Lawyer Monthly Magazine - August 2019 Edition

careful assessment of the prospects of success. However, success means not just getting a favourable judgment but whether the opponent can fulfil the terms of the judgment. Another huge area of law that we practise is what is now known as “personal injury”. The field is, however, flooded by “ambulance chasers”; lawyers who form limited liability companies which promote massive advertising. This advertising even dwarfs that of the so-called PPI claims. Why do I feel terrible, watching television in the evening, that I have never had an accident or been miss- sold PPI cover? Practising law in a place like Scotland is very rewarding. This is not just due to the people and the landscape, but to the form and aspirations of the government we have. Scotland is said to yearn for its independence from the union of the kingdoms, and the union of the parliaments. A few decades ago, the latter of these unions was transformed by the granting of a heavily devolved form of government to a Scottish Parliament. You might be forgiven for thinking that not much would change; except that the Scottish psyche, politics, aspirations are all driven in an altogether different direction from the rest of the united kingdoms. England looks inward; Scotland looks outward. England seeks to limit all forms of immigration while Scotland welcomes all peoples. This remains a huge burden for the Scottish Parliament, because one of the few political policies which is not yet devolved to Scotland is – immigration. The Scottish Government, with its parliament, is highly motivated by compassion. People like to think that there is no room for compassion in the law. That ended with the first production, a few centuries ago, of the Merchant of Venice! This very obvious compassion of the Scottish Law resounds in abundance with the departure from the rest of the UK from legal tenets that can be viewed in a harsh light. So it was that the Supreme Court of the UK, a few years ago, held that the presence of pleural plaques in the lungs of a claimant was not an “actionable wrong”. Except that pleural plaques are a certain clinical pre-cursor of mesothelioma, AKA asbestosis or fatal lung cancer. ‘No’, inferred the Supreme Court, ‘you must wait until you die before your relatives can make a claim. They get the spoils, you don’t!’. The Scottish Government had other ideas. They immediately passed an Act of the Scottish Government enacting that pleural plaques were an actionable wrong. Simple. So Scottish plaintiffs get compensation. English and Welsh plaintiffs – zilch. Another area of the law in Scotland that is drastically different is in the recovery of damages or compensation for “Another area of the law in Scotland that is drastically different is in the recovery of damages or compensation for the death of a family member.” 93 AUG 2019 | WWW.LAWYER-MONTHLY.COM Thought Leader By Frank Cannon, Cannons Law Practice LLP the death of a family member. TheUKparliament enacteda law that severely limited the amount of damages recoverable by a deceased’s love-ones in respect of a wrongful death. In effect, they enacted a rigid and niggardly tally list of recoverable damages. However this area of the law was a devolved matter, meaning that the Scottish Parliament had exclusive sovereignty over the law of damages. So the Act of the UK parliament could not apply to Scotland. A beautiful example of the compassion of Scots law in this respect was the recovery of ten-fold damages, compared to that of England, for the relatives of the airmen and other military personnel killed when their Nimrod aircraft blew up over Afghanistan. It was found that although most of the deceased and their relatives lived in England, the Royal Air Force who operated the Nimrod, had a base at Lossiemouth in Scotland; that provided Scottish jurisdiction. So the loved ones received proper compensation. Compassion in action. There would seem to be many sound reasons for considering the courts and the law of Scotland. Plus ça change, as they say. LM