More for Lawyers by Morton Fraser Solicitors

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More for Lawyers October 2019 This month's bulletin includes a wide range of updates from commercial litigation to personal injury and employment. On the commercial litigation side I look at the use of boilerplate clauses in agreements and the dangers of just adding them to every agreement as a matter of course. On the construction front, Kenneth Carruthers and Helen Bain look at an important and interesting decision on prescription in the context of enforcement of collateral warranties. The law on prescription continues to be problematic for all practitioners. And finally, we say a word about Brexit. How could we not.

Prescription - How can an error stop the clock? In Loretto Housing Association Limited v Cruden Building & Renewals Limited [2019] CSOH 78 the Court of Session has issued another opinion on the issue of prescription in relation to a construction dispute which discusses provisions of the Prescription and Limitation (Scotland) Act 1973. Author: Helen Bain

How will Brexit affect my divorce? IWhile Westminster and Holyrood focus on the breakup of the European Union, you might have a much more personal question - how will Brexit affect your own relationship? Although it might seem this is far removed from EU politics, it is a matter of real importance to individual couples in seeking to resolve their relationship breakdown. This is because there are a number of EU Regulations which govern matters in the area of family law, particularly affecting international families. Author: Lucia Clark

Five reasons why it pays to settle disputes in the Commercial Courts Specialist courts in Scotland are nothing new. In 1994 Lord Penrose established a commercial court in order to respond to the demands of the business community for a quick and straightforward way of resolving disputes and also to make Scotland a more attractive place to litigate compared with other jurisdictions, particularly England & Wales. Other forms of dispute resolution were also beginning to gain in popularity such as arbitration and mediation and the judiciary was keen to ensure that the court remained the forum of choice for commercial actions. Author: Richard McMeeken

A Litigator's thoughts on boilerplate Boilerplate clauses are a wonderful thing. They are all in standard terms and can be inserted into an agreement by a cut and paste exercise (and often are). For corporate lawyers it must be tempting to pay no more attention to them. The drafting exercise will focus on the key terms of the contract and those clauses which are hard fought and difficult to express clearly will take precedence. But boilerplate can be important and litigation can turn on the consequences of a boilerplate clause that hasnâ&#x20AC;&#x2122;t been considered in enough detail (even if the Court of Session has suggested a more relaxed approach to interpretation of such clauses - see Hoe International Limited v Andersen 2017 SC 313). Author: Richard McMeeken

The Personal Injury Discount Rate in Scotland

The rate is used to calculate the amount due to a pursuer for "future pecuniary losses". Future pecuniary losses are financial losses the pursuer will incur as a result of the injuries they have suffered, for example the cost of additional care needs or lost earnings. Author: Jenny Dickson

Whistleblowing & public interest under scrutiny again In Okwu v Rise Community Action the EAT considered whether an employment tribunal had wrongly concluded that a letter concerning personal contractual matters did not have sufficient public interest to meet the test for being a qualifying disclosure. Author: David Walker

Vegetarianism a "lifestyle choice" not weighty or serious enough to gain protection under Equality Act When you consider that a belief that mediums can communicate with the dead, a public belief a service is for the common good and an anti fox hunting belief all made the grade as philosophical beliefs worthy of protection under the Equality Act 2010, you might well have thought that vegetarianism might be in with a shout as well. Add to that the fact that the Equality and Human Rights Commission ("EHRC") have said in its guidance that "belief such as humanism, pacifism and vegetarianism and the belief in man-made climate change, are all protected" and it seemed to be a shoe in. However, the Employment Judge in Conisbee v Crossley Farms Limited and others was not persuaded. Author: Pamela Macaulay

Prerogatives and Prorogation - archaic law? Not at allâ&#x20AC;Ś. The judgment is out from the Supreme Court. Who could have predicted that the word "prorogation" would trip off the tongue of the citizen in the street? Author: Lynda Towers

Collateral warranties & prescription In Scotland the Prescription and Limitation (Scotland) Act 1973 provides that the statutory time limit for expiry of obligations arising from a contract is 5 years. However, it will often be the case that parties to a contract want to set out different time limits within which particular claims arising from the contract must be raised. This type of clause, sometimes described a contractual limitation clause, is not covered by the 1973 Act. Author: Kenneth Carruthers and Helen Bain

NOM, NOM - some food for thought NOM is a frequently used abbreviation when it comes to construction contracts. It stands for No Oral Modifications (NOM). Whilst, the Courts have long held that parties are free to make and unmake (or vary) commercial contracts as they see fit, the most recent guidance from the UK Supreme Court last year means that where the original contract has a NOM Clause the parties to the contract are bound by it. Author: Julie Scott-Gilroy

The Art of Litigation It’s no secret that litigators have a reputation for bringing bullish tactics to the courtroom. Historically, when individuals or businesses tried to solve disputes themselves with little or no luck, they would turn to a litigator who would scare the opponent into submission. Dubbed the “Rottweiler” approach, this style can still be a necessary means for victory. Author: Richard McMeeken

Litigation updates for September and October The following is a summary of some recent updates from September and October which may be of interest to those working in litigation in Scotland. Author: Helen Bain

The More for Lawyers Conference 2020 Our More for Lawyers Conference for 2020 will be taking place on Thursday 14 May. We will be issuing details of the programme closer to the time but, in the meantime, save the date! More for lawyers - Our Service More for Lawyers is for our professional colleagues. Working in partnership with other law firms throughout Scotland we can ensure that our clients and theirs get the best possible service. Our focus is on litigation agency work in the Court of Session, Sheriff Appeal Court and the All Scotland Personal Injury Court. We appreciate that the type of support you need from us may vary from case to case. With that in mind, our service can range from anything from lodging documents on your behalf to being involved in giving detailed advice and the day-to-day running of cases.

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