More for Lawyers - August 2019 by Morton Fraser Solicitors

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More for Lawyers August 2019 With festival season in full swing in Edinburgh it is virtually impossible to get around Edinburgh without fighting through a group of tourists carefully studying one of Edinburgh's great landmarks such as a small metal dog or the place that Harry Potter was "born". So, instead of getting out and about to court we have barricaded ourselves in our office and have been writing articles. This month's articles include an update by me on Rangers' ongoing dispute with Mike Ashley and interesting legal updates in the areas of debt, personal injury and employment. Finally, we are delighted to announce the arrival of Sandra Cassels and her team to Morton Fraser bolstering our contentious and non-contentious construction offerings at the firm.

Open justice and accessing court records There may be occasions where someone, who is not directly involved in a court action, wants to see the papers lodged to get more detail about the case. However this can be difficult and the parties to the case may want to ensure that this does not happen, for example, to protect against the disclosure of material which they consider confidential. The Supreme Court recently discussed issues arising in this type of situation in Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) [2019] UKSC 38. Author: Helen Bain

Sequestration: The discretion of the court in granting a warrant to cite the debtor A recent judgment of Glasgow Sheriff Court has considered whether the court has discretion in granting a warrant to cite a debtor in a sequestration petition and found that there is no discretion available to the sheriff unless there has been incompetent procedure or there is a lawful impediment. Author: Jennifer Andrew

Claimants can seek to protect funds for potential future employment tribunal awards via civil court action Those representing claimants should be considering how to ensure funds are not disposed of by respondents seeking to avoid paying awards. The satisfaction of successfully representing a claimant in a tribunal can quickly have the glow taken off it when your client never receives the award made to them, even more so when the respondent has moved funds to avoid payment when this could have been avoided by taking action at an earlier stage. Following the cases of AA v Secretary of State for Business, Energy and Industrial Strategy and the Commission for Equality and Human Rights ("BEIS" and "CEHR") and Anwar v The Advocate General those representing claimants, particularly in Scotland, will have no excuse for not considering how to prevent a respondent from disposing of funds to avoid payment of a tribunal award and taking the necessary action to prevent it. Author: Innes Clark

Covert recording of disciplinary hearing is misconduct Covert recording of a disciplinary hearing will usually amount to misconduct but it may not stop the recordings being used as evidence before a tribunal. In 2015 an employment tribunal upheld a claim of unfair dismissal, whistleblowing detriment and victimisation made by Tatiana Stockman against her employer Phoenix House Limited. Following an appeal to the EAT and a further tribunal hearing the parties found themselves back in front of the EAT in January 2019. One of the issues for the EAT related to the amount of compensation awarded by the tribunal and the fact it had been reduced by 30%.

Author: Elise Turner

Delay in Diagnosis - When Can I Make a Claim? In recent days, NHS Lothian has been under increased scrutiny after a failing to identify and treat a hip fracture and advanced prostate cancer at The Royal Infirmary in Edinburgh. In a case highlighted by the Scottish Public Services Ombudsman, NHS Lothian have apologised to a patient for failing to deliver the standard of care he could reasonably have expected to receive, following his presentation to the emergency department with acute hip and leg pain. Author: Derek Couper

Supreme Court Update: Severance and Restrictive Covenants On 3 July 2019 the Supreme Court issued an important decision on the enforceability of restrictive covenants. The facts of the case were straightforward. Ms Tillman was a senior employee at the defendant company. She was subject to a restriction which provided that she would not "directly or indirectly engage or be concerned or interested in any business carried on in competition with any of the businesses of Egon Zehnder" within a 12 month period prior to the termination date and "with which she was materially concerned during such period". Author: Richard McMeeken

Rangers lose further battle with Sports Direct Rangers FC and Sports Direct have always had an uneasy relationship. Between 2012 and 2017 Rangers and SDIR (a Sports Direct company) were the shareholders in a joint venture company Rangers Retail Limited (RRL). SDIR carried out the day-to-day running of RRL which had an exclusive right to manufacture Rangers kit.

Author: Richard McMeeken

Litigation updates for July and August The following is a summary of updates from July and August which may be of interest to those working in litigation. Author: Helen Bain

Sandra Cassels joins Morton Fraser as a specialist contentious construction lawyer Sandra Cassels, a specialist contentious construction lawyer has joined Morton Fraser as a partner. Sandra's former colleagues, Julie Scott-Gilroy and Caroline Earnshaw, joined Morton Fraser's construction team as associates earlier this year, and together with Sandra they will strengthen the firm's existing team of contentious and non-contentious construction specialists. Jonathan Seddon, who heads the firm's construction team, said: "We are very excited that Sandra and her team have decided to join us to add further expertise to our construction team. They are very highly regarded in the market and we have worked on opposing sides from them on a number of deals and disputes and have always had huge respect for them. It is great to now have them here at Morton Fraser as part of our team.” Innes Clark, who heads the firm's litigation division, said: "Morton Fraser’s litigation team is one of the largest and most experienced in Scotland, with a team of over 50 lawyers. We are delighted to welcome Sandra on board." The new hires further underline the firm’s commitment to a ‘talent first’ strategy, which has underpinned 60 per cent revenue growth over the last five years.

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