on your creditworthiness. If the report contains errors or shows a link to a former spouse or partner who you have separated from, you can ask the credit reference agency to correct the information.

If you are on the receiving end of a “hard sell” and are having second thoughts, remember that there may still be time to back out of the deal, even after you’ve signed the credit agreement. With most loans and credit cards, there is a coolingoff period during which you can cancel the agreement if you’ve changed your mind.

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Bribery

ThE

B R ib E R Y a C t

It has now been confirmed that the Bribery Act will come into force on 1 July 2011. Alongside confirmation of implementation, formal guidance on what “adequate procedures” organisations can put in place to prevent bribery has also been produced by the Ministry of Justice. There are a number of general offences covered by the Act relating to both “active” and “passive” bribery and a specific offence of bribing a foreign public official in the course of business. The Act also creates a new form of corporate liability of failure by a commercial organisation to prevent bribery. The organisation is liable if “associated persons”, including employees, commit bribery on the organisation’s behalf. Organisations facing prosecution under the corporate offence can rely on the “adequate procedures” defence. The six principles in the guidance that form the bones of the defence are as follows: proportionate procedures, top-level commitment, risk assessment, due diligence, communication (including training) and monitoring and review. The principles are not prescriptive and proportionality will be key. For example, those organisations operating in foreign markets and in high risk industries such as oil and gas, will necessarily require more sophisticated anti-bribery procedures than those organisations operating in purely domestic markets. The formal guidance makes steps to address and clarify other areas of concern previously expressed by businesses: hospitality, the definition of “associated persons” and facilitation payments.

The guidance states that “reasonable and proportionate” hospitality is not intended to be prohibited under the Act. Getting to know your clients with trips to Wimbledon or the Grand Prix, where expenditure is proportionate and in good faith, will not be prevented. Equally, all expenses lavish mini-breaks for clients or public officials, where there is no clear business purpose, would no doubt be in line for the prosecutors bullet. In relation to “associated persons” the guidance stresses that the definition is intended to embrace a wide range of persons connected to the organisation, for example, contractors and suppliers, where such parties can properly be said to be performing services on the organisation’s behalf.

of such payments is acknowledged to be a “long term objective that will require economic and social progress” and a commitment to the rule of law in those countries where such payments are common place. Not quite the carve out some were hoping for but certainly a softer approach than originally taken.

WILL THE ACT BE ENFORCED? With other countries increasingly carrying out large corporate prosecutions, the UK Government will be under pressure to make use of its new powers under the Bribery Act. The Serious Fraud Office (“SFO”), the body responsible for enforcement in England and Wales, has said that it will “enforce the Act vigorously” and that enforcement of the Act will be a “high priority” for prosecutors.

Some clarity has been given regarding the issue of sub-contractors. The guidance acknowledges that an organisation is likely only to exercise control over its direct contractor and may not even be aware of the identity of the sub-contractor. The guidance suggests that risks associated with a supply chain can be mitigated by anti-bribery terms in the contractual documentation and by requesting that the contractor adopts a similar approach with the next party in the supply chain.

In the past couple of years, the SFO has successfully investigated and prosecuted companies such as AMEC, AON, Mabey & Johnson and DePuy for bribery related offences.

Organisations have also been given some relief in relation to Joint Ventures. A bribe paid on behalf of a JV entity by its employee will not trigger liability for other members of the JV, simply by virtue of their benefitting indirectly from the bribe through their investment in, or ownership of, the JV. Facilitation or “grease” payments may still be treated as bribes under the Act. However, eradication

The SFO will work with the Scottish authorities (the Crown Office and police) to investigate and prosecute bribery. The Crown Office is making increased use of its power to confiscate the proceeds of crime, recovering the entire profits from contracts secured using bribes. Funds recovered in this way have then been used to fund further investigations.

A common outcome has been a multi-million pound settlement payment from the organisation, with the individual directors prosecuted separately. We can expect the SFO to carry out at least one large scale investigation a year.

5 STEPS TO FOLLOW IF YOU UNCOVER BRIBERY If you discover that bribery may have occurred, in your organisation or by an associate carrying our services on your behalf:

3. Take steps to prevent a recurrence of the bribery and document those steps (this may be crucial to your defence/mitigation if you are prosecuted).

1. Seek legal advice as a matter of urgency. Receipt of appropriate advice from an early stage will be imperative.

4. Consider if a Suspicious Activity Report should be made to the Serious Organised Crime Agency (your solicitor can advise you on this).

2. Identify a risk management expert to assess your policies and procedures.

5. In England, consideration can be given to selfreporting the bribery to the SFO, with the aim of agreeing a civil settlement and avoiding a conviction. In Scotland this option is not currently available.

Please see www.todsmurray.com/bribery for current Bribery Act information and to view footage of Peter Gray QC providing his views on the new Act.

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video available

Barbara Bolton & KATIE BAKER BARBARA BOLTON, ASSOCIATE T: 0131 656 2152 E: barbara.bolton@todsmurray.com KATIE BAKER, SOLICITOR T: 0131 656 2169 E: katie.baker@todsmurray.com

Hospitality & Leisure D

LUNCH time

Brian Maule at Chardon d’Or is not only home to some of Glasgow’s best food, but is also home to the Tods Murray Glasgow Lunches

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D Hospitality & Leisure

lasgow’s gourmet gem, Brian Maule at Chardon d’Or, is a favourite haunt of ours here at Tods Murray. During his 10 years in business, Brian Maule has transformed the West Regent Street shell into a luxurious, fine dining retreat boasting first class service, the best of culinary expertise and exquisite surroundings. We caught up with him to get an insight into one of Scotland’s top award-winning restaurants. Leaving school in 1985, Brian went to work at the Skean Dhu in Irvine before moving from his Ayrshire home to Lyon, the culinary capital of the world. In Lyon, he was lucky enough to begin working with Roger Roucou as Commis Chef. After a year being immersed in the world of fine dining and the French language, Roger introduced Brian to Albert Roux, one of the world’s best-known and best-loved chefs. As Brian explains, after that moment “the rest is history”. Brian worked with the Roux brothers at Gavvers in Sloane Street for some time before working his way up to Chef de Cuisine under Michel Roux at the world famous two-star Michelin London Restaurant, Le Gavroche, when he was 24, in charge of a select brigade of 18 chefs. Following 8 years here, Brian realised his dream of having his own restaurant in Scotland, and made it happen. Keen to bring his French training and international reputation back to Scotland with him, Brian was inspired by a plaque given to him by a friend when he left Le Gavroche. The plaque was a Golden Thistle, translated in French as Chardon d’Or. The doors of Brian Maule at Chardon d’Or opened on 28th May 2001 and it is today, one of the top gourmet restaurants in the country, enjoying an array of Toptable awards, AA Rosettes, and the very apt “Spirit of Glasgow” award. Warm and inviting, the restaurant oozes a buzzing ambience that encourages guests to come back again and again.Set in a renovated Victorian building near Blythswood Square in the heart of the city centre, the restaurant oozes elegance and originality at first glance. Stripped back to its original splendour, the classic features of the traditional Victorian Townhouse shine through the contemporary finishings. The standard of the Chardon d’Or cuisine demands a quality of service that is second to none, which certainly enhances a lingering air of quality that already exudes from the restaurant. “Our front of house team epitomises Glasgow hospitality; warm,

I only want the best in my restaurant for my customers. friendly and always striving to fulfill our clients’ needs,” says Brian. Setting himself apart from his peers, Brian prides himself on a hands-on approach, ensuring that he is in the kitchen and chatting to guests on a regular basis. He says, “My name is above the door, so my guests have a right to expect me in the kitchen. That’s where I want to be, overseeing every dish that is created.” Taking his food very seriously results in a level of excellence and attention to detail that is unrivalled. Many guests are surprised to see Brian out in the restaurant after service hours chatting and laughing, winning the admiration of his guests with his entirely personable, down-to-earth character. Choosing Scotland as a base for his venture was an obvious choice, given the quality of the local, natural produce. Brian explains, “I only want the best in my restaurant for my customers. Scotland is blessed with the best produce, ranging from plump, hand-dived scallops and fresh fish, beef and lamb, to an unbeatable selection of game! I have a very good relationship and understanding with my local suppliers.”

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Working with local Scottish produce, the Chardon d’Or menu is packed with classic, traditional dishes, each with a unique, yet completely delicious, ‘Brian Maule twist’, ensuring that each mouthful is unforgettable. Catering for private events, from business functions and parties to weddings and graduations, Brian will actually tailor a stunning menu designed for you and your guests, serving them in one of the three private event rooms located in the basement of the building. We asked Brian to provide Dispatches with a dish for our readers. Explaining his recipe choice he said, “When I moved over to France for the first time, I had very little knowledge of the French language, ‘oui and non’ – that was about it. All the chefs nicknamed me ‘Roast Beef’ until the day I left, which brings me to this recipe.”

Glasgow Lunches Chardon d’Or is the home to our Glasgow Lunch series. Attended by clients and contacts, each lunch is themed around a particular topic presented by a guest speaker. Over the years we have welcomed many well known faces, from Brian Wilson the former Energy Minister and Annabel Goldie MSP, to Mark Laing Managing Director of Nairns Oatcakes, to share their views and experiences.

Hospitality & Leisure D

MEDALLIONS OF SCOTCH BEEF WITH WILD MUSHROOMS and RICH RED WINE SAUCE Serves 4

METHOD Pre-heat oven to over 200°C

Cooking time: 45 minutes 8 beef tails 1 bottle red wine 200g wild mushrooms ½ litre of beef jus(stock) 60g unsalted butter 20g butter 300g spinach 10g salt

Top Tip When buying your beef, it’s always a good idea to get it from your local, independent butcher, that way 1. You are supporting your local butcher and 2. You can find out how long it has been hung, because the longer that it has been hung the more tender the beef is.

Prepare a mixture of wild mushrooms, for example shitake, oyster and girolle make a good combination. Cut up into reasonably big pieces. Fry lightly in a little olive oil until slightly coloured. On to the spinach. Pick out the yellow leaves and the stems then wash in salted cold water 2 or 3 times depending on how dirty the spinach is. Take a knob of butter and put into a hot pan. Wait until the butter has melted and then add your spinach and cook quickly to keep the green colour (if you cook too much it will go brown). Put your red wine into a pan, bring to the boil, and then reduce by 2 thirds. Add the beef jus (stock) and reduce again until you get the consistency you

are happy with, ideally you are looking for a thick coating when you dip your spoon into it. Take the beef tails and cut evenly. Season and fry in a very hot pan, getting an even colour all round. Pop the beef into the oven. Depending on how you like your beef, depends on the length of time you leave it in.

Dressing the plate Place the spinach on the bottom of the plate, put the beef medallions on top of the spinach, then place the mushrooms over and around the plate. Taking the lovely reduced red wine sauce, pour around the beef sauce then serve.

Alternative 1

Alternative 2

If beef tails aren’t your favourite bit of beef, then you could use beef sirloin, beef rump or rib-eye. When buying your beef for this dish or any other, you are looking for a firm and marbled texture and obviously Scotch beef (as it is the best). Remember to season on both sides before cooking. It is important when cooking beef that you let the meat rest before serving the dish.

Alternatively, if you don’t fancy beef, why not try this Salmon option? Using 4 portions of salmon fillets, colour both side of the fillets until golden brown and then put into the oven for 6 - 8 minutes. Use the same method for the rest of the dish and then serve.

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D A Lawyer’s Life

A LAWYER’S LIFE SUSAN McFADYEN Despite what you may hear from comedians and the press, lawyers are people too. In fact, for many it is precisely the combination of interesting people and diverse opportunities that attracts them to law in the first place.

City

Susan McFadyen is a partner in the Tods Murray Corporate Team, dealing with mergers and acquisitions, management buy-outs, joint ventures, general commercial contracts and intellectual property. She is an active member of the Families in Business Team and the Hospitality and Leisure Team. She also regularly attends the Tods Murray ‘Women In Business’ Network. In 2007/2008, she spent six months on secondment in China based in a law firm operating out of Hong Kong. We ask her for an insight into her life and experiences.

Place One of my favourite places is the hotel Villa San Michele in Fiesole, which is just outside Florence. I got married in Florence a couple of years ago, and we had our (very small) wedding reception and drinks at Villa San Michele. It is a former monastery, apparently designed by Michelangelo, and has amazing gardens and fantastic views over the beautiful Tuscan countryside towards Florence. Hopefully, I will be able to go back and actually stay there one day! I also enjoyed visiting Villa Serbelloni, on Lake Como where part of the James Bond film “Casino Royale” was filmed. It would be an amazing house if you could afford to buy it!

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This is a difficult one as I am a great fan of city breaks, but probably the city which I would most like to return to is Bangkok. I went there a few years ago and loved it – it is a very frantic place but so full of energy, and the people are fantastic. Aside from the usual temples and historical sites, one place which I really loved was Chatuchak Market. It’s one of the biggest markets in the world, and you can buy almost anything there – including amazing Thai food for next to nothing. The sights, sounds and smells are spectacular. In Europe, my favourite city is probably Rome – I love the way that you can walk through areas with centuries of history whilst normal Italian city life whizzes past you (usually on a scooter!).

A Lawyer’s Life D

Beach I’m not really a beach person – I like walking along the beach but couldn’t sit still long enough to lie on a beach for any length of time! I do like Shek O beach in Hong Kong, which is a short journey from the Central area. It’s a lovely beach in an area with a village atmosphere. They have permanent barbeques set back from the beach, so you see whole families gathered round those, having a sociable dinner. Through Tods Murray, I did a 6 month secondment in Hong Kong a few years ago, so it was great to have more time to be able to explore the less well known areas. If you go there for a city break, you tend to stick to the built up areas, but there are many more islands, beaches and walking trails to explore (as well as Disneyland Hong Kong!).

Inspirational Figure Obviously, there are lots of famous inspirational figures, but I don’t have anyone in particular whom I would choose, although I do admire people like Richard Branson, who manage to build amazingly successful businesses from virtually nothing. I probably find ordinary people more inspirational however – people who have to pick up their lives after natural disasters or personal tragedies, or live with terrible illnesses or disabilities. I think their courage and resilience is truly inspirational.

Read I enjoy reading books about the way of life in other countries, whether fact or fiction. One book that sticks with me is Wild Swans, which documents the lives of 3 generations of women living in China – before, during and after the Cultural Revolution. I have also enjoyed reading various books about life in Afghanistan, like “The Bookseller of Kabul“ and “A Thousand Splendid Suns” which give a balanced view of cultural life in Afghanistan and the historical context. I also enjoy reading cookbooks. I’m not a very good cook, but I like to leaf through the recipes and think about what I might try to make at some point in the future. You might think that a gourmet chef lived at my house, based on the number of cookbooks which I have, but the reality is sadly very different!

Walk I spent a holiday in a town called Limoux, in France, a couple of years ago. Our rented house was right on the banks of the River Aude and it was a beautiful walk along the riverbank every morning into the main part of town, to stock up on baguettes and other breakfast goodies. It was lovely to see and hear all the ducks quacking along the riverbank, and I grew quite attached to them. I was sad to leave them at the end of our holiday, but I haven’t eaten duck since!

Sport I am more of a watcher of sport than an active participant! I really enjoy Formula 1, particularly all of the strategy that goes on behind the scenes. I went to see the Italian Grand Prix in Monza a few years ago, and the noise of the cars was unbelievable – like 10 jet engines taking off at once. I also enjoy horse racing, which probably stems from working in a bookmakers during my student years!

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D Rural Property & Business

Film Locations Film locations are a lucrative business. Rosslyn Chapel was made worldfamous by the Da Vinci Code, Taymouth Castle in Perthshire was used to film Mrs Brown and even parts of Mission Impossible were set in Scotland. But its not just famous landmarks and historic buildings that are of interest for filming locations. Quaint cottages, farmland and rural towns have equal appeal, providing they are easily accessible. With location scouts relying heavily on websites such as Scottish Screen Locations, it really couldnâ&#x20AC;&#x2122;t be easier to market a property in this way and potentially make thousands of pounds in just a few days. Advertising companies tend to be more lucrative and require the property for the shortest amount of time, whereas film crews could require a property for weeks. Also, as some crews can have up to 60 people, the owner may have to seek alternative living arrangements throughout their stay. Anyone can offer their home for filming opportunities and it doesnâ&#x20AC;&#x2122;t need to be a grand looking home set on a vast estate. Run-down or empty buildings are also attractive and the interior, exterior, or both could be used, depending on what the location scouts are looking for.

Sarah Cudworth Partner T: 0131 656 2324 E: sarah.cudworth@todsmurray.com

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Alumni D

Life After The Firm

Life is not a dress rehearsal. Be bold and go for it!

We catch up with one of our alumni who has gone on to achieve an overwhelming amount in her career, asking about the highs and lows of her journey so far. Margaret Morton spent seven years working with Tods Murray, latterly as a partner of the Firm working in the Commercial Property Department. After deciding to move on in 2007, she undertook a complete change in direction and joined Barnardo’s Scotland as Development Manager and was quickly promoted to Head of Fundraising a short eight months later. In August 2009, she was head-hunted, for the role of Head of Investors Relations with the innovative venture philanthropy organisation that is Inspiring Scotland, for her unusual combination of experience in both the private and voluntary sectors.

Q. Can you tell us about your current role? A. Inspiring Scotland takes the principles of venture capital – long term investment and tailored development support – and applies these to the not-for-profit sector. However, instead of working in financial investment, it works in social investment. This role is the perfect hybrid of my past experience, because the organisation has a business approach to charity. Most of my colleagues come from a professional background.

Q. What did you learn from your time at Tods Murray that has helped you in your career progression? A. From Tods Murray, I took away a range of skills that would equip me in so many areas of my life. Law is essentially a service industry that requires a wide range of transferrable skills. I was able to build on leadership, management and business development skills during my time in the Firm, each of which I now use everyday in my current role within Inspiring Scotland.

Q. What led to your career change from law to charity? A. A surprising combination of a few circumstances led to my decision. After 14 years in law, I had undergone the natural progression, right through from my degree to becoming a partner. I needed a new challenge. At that time, I was recovering from a dramatic personal experience. After a sudden anaphylactic reaction to nuts (although I had never had any problems before) I was rushed to hospital and spent the night on a drip. This was a life-

changing experience that made me realise what was important. It focussed my mind and made me bolder. As a volunteer with Spifox Too (a Scottish Registered Charity), I had experience in charity work and got to know children’s charities well during my time at Tods Murray. Barnardos was looking for a development manager to focus on fundraising and I decided this was the new challenge I had been seeking. I am not materialistic, so was happy to take a pay cut in order to fulfil my ambitions and make a difference.

Q. What has been the most memorable moment of your career so far?

and helping social entrepreneurs and disadvantaged young people fulfil their potential.

Q. If you could spend one day in a different job, what job would you choose? A. A master vintner!

Q. Looking back, do you have any regrets? A. Absolutely nothing. Although, I must admit it was difficult giving up my convertible! [laughs]

Q. What is your vision for your career over the next 5 years?

A. Leaving behind a successful career in law after 14 years to pursue a new challenge, which was daunting and exhilarating in equal measures! The decision was made pre-recession, so financially it made no sense. Most people thought I was insane for giving up a successful, well-rewarded law career for charity, but those who knew me realised I would be crazy not to make the change.

A. To continue my adventure in venture philanthropy within Inspiring Scotland. I feel like I have found my natural home here. I am a people person and I am lucky enough to spend my days with a host of interesting and successful individuals.

Q. What is your inspiration?

A. Life is not a dress rehearsal, so do some soulsearching and realise what you want to achieve, doing what is right for yourself, not others. For me, the realisation that you can have more than one career was important, so if you need a change – make it happen. Be bold and go for it!

A. The desire to make a difference with my life.

Q. If you could make one change to improve your professional life, what would it be? A. That all financially successful people were intrinsically philanthropic!

Q. What do you adore most about your current role? A. Making a difference to the lives of others – fulfilling the philanthropic ambitions of investors

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Q. What is your top tip for our readers to help them achieve their career goals?

Q. In three words, what qualities are necessary to be successful? A. Determination, integrity and vision.

D Family

Pre-Nuptial Agreements Pre-Nuptial Agreements have been in the news a lot recently, particularly in relation to some high profile – “Big Money” – English cases. At the end of last year, The Supreme Court issued its judgment in the eagerly awaited case of Radmacher v Granatino. Ms Radmacher is a German heiress who was married to Mr Granatino, a Frenchman. When they divorced in England, he was awarded almost £6 million. She appealed, because they had signed a Pre-Nup which provided that, on divorce, neither would make a claim against the other. Her very wealthy father had insisted on this. The Court of Appeal agreed with her and said that, whilst he shouldn’t get nothing, the award in his favour should be very much restricted. He appealed that decision to the Supreme Court and the Supreme Court refused his Appeal. It didn’t exactly enforce the Pre-Nup but it said it wasn’t to be disregarded – it was to be given “decisive weight”. In other words, it was a significant factor, primarily because the parties had entered into it voluntarily and intended it to have effect. The decision was widely reported as meaning that Pre-Nups were, for the first time, to be enforced in England. That’s not strictly what the court said, but it did go further than an English Court has ever gone before, towards recognising the significance of a Pre-Nup.

By contrast, here in Scotland it is widely accepted that Pre-Nups are enforceable, provided that they are fair and reasonable at the time they are entered into. In fact, we have a long tradition of Pre-Nups. In the 18th and 19th centuries, they were used to avoid the normal consequences of marriage, when wealthy fathers wanted to ensure that their daughters’ property didn’t automatically pass to their sons-in-law.

The ring-fencing sort of Agreement is particularly useful in situations where one party to the marriage has a lot more than the other. It might be family money, they might be in a family business or they might have been married before and want to preserve assets for children of that first marriage. We are very regularly asked to advise about this sort of Agreement. Succession to a family business is something which our Families in Business Team can give expert advice on and a Pre-Nup may be an important part of that succession planning.

In Scotland (and indeed elsewhere), the two most common things for Pre-Nups to do are as follows: Firstly, to ring-fence certain assets, thus excluding them from the matrimonial property which is to be divided on divorce.

Finally, it is important that we remember that Pre-Nups should be treated as sensitive issues. To lots of people, the very idea of a Pre-Nup is, at best, unromantic. If you are contemplating one, the sooner it is discussed the better.

Secondly, to make specific provision for what one party should receive in the event of separation or divorce. (Michael Douglas and Catherine Zeta Jones reportedly have an Agreement which contains a penalty clause which requires him to make a payment of $1 million for each act of adultery…)

SURVIVAL GUIDE TO SEPARATING AMICABLY Our survival guide to separating amicably gives a simple steer through the different ways to deal with the breakdown of a relationship. The little booklet will help to ease what can be an emotional and stressful affair by giving you the information you need to arrive at a positive outcome. To download a copy, visit www.todsmurray.com/familylaw

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LUCY METCALF SENIOR ASSOCIATE T: 0131 656 2310 E: Lucy.Metcalf@todsmurray.com

Client Focus D

Building A Legend James Thomson began his journey on the path to success in 1979 when he opened the first of his world-famous restaurants, The Witchery by the Castle. Since then, he has been building a legend of unadulterated excellence that continues to set the bar for the hospitality industry nationwide.

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D Client Focus

Born and educated in Edinburgh, James took his inspiration from the entrancing 17th Century surroundings where he spent his younger years at George Herriot’s school, set in the backdrop of Edinburgh’s charming Old Town, which would later become the heart of his empire.

alling in love with the hospitality world after gaining experience working in The Edinburgh Crawford Tearoom’s, James became the youngest licensee with the transformation of a 16th Century basement on Castlehill into a gourmet star standing proudly in the shadow of Edinburgh Castle, now known as The Witchery.

The Witchery Being limited to a low budget for the decoration of his first restaurant, James swayed towards furnishing it with antique instead of new, which led to the creation of an enchanting atmosphere that would attract visitors from the far corners of the earth. Today, people flock to The Witchery to experience the unique mix of an historic, flamboyant ambience combined with fine dining and first class service. Little did James know, that these would be common threads that would follow him through his journey of successful business ventures. Ten years after the Witchery opened, the demand for bookings was so great that James decided to expand, and in 1989, a new restaurant called The Secret Garden was formed on the grounds of an abandoned playground adjacent to The Witchery. Using discarded architectural materials for the structure and interior of the restaurant, James continued his trademark interior design in this restaurant too, which soon became just as popular as The Witchery itself.

The Witchery Suites With a base of celebrity clientele and many loyal local customers, James had a longing to offer his guests something more. This desire gave way to the birth of the utterly extravagant Witchery Suites. Luxury accommodation that can be described as none other than magical, all eight suites are discreetly nestled into the historic buildings above and adjacent to The Witchery. In a setting steeped in history and tales of times gone by, each suite has its own bespoke character that oozes decadence from each and every carefully carved nook. Each den of indulgence is lavishly draped in sumptuous materials and decorated in only the finest of antique furnishings, with each piece perfectly placed to finish the suite.

gathering a star-studded collection of awards along the way, including the AA Wine Award for Scotland, a Michelin entry, a Good Food Guide Listing and Wine Spectator Awards of Excellence.

It really is no wonder that Cosmopolitan Magazine named The Witchery Suites as one of the seven hotel wonders of the world and Scotland’s most romantic hotel, to join an ever-expanding collection of honours and accolades.

The Tower has now earned a reputation for being one of the must-see destinations in the Scottish capital. With fine dining, stunning castle views and an elegant contemporary style, the rooftop restaurant has made quite an impression since its arrival on St Andrew’s Day 13 years ago and now has a varied fan base, ranging from locals and tourists to politicians and celebrities.

The Tower

Restaurateur to Hotelier

By 1998, when The Witchery and The Secret Garden were attracting 100,000 guests every year and nearing capacity, James was tempted by a rare opportunity crossing his path. Expanding his portfolio from historic property on Castlehill into the contemporary Museum of Scotland, he created the first, world-class, rooftop museum restaurant, The Tower. The Tower paved the way for the unique blend of Scottish tourism and fine dining,

Always one to grab an opportunity with both hands, James was delighted to be approached by the owners of Prestonfield House in 2003, when they were looking for a buyer for the A-listed Edinburgh Mansion where he had worked as a student waiter in the 1970s. The property had not been on the open market since 1687, making this an invitation that had to be accepted. James bought the hotel and carried out a multimillion pound transformation that would see Prestonfield become renowned the world over for its high standard of service, accommodation and wonderfully extravagant surroundings. Rhubarb, the most opulent destination restaurant to come from the James Thomson collection yet, was formed within Prestonfield.

Prestonfield Refurbishment

The Witchery

The refurbishment brought the hotel back to its original glory and then some. Keeping many of the original contents allowed the creative team, spearheaded by James himself, to maintain the everpresent character and soul of Prestonfield.

The Witchery

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Client Focus D

Service Excellence Quality of service is taken very seriously throughout the James Thomson collection, with each guest being treated with absolute excellence. Taking inspiration from the Walt Disney approach to customer care, James encourages staff trips to the Disney Institute in Florida to learn the valuable lessons set there and he continues to invest in his staff carefully, empowering each member to continuously exceed expectations. Encouraging his team to develop long-term careers within his company, the staff turnover is admirably low, with many staff staying for the long term. This approach has led to The Witchery being the first independent restaurant in Scotland to achieve Investors in People status.

The Tower

You can design and create, and build the most wonderful place in the world. But it takes people to make the dream a reality. Walt Disney Eight days before the re-opening of the hotel, the team was given the go ahead to re-instate the cupid ceiling, above the entrance, which was fully repaired and re-guilded to its original splendour, as it would have been seen in 1687. Furnishings ranging from the leather panels in the leather room to the Mortlake Tapestries in the Tapestry room were kept and now play their own part in making Prestonfield what it is today. Today, the five-star Prestonfield is a theatrical world of antique luxury combined with cuttingedge contemporary fittings, making a stay here everything you could ever hope for from one of Scotland’s finest hotels. From the moment you enter the hotel, there is a familiar mood of charmed decadence that clearly spells the signature of a James Thomson venue. Each room has been carefully planned with the most precise attention to detail, so much so that every door opens up to an art collection of its own, overflowing with treasures. Every last ornament and lamp to grace Prestonfield with its presence has its own story to tell, each contributing to the indulgent ambience that flows between the 16th Century walls.

The James Thomson Stamp Prestonfield completes the collection of venues to be blessed with the James Thomson stamp of style, class and quality – a stamp that is unrivalled by any other hotelier or restaurateur. Behind this hallmark of success is a visionary sense of innovation, creativity and customer care.

Innovation The first in his arena to combine food and drink with utterly unique surroundings and lavish decor, James perfected this blueprint with The Witchery and rolled it out across each individual enterprise. An early investor in online booking websites and EPOS systems, James has always been a leader in his field and continues to storm the path in Scottish tourism and hospitality.

His passion for customer service involves him in the promotion of Scottish tourism on a global scale and has also led to his endowment of the James Thomson Award for Excellence in Customer Service, which is presented annually to hospitality students at Edinburgh’s Telford College.

Vision The journey of James Thomson so far is none other than astounding, flooded with an array of awards, of which there are too many to mention. Perhaps one of the most notable was when his was the only Scottish or hospitality-based company elected to the BT Vision 100 Index of the UK’s most visionary organisations. Following in the footsteps of his inspiration, the legend built by James Thomson began with vision and has been brought to life by his commendable approach to his customers and his dedicated commitment to his team.

A Personal Approach Today, James continues to pay personal attention to each of his properties on a regular basis, visiting each to make finishing touches and ensure the standard is being kept at optimum levels. James says, “I’m passionately attached to them all and visit them each day. Just as with children, you could never choose a favourite but there are times when one or another needs a little more attention.”

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Prestonfield

D Banking & Finance

Ethical Finance “Reputation, reputation, reputation! O, I have lost my reputation” laments Othello, and while the world at large seeks to grapple with the near unimaginable scale of the financial losses emerging from the banking crisis, the banks themselves may come to think that the greatest loss of all is indeed, their reputation. There is certainly ample evidence that the public and business communities’ view of banks and bankers has fallen to its lowest ebb since the days of the Great Depression, if not since the bank crashes of the 19th century. To those seeking to escape the financial maelstrom, the words “ethical finance” may appear as a lifeboat amid the turbulent waters. It is undoubtedly the case that the events of the last few years have given the concept a new prominence, so it is perhaps timely to ask what the ethical finance world currently has to offer the business community.

general awareness of the concept first emerged in the 1970s and 1980s, largely in the area of ethical investment. At that stage, the approach was primarily a negative one, screening out the financing of activities deemed undesirable. The campaign against companies operating in South Africa during the apartheid era was perhaps the classic example.

The concept is challenging to define and is perhaps best seen as an umbrella term for an approach, whereby financing and investment decisions look to a range of social and environmental criteria, in addition to the purely financial, as a measure of outcome. Although its roots lie much further back,

From the 1990s onwards, the focus has increasingly shifted towards positive criteria in financial decision making. Rather than a model whereby institutions were free to act as they thought commercially best, provided areas deemed immoral or antisocial were avoided, bodies have

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emerged with the specific purpose of providing finance for activities considered socially desirable. This idea is older than may first appear. When General Booth established the Salvation Army in 1890, one of his first decisions was to open its own bank with strict ethical investment criteria (it still exists today, as the “Reliance Bank”). Within the UK, two current business models can be found in the Co-op Bank and Triodos Bank. With its roots in the co-operative movement of the 19th century, the Co-operative Bank has long prided itself on its reputation as an ethical organisation but it is only in recent years that it has made this a central part of its message.

Banking & Finance D

In 1992, it introduced an “Ethical Policy” covering issues such as human rights, ecological impact, international development, animal welfare and social enterprise. The Policy still contains aspects of the negative approach to ethical finance – a blacklist of business activities which it will not fund – but also takes the positive approach – a plan for the promotion and furtherance of certain ethical goals. Since the Policy was introduced, the Co-op Bank has withheld over £1bn of funding from businesses engaged in what it labels socially undesirable practices. In spite of this, the Bank’s business lending has still managed to increase and it is interesting to note that, over the past three years of general financial upheaval, its commercial lending has grown by some 40%, bringing its total to almost £9bn.

The way in which Triodos funds its own business also sets it apart from its competitors. Its lending is financed exclusively by customer deposits, with no involvement from the wholesale markets. Undoubtedly, this gives a large measure of stability in turbulent financial times, but does it not also limit the potential for business growth? Not so, accordingly to Triodos, which increased its lending by 100% in the course of the last two years and now provides £1.5bn of loans to charities and social enterprises. In keeping with its policy of transparency and openness, a full list of all the organisations to which Triodos has lent money is published annually on its website – again, it claims this does not have the off-putting effect on its target audience that one might have expected.

While broadly following a conventional retail banking approach, with a broad base of retail and corporate depositors, the Co-op Bank finances much of its lending from customer deposits, supplemented by wholesale funding from the markets. A funding model which is less reliant on interbank lending reduces the Co-op’s exposure to liquidity problems in the money markets. One does not need to look too far back to recognise the advantages of this approach. After all, over-reliance on finance from the wholesale markets was one of the key factors in the initial “credit crunch” stage of the financial crisis, with its attendant scenes of anxious depositors queuing to get their money out of hitherto “safe houses”.

Developments in ethical finance have coincided with the rise of the green movement and a major part of the sector is now concerned with issues of the environment and sustainability in general. Significant funding gaps remain however, given the inherent sectoral limitations on some of the sources already outlined. To take one area of topical interest, renewable energy projects have often had limited success in securing funding from the private sector, as the combination of large capital expenditure at the outset (often coupled with unproven technological aspects) and little income in the early years, can make for an unattractive lending proposition.

Triodos’ policy is to actively seek businesses and charities which are “working to make the world a better place” A more radical approach can be found in Triodos Bank. Founded in the Netherlands 30 years ago, it is a relative newcomer to the British banking scene, having arrived in the UK in 1995. It claims to have a unique banking model, which is 100% “positively” ethical. Rather than screening out companies whose activities appear on an ethical blacklist, Triodos’ policy is to actively seek businesses and charities which are “working to make the world a better place”, such as organic farms, housing associations, renewable energy companies and fair trade manufacturers. Those unable to demonstrate a sustainable business model need not apply.

The coalition government’s plans for a Green Investment Bank (GIB) aim to plug this gap in the market. There is a growing consensus that, if the GIB does get off the ground, it will need to be well funded if it is to be of real assistance in enabling Britain’s renewable energy industry to compete internationally. In these times of austerity, public money alone will not be able to provide the necessary capital for the GIB, so the case for it to have powers to raise finance through issuing “green bonds” and other debt instruments seems strong. However, as political wrangling continues over the capitalisation of the GIB and

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the extent of its borrowing powers, it remains to be seen whether it will yet become a reality and, if so, whether it will have the scope to make a significant impact. While the “green agenda” has tended to dominate the debate of late, there has been an interesting resurgence too of the faith-based lending which was a significant part of the movement’s earliest roots, in the shape of Islamic finance. While this may not generally be perceived as falling under the “ethical finance” heading, it does in fact, share many of its features. Thus it has both the negative screening concept of prohibited territory such as alcohol or pornography and also positive requirements, in that any Islamic finance transaction has, in principle, to carry an element of social benefit. Provided these broad tests are met however, Islamic finance can be applied to any sphere of economic activity. Given the huge potential extent of available petrodollar liquidity, Islamic finance should perhaps be borne in mind as a possible option for those seeking new funding sources which pass the ethical test, and for those who may not fit into the constituencies served by funders focused on more specific issues. Looked at as a whole therefore, the current ethical finance world presents a broader front and higher profile than at any time past. Its constituent parts have their limitations, whether as to the markets they serve, the scale of their operations or from broader considerations of culture and perception. As social and environmental issues loom ever larger in the sphere of corporate governance and reporting however it seems inevitable that these considerations will feed back into business funding arrangements with increasing frequency. It may be that, over time, we will come to see the banking crisis as sealing the place of ethical finance in the financial mainstream.

Graham Burnside Partner T: 0131 656 2272 E: graham.burnside@todsmurray.com

Well Rounded View

Scotland had chosen its own destiny, and from now on it could look after itself

Magnus Linklater is Scotland Editor, columnist for The Times of London and author of this Well Rounded View. Tods Murray understand how important it is for lawyers to have a well rounded view.

ournalists have a bad habit of hoarding their old cuttings. I have a friend, moving to a smaller house, who realised he would have to dispose of his volumes of ancient articles, written over a lifetime in the profession. They amounted to 1,400 articles and 500,000 words.

Tories, with Nicholas Fairbairn and Donald Findlay on the back benches. OK, but I got David Steel as Presiding Officer right.

His family advised him to dump them in a skip. “No one will ever want to read them,” they said comfortingly. He couldn’t quite bear to part with them however, and persuaded his newspaper to put them on a memory stick. Somehow, he felt, that summed up his life. Everything reduced to a little device, half the size of a matchbox. “And no one will want to read that either,” he thought. “But at least it’s there.”

Then came devolution, and something odd happened. The interest dried up. From a point where almost every offering was accepted, the agenda moved on. Scotland was yesterday’s story, and it became increasingly difficult to interest London in anything other than the odd quirky piece about a single teacher school in the Hebrides, or the revival of an ancient haggis-throwing competition in the depths of Dumfriesshire.

My freelance volumes don’t quite match that. They go back to the early 1990s when I first started writing for The Times after I stopped editing The Scotsman. “We want to know what’s going on in Scotland,” said my then editor, Peter Stothard. “It’s a bit of a foreign country, but we are interested.”

This is not just about The Times, of which I am proud to be Scotland Editor. Most other national papers experienced the same phenomenon.

And so they were. I wrote regularly on matters as wide-ranging as the Scottish judicial system, the international appeal of the kilt, the future of grouse, the possible scrapping of the night sleeper to Fort William, the nationalism of Robert Burns, and the prospects for devolution. I even imagined what a future Scottish Parliament might be like. I posited George Robertson (now Lord Robertson of Port Ellen) as leader of the Scottish Labour Party, and Ian Lang (Lord Lang of Monkton) for the

In those days, I sometimes squeezed three articles a week on Scotland into the main edition of the paper. There was an apparently limitless appetite.

Scotland had chosen its own destiny, and from now on it could look after itself. Scottish stories were routinely dumped for main editions. Only occasionally – the Glasgow terror attack, Peter Tobin, Tommy Sheridan, the Lockerbie bombing – did it impinge on the national consciousness. So far had Scotland drifted off the map, that it sometimes appeared that a small earthquake in Chile (no one hurt) was of greater interest in London than the wholesale reform of the Scottish legal system, or the election of a minority government at Holyrood.

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Well Rounded View

DIVIDE

I find this one of the more unexpected, and disheartening, outcomes of devolution, and I cannot quite explain it. That Scotland should have disappeared into a distant mist for most people south of the border is not just a loss for those who still believe in a United Kingdom, it is a diminution of our culture. Take poetry. The death of Edwin Morgan, one of the commanding literary figures of the late 20th Century, meant little in the English media, not because his poetry was under-rated by the critics or his fellow-poets – “his courage as a man and his constancy as a poet only seemed to increase with age,” said Seamus Heaney – but because he was Scottish. Save for the Edinburgh Festival, little of Scottish cultural life impinges on the British scene. A political revolution in a whole range of social policy north of the border takes place without any of the lessons being noticed, let alone learnt. The current debate on proportional representation at Westminster is conducted as if it was entirely new to Britain; the fact that it has been practised at Holyrood for more than ten years comes as a surprise to most commentators. Legal institutions like the Children’s Panel – way ahead of anything in England – are ignored.

Minimum pricing in alcohol, fiercely debated, if rejected, in Scotland, is now being introduced in England, but the arguments are conducted as if they were entirely new. One could go on. This is not meant to be a Scottish whinge. In many ways it is refreshing that we can have a national debate here without having to heap the blame on Westminster when things go wrong, or refer final decisions to the Commons or the Lords because that is where power lies. We are a healthier democracy, in my view, because politics have been decentralised, and no one would wish to reverse a constitutional experiment which is still evolving. But I cannot help thinking that something has been lost in the process; that the diversity of a United Kingdom, with which writers, politicians and the public have been familiar for centuries, has been reduced as a result, to be replaced by a more narrow, metropolitan-centred view of the world. I believe that is a loss to us all. Britain has become a diminished country, and the semi-detached state of Scotland a lesser place.

For more information please visit www.todsmurray.com/wellrounded

Britain has become a diminished country, and the semi-detached state of Scotland a lesser place.

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D Green

DO CELEBRITIES INFLUENCE

GREEN BEHAVIOUR? Do Cheryl Cole, David Beckham or even Boris Johnson encourage you to consider climate change issues? Perhaps you find Arnold Schwarzenegger, Bill Gates or Al Gore more influential.

esearch published in connection with Climate Week finds that these celebrities are amongst those most likely to inspire us to take action in the battle against climate change. Climate Week is an initiative designed to celebrate green achievements already being made throughout the UK. Its aim is to help inspire and motivate us all to become more environmentally active, and this research suggests the power of the celebrity can do just that. It highlights a link between ‘familiarity and green influence’, meaning that popular celebrities can have a huge impact on a person’s own green agenda and that encouragement from celebrities may be the motivation we need to take steps to combat climate change. However, are we really living in an era where we need television and celebrities to take action before we are inspired to live our lives in a more environmentally conscious manner? Channel 4’s ‘Big Fish Fight’ has recently sparked considerable interest and support for a change to the laws surrounding discarded fish. This television campaign has significantly raised public awareness of diminishing fish stocks and the need for sustainable fishing – it appears that giving such campaigns sizeable exposure in the media can substantially increase interest and inspire the public to consider issues that they were not previously familiar with. Spearheaded by Hugh Fearnley-Whittingstall and supported by celebrity chefs such as Jamie Oliver, Gordon Ramsay and Heston Blumenthal, Channel 4’s campaign is another example of the influence of celebrity on the public conscience. However, discarded fish and fishing quotas are not new problems. Work has been ongoing for years in the fight for changes to the Common Fisheries Policy, but it has taken a television channel and celebrity chefs to bring this campaign to the forefront of the public agenda.

British environmentalist, Tony Juniper, disagrees with the power of the celebrity, arguing that peer influence is more likely to change attitudes to environmental issues. “Psychologists have documented how things actually going on around us have far more of an impact on our behaviour than being told what to do, or having statistics repeated at us,” he stated in a recent article in the Guardian. Peer pressure will undoubtedly play a part in tackling climate change as we strive to follow the social behaviour of our friends, but it seems that the media and the sway of popular celebrities will also be influential in creating a more environmentally aware society, helping the UK achieve its ambitious target of reducing carbon emissions by 80% by 2050.

Hugh Fearnley-Whittingstall and other celebrity chefs have brought fish consumption to the forefront of the public agenda.

The Tods Murray Green Team is a collaboration of dedicated Environment & Climate Change, Planning & Development and Renewable Energy specialists, who together seek to share ideas and assist in driving forward Scotland’s green economy. For more information, please visit www.todsmurray.com/greenteam

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Legal Focus D

SOCIAL MEDIA In 2009, the Constitutional Council in France ruled that access to the internet is a fundamental human right. Whilst the UK Courts have not gone that far (yet), social networking has infiltrated Scottish Courts and many lawyers have been left wondering where social media fits in to the legal process, if at all. Jurors have increasingly been found updating their social media pages with the Court events. One woman in England, who couldn’t decide on a verdict in a child abduction and sexual assault case, sought help through the medium of Facebook. She posted the details of the case and invited her friends to help her decide whether the people accused of the crimes were guilty or not, stating “I don’t know which way to go, so I’m holding a poll”. Furthermore, a female juror in the infamous Tommy Sheridan perjury trial posted confidential details, including information about how jurors voted, and her own opinion of the trial, on Facebook. Jurors can add witnesses as “friends” on Facebook and carry out their own online investigations by googling the accused, google mapping the scene of the crime and reading press coverage surrounding the case. Recent findings from the Ministry of Justice showed that 668 jurors in 68 cases could recall media coverage of their case. Such actions could be detrimental to the outcome of court proceedings. Exposing jurors to online information that may be factually incorrect or biased can unfairly influence the verdict. Current UK legislation states that it is a contempt of court for jurors to disclose their opinions or discuss how a decision was reached, in order to ensure the verdict can be considered fair. However, this legislation has yet to catch up with social media. Lord Macdonald, the former director of public prosecutions, recently suggested that judges were “giving up” trying to prevent juries using Google, Facebook and Twitter to access information about those accused of crimes. However, it appears that judges are beginning to embrace social media. During the Tommy Sheridan trial, Lord Hamilton, Scotland’s most senior judge, allowed the media to “tweet” for the first time in a Scottish Court. This juror online communication problem has yet to be addressed by the Scottish Courts. The answer may be increased juror awareness regarding the penalties they could face if they discuss the case on social networks or if they carry out their own investigations. The consequences of a juror having special knowledge can result in the discharge of that juror (or the whole jury), financial cost of retrials and recalling witnesses, victims and defendants, not to mention the prospect of a trial being found to be flawed long after a verdict has been given. We live in such an information age that it is difficult to escape new coverage or social networking involving high profile cases. However, the impartiality of the Courts has to be maintained.

Women on BOARDS At the end of February, the Davies Report into “Women on Boards” was published. Instigated by the UK Government to look into the lack of female board members on the UK’s listed companies, it acknowledged that, “At the current rate of change, it will take over 70 years to achieve gender-balanced boardrooms in the UK”. The recommendations contained within the report are clear, short-term, and measurable. By the autumn we will be able to see whether companies are taking them seriously. It has to be hoped that this will be the case and, whilst the recommendations concentrate on the FTSE 100 and FTSE 350 companies, once these organisations take the lead, that others will follow. These developments are being followed and discussed amongst the members of our Tods Murray “Women in Business” Network. Four years ago, we set up the networking group. Our research found that this was what women in businesses wanted. In 2010, we commissioned new research on the topic of “Women and Leadership”. We joined together with insurance broker and risk adviser, Marsh, to survey successful business women and the findings were presented at our “Women in Business” leadership debate – Scotland – 2010, held on 21 October, last year. Our guest speaker was Susan Rice, Managing Director of Lloyds Banking Group, Scotland. The results of this research can be viewed on the Women in Business Network section of our website: www.todsmurray.com/womeninbusiness

Naomi Pryde Solicitor | T: 0131 656 2163 | E: naomi.pryde@todsmurray.com

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D News

We Advise EDINBURGH TATTOO SPONSORSHIP We are proud to be the first new corporate sponsor for the 2011 Edinburgh Tattoo. Opening on 5th August 2011 in its new £16m arena, the Royal Edinburgh Tattoo is now responsible for adding £88m to the Scottish economy.

Lenders in UK’s Largest Fire Services PPP

Our Capital Projects Team here at Tods Murray had the pleasure of acting for Dexia Credit Local and Norddeutsche Landesbank Girozentale in a deal which will see infrastructure services business, Balfour Beatty, design, construct and provide facilities for 16 community fire stations for North West Fire and Rescue Services. The 25-year concession has a capital value of around £48m and involves three procuring local authorities, Cumbrian County Council, Lancashire Combined Fire and Rescue Authority and Merseyside Fire and Rescue Authority.

Our sponsorship is earmarked for the programme that accommodates visiting VIPS and dignitaries who attend the Tattoo from all over the world. Good hospitality helps to enhance the reputation of the Tattoo worldwide and ensures that the event, and Edinburgh, continues to attract a global audience.

Phased construction of the fire stations is now due to begin and, as well as modernised operational facilities, the stations will provide resources for community use, such as meeting rooms, multi-function lecture rooms and gyms. All construction work is scheduled for completion by 2013.

Tods Murray has acted for the Tattoo for over 20 years and believes that sponsorship is a natural development of its long term relationship. Executive Partner, David Dunsire said:

Partner, Stephen Colliston, led the team, which brought together finance, commercial property and capital projects expertise. Stephen said:

“The Royal Edinburgh Tattoo is one of the world’s most spectacular and exciting events and we are delighted to lend our support in the form of a corporate sponsorship. It is hugely important that the event continues to grow and develop, as it is a showcase for Edinburgh and Scotland. Our part is to help ensure that we use the event well, to welcome overseas guests and that the Tattoo has an impact beyond one month in August.”

Core Scholarship Awarded to Harriet Murray

“ This has been a complex, multi-authority project and is significant as the UK fire services’ largest PPP project to date.” “ The stations will be constructed on a mixture of new and existing sites in a range of locations, from rural stations with retained crews, to busy inner-city stations with full-time crews. These improved community facilities are vital and will deliver faster response times.

Harriet Murray has been awarded Core Solutions’ Young Mediators Scholarship. Harriet, a solicitor working in the Wills, Trusts and Executries Team, was announced as the winner at Core’s 10th annniversary dinner at The Hub, attended by 130 people. Core’s Pamela Lyall said:

“ Within what turned out to be a tight timeframe, our team was instrumental in bringing this market leading deal to a successful completion. The transaction called on our banking lawyers to assist with some complex finance issues, our property lawyers to work through 16 complex titles and our capital projects lawyers to ensure all funding related legal diligence was pulled together and processed in time for close.”

“Harriet’s application showed commitment to mediation and a good understanding of its important role in problem-solving.”

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News D

Acquisition Deal for US Technology Firm Acting for US technical engineering and manufacturing group, Probe Holdings, Tods Murray has successfully completed a cash and equity transaction for the acquisition of Aberdeen-based Sentergy. Our Corporate Team advised on the terms of the acquisition, with a particular emphasis on intellectual property matters, and provided additional support from the Firm’s Employment Team to ensure that Sentergy’s knowledge and skill-base stayed within the acquired company. The acquisition negotiations were completed in six weeks. Over the past eighteen months, Probe Holdings has acquired a number of technology companies as part of a strategic plan to create a world class portfolio of innovative oilfield tools. It is hoped that other acquisitions in Scotland and the UK will follow.

This has been a very positive, forward looking transaction and we are delighted to have played a part.

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RSPB & Ardmore Whisky Tasting Event Tods Murray ran a joint event with the RSPB and Ardmore, held in Tods Murray’s Edinburgh office on 17 February. The evening was in support of the RSPB’s East Coast Sea Eagle reintroduction programme and included a whisky tasting experience and sensory exploration of the finest single cask, single malt whiskies Ardmore offers. Many of the Tods Murray team were spotted enjoying a dram or two on the evening. 01. Alex Hill, Met Office and Courtney Peyton, Thirdwave 02. Martin Thurston Smith, Tods Murray and Gregg Wilkie, RSPB 03. Stuart Rowson, Tods Murray 04. Mark Stewart, Baker Tilly and Malcolm Holmes, Tods Murray 05. Ian Price, RSPB and Rory Crawford, RSPB 06. Peter MacLaren, Levenseat Recycling Limited 07. Malcolm Combe, Tods Murray

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Partner, Alistair Burrow, commented on the acquisition deal. He said, “Sentergy and Probe are an excellent fit, with the combined companies forming a strong technical base. Probe’s strategy revolves around developing a portfolio of innovative technical tools and systems that it can take to the global oilfield service sector. Sentergy is a young, dynamic organisation which develops sophisticated tools. For that reason, securing the intellectual property and knowledge assets for the acquired company was crucial. This has been a very positive, forward looking transaction and we are delighted to have played a part.”

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07.

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DISPATCHES

Glasgow City Council’s first Legacy Progress Report was published in January 2011. It describes Games contracts worth £158 million put out to tender – and the local businesses that have won 42% of the work. Then there are the Commonwealth Apprenticeships, awarded to 900 school leavers in 2009. Plus a further 700 placements given to pupils who left school in 2010. By the time the Games begin, the Commonwealth Games Jobs Fund will have helped to create 1,000 jobs in small and medium-sized enterprises.

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Glasgow will welcome the sporting elite for 11 days of competition, beginning on 23 July 2014. But hosting Scotland’s largest ever event is just the beginning of the city’s Commonwealth Games story. The huge promise of the Games goes well beyond Scotland’s hopes of winning gold on home turf; the event will leave a legacy that will long outlive the Glasgow 2014 celebrations. In fact, local people and businesses are already beginning to see the long-term benefits of bringing the Games to Glasgow.

On 14 March 2011 – Commonwealth Day – more than 750,000 people across Scotland donned their trainers to show their support for Glasgow 2014. Following the success of the inaugural Sport Your Trainers day, the event will take place annually in the run up to the 20th Commonwealth Games – to remind people from all walks of life about the sporting action that’s right around the corner.

dl Juiath glo in po Tr x ter BoWa

Now that the clock is ticking down to London 2012, it’s time to see how Glasgow is preparing for the UK’s second sporting event of the decade. The 20th Commonwealth Games follows swiftly on the back of the Olympics, with the Celtic Park opening ceremony just a little over three years away.

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D Planning

Planning D

A legacy for future generations

More than a million people are expected to cross the threshold of the Scottish National Arena each year. Up to 3,000 people will be employed in the construction of Glasgow’s grandest venue between now and its completion in 2013. The 12,000-seat arena is set to become one of the world’s top five arenas attracting yet more people to Glasgow for major conferences, exhibitions, shows and other memorable events. From the moment NISA is complete, and for long after the Games are over, the local community will be able to use the indoor arena for basketball, netball, volleyball and similar activities. Supporters of the Glasgow Rocks pro basketball team and the Glasgow Wildcats netball team can also look forward to watching home games at NISA. The velodrome will be one of Europe’s largest sports facilities and, like NISA, will be open to the public as well as the professionals.

The changing face of the city

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For the duration of the Games, around 6,500 participants and officials from as many as 71 nations will stay in the athletes’ village. Guests will be greeted by a typically warm Glaswegian welcome, and at the same time Scotland will have the chance to demonstrate its commitment to sustainable living. Each energy-efficient home will be constructed from sustainable materials and emit 60% less carbon than a typical property. It’s hoped that every home on the site will attain a BREEAMS EcoHomes rating of ‘Excellent’ or an equivalent award.

Scotland’s bid for the Games was successful, in part because of Glasgow’s already strong sporting facilities. 70% of the venues required for 2014 are already in place. Nevertheless, the budget for staging the Games is £454 million, and capital investment in infrastructure, the upgrading of existing venues and the construction of new facilities will leave a lasting mark on the city. The transformation of the city’s East End, the focal point of the Games, is well under way. The scheduled date for work to begin on the Scottish National Arena has just passed, and the National Indoor Sports Arena (NISA) and Sir Chris Hoy Velodrome, where badminton and cycling events will be held, is swiftly taking shape. Meanwhile, planning permission was granted in September 2010 for the first phase of construction of the athletes’ village. This allows work to commence on an initial 700 homes at the riverside development in Dalmarnock.

Achieving the planning permission for phase one of the athletes’ village is a key milestone for the partners behind Glasgow 2014. The village is set to make the greatest impact on the city, by breathing new life into what’s currently a rather neglected site, and the building of the village should lead to the creation of at least 90 new jobs. Once all phases of construction are complete, and the temporary structures erected for the Games have been dismantled, the permanent riverside development will boast some 1,100 private homes, a further 300 rental properties and a 120-bed care home for the elderly.

All of the sporting venues will be within 20 minutes’ travel of the athletes’ village, making for a more manageable Games experience. An extension to the M74, known as the East End Regeneration Route, will further help to reduce the time spent trekking between venues. The motorway extension is expected to be complete by mid-2011.

It’s not the first time the Commonwealth Games have come to Scotland. Edinburgh hosted the Games in 1970 and again in 1986. The legacy left by those events included the Royal Commonwealth Pool and Meadowbank Stadium. But with all the activity that’s already going on by the Clyde, and nearly 50 legacy projects in total planned, it looks like Glasgow 2014 may well leave a legacy that’s more far-reaching than either of its predecessors.

The activity around Glasgow 2014 led to the city being short-listed, for the first time in 2010, by the Ultimate Sports Cities Awards. Glasgow is now considered a leading sports host, ranking 11th globally.

is n y e Ten k

EXPERT INSIGHT

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In the current financial climate against a background of complex and radical planning reform, playing host to the 2014 Commonwealth Games will do no harm to Glasgow’s international status. The balancing act of giving the economy the stimulus of development activity required, whilst ensuring land use and the built environment is properly and sustainably managed, will make Glasgow’s new legacy a lasting one.

Elaine Hunter Partner T: 0141 243 4582 | E: elaine.hunter@todsmurray.com

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D Charity

SCIO The New

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April 2011 saw the arrival of SCIO (the Scottish Charitable Incorporated Organisation). This new entity designed for charities is created under the Charities and Trustee Investment (Scotland) Act 2005 (“the Act”). A SCIO will have legal personality, just like a person or company, and will provide limited liability for members and those acting as its Trustees. OSCR will be the sole regulator of SCIOs. If charitable recognition is withdrawn, the SCIO will cease to be a SCIO, which may have far reaching consequences. The Act, read together with the proposed general regulations, provides a framework for the constitution of a SCIO, but it will be for those promoting the SCIO to adopt a compliant constitution, and satisfy the charity test in the Act. SCIOs will likely be required to hold an annual meeting. Resolutions will require members’ meetings (where a two thirds majority is required for a resolution). The alternative is the support of 100% of members, if a meeting is not held – a much higher hurdle.

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Controversially, a solvent SCIO can be wound up by its Trustees rather than by an Insolvency Practitioner, as required for a Company. An insolvent SCIO will be wound up on the application of either the Trustees or a creditor and it is proposed to utilise the provisions of the Bankruptcy (Scotland) Act 1985 for sequestrating a body corporate. This contrasts with individual or corporate insolvency where a creditor has to petition the Sheriff Court to sequestrate or wind up. Disputes about a creditor’s right to make the application will lie with the Accountant in Bankruptcy when deciding whether to award sequestration. SCIOs are expected to appeal to small, unincorporated charities, but provision is also made for companies and provident societies to convert. SCIOs must maintain up to date registers of their members and Trustees and maintain (for five years) a register of former members and Trustees. Copies of all of these will be available to the public on request. OSCR has indicated that SCIOs must be both workable and credible. Whether the draft regulations will achieve credibility remains to be seen, but, given responses to OSCR’s 2010 Public and Charity Trustee Surveys, the jury is still out on whether the new form will be attractive to smaller, unincorporated charities. It will be interesting to see just how many SCIO applications are made to OSCR in the coming months. For further information, go to www.todsmurray.com/charitylaw

Third parties dealing with a SCIO will not need to concern themselves about authority, as the Act provides that a person dealing with a SCIO in good faith and for value, is not required to enquire about any constitutional limitations imposed on the SCIO or its Trustees.

Alistair Burrow

The statutory requirements for creating a SCIO will be supplemented by OSCR Rules. A SCIO must have a minimum of two members and be managed by three or more charity trustees.

PARTNER T: 0141 243 4584 E: alistair.burrow@todsmurray.com

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Tods Murray Services D

Find a Tods Murray serviceâ&#x20AC;Ś Banking and Finance Graham Burnside graham.burnside@todsmurray.com

Family Law Elaine Brailsford elaine.brailsford@todsmurray.com

Bribery Consultancy Service Barbara Bolton barbara.bolton@todsmurray.com

Green Team Environment and Climate Change Stephen Colliston stephen.colliston@todsmurray.com Planning and Development Stuart Rowson stuart.rowson@todsmurray.com Renewable Energy Richard Leslie richard.leslie@todsmurray.com

Capital Projects Stephen Colliston stephen.colliston@todsmurray.com Charity Law Richard Findlay richard.findlay@todsmurray.com Commercial Property Susie Thornton susie.thornton@todsmurray.com Construction David Rogers david.rogers@todsmurray.com

Hospitality and Leisure Richard Findlay richard.findlay@todsmurray.com IT/IP/Media Susan McFadyen susan.mcfadyen@todsmurray.com

THOUGHTS & FEELINGS Before re-designing Dispatches we undertook a period of consultation with our colleagues and friends of the magazine. This is the outcome and we do hope that you like it. We welcome and greatly value all feedback. Is there something you would like to see changed or featured? Do you know someone who would like to receive their own copy of the magazine? Have any of your contact details changed? Tell us at:

dispatches@todsmurray.com

Corporate Malcolm Holmes malcolm.holmes@todsmurray.com

Litigation and Dispute Resolution Peter Paterson peter.paterson@todsmurray.com

Residential Property Gordon Cunningham gordon.cunningham@todsmurray.com

Sports Law Stephen Humphreys stephen.humphreys@todsmurray.com

Employment Martin Thurston Smith martin.thurston.smith@todsmurray.com

Private Client Gordon Cunningham gordon.cunningham@todsmurray.com

Rural Property and Business Sarah Cudworth sarah.cudworth@todsmurray.com

Tax Anne Marie Renz annemarie.renz@todsmurray.com

Families in Business Jack Gardiner jack.gardiner@todsmurray.com

Recovery and Insolvency Alistair Burrow alistair.burrow@todsmurray.com

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THE LAST WORD Since Elizabeth Taylor’s recent death, lavish tributes have been paid to her, but one of her greatest feats has been overlooked. She managed to outlive her New York Times obituary writer by six years. When her obit was finally published, the newspaper had to append this note: “Mel Gussow, the principal writer of this article, died in 2005.”

his macabre situation arose because media organisations often write obituaries of famous people while they’re alive, then update them till they’re free to publish them. One UK national newspaper used to keep its obituaries of celebrities locked away in a file called “The Morgue”. Those celebs who were felt to be closest to shuffling off their mortal coil were stored under headings like “on the way out” or “nearly dead”.

bullying mother and never forgave her for firing the family’s faithful chauffeur after she discovered that he voted socialist.”

If that sounds irreverent, spare a thought for journalists who find obituaries added to their list of writing duties. It probably means they’ve offended their editor, or else he views their career as being on the downhill slalom. They are more than likely to regard their new assignment as, so to speak, the kiss of death.

This is not to say that the era of doom-and-gloom obituaries is dead and buried. If that’s what the bereaved family wants, so be it. But, at the very least, mournful obits don’t seem too fitting for folk who use humour to help them face the prospect of the grim reaper. “It’s not that I’m afraid to die, I just don’t want to be there when it happens,” said Woody Allen. The astrologer, Patrick Moore, took a similar line. “At my age, I do what Mark Twain did,” he explained. “I get my daily paper, look at the obituaries page and, if I’m not there, I carry on as usual.”

Yet it needn’t be so. Obituaries are a celebration of life and can be written with a verve and sparkle that does justice to their subject. After all, some grieving families choose joyous music for the funeral and ask mourners to wear colourful clothes. In similar vein, there is no reason why obituaries must be uniformly bleak and lugubrious. The Telegraph, for example, has long been known for injecting humour into its obits e.g. “William Donaldson, who died on June 22 aged 70, was described by Kenneth Tynan as ‘an old Wykehamist who ended up as a moderately successful Chelsea pimp’, which was true, though he was also a failed theatrical impresario, a crack-smoking serial adulterer and a writer of autobiographical novels… He was fond of his father but disliked his snobbish,

D ispatches SUMMER 2011 | Issue 42

Or this little beauty: “Tiny Tim, the American pop singer who has died aged 62, specialised in horrendous falsetto vocalisations of sentimental songs and cultivated an appearance of utter ghastliness to match.”

Many obits would have a lighter touch if the writers didn’t make the mistake of assuming they know what the family and friends want them to write. They could learn from the tale of the rabbi who, taking a funeral service, stopped at the point where he was supposed to praise the deceased. “I didn’t know this man,” he admitted. “I’m new here. But you all knew him. Say something good about him.” There was an embarrassed silence till a voice from the back called out, “His brother was even worse than him”. Richard Louden

EXPERT INSIGHT There are a number of reasons why over a reported one third of the population does not have a Will. Many believe that they are not old enough or that their possessions do not warrant it, or that a Will is something that can simply be put off for another day. A Will is a means of retaining control and ensuring that the plans and hopes you have are not lost if you die. Taking the time to put a Will in place is one of the practical ways of ensuring that you make plans for the unexpected, however unlikely it may seem. For more information, please visit www.todsmurray.com/privateclient GORDON CUNNINGHAM T: 0131 656 2288 E: GORDON.CUNNINGHAM@todsmurray.com

Obituaries are a celebration of life and can be written with a verve and sparkle that does justice to their subject.