West Lothian Council v Scottish Ministers [2023] CSIH 3
Background
This planning appeal concerned a refusal by West Lothian Council (“Council”) for planning permission to construct around 104 homes on a greenfield site at Hen’s Nest Road, East Whitburn. Ogilvie Homes (“Developers”) appealed the decision to the Scottish Ministers (“Ministers”), who appointed a Reporter. The Reporter granted planning permission. The Council appealed the reporter’s decision to the Inner House.
Key Issue
The key issue in dispute was whether there was a shortfall in the “5 year effective housing land supply”. This is a test which acts as a proxy to measure whether sufficient land is being made available for development to meet the Council’s housebuilding targets. The Council is obliged to maintain a minimum of a 5 year effective housing land supply at all times. If there is a shortfall, then policies in the local development plan (“LDP”) and the strategic development plan (“SESplan”) allow for additional greenfield sites to be released for development providing certain criteria are met. Additionally, in terms of Scottish Planning Policy (“SPP”), there is a presumption in favour of sustainable development which becomes a significant material consideration where there is such a shortfall. The greater the shortfall, the more that any adverse impacts would have to outweigh the benefits. This is called applying the ‘tilted balance’.
It was not disputed that the criteria in the LDP and SESplan policies were met. It was not disputed that, if engaged, the tilted balance did not favour development.
However, the Council argued that there was no shortfall and the Reporter had erred in law in arriving at the conclusion that there was. The Council were critical of the method used to calculate the shortfall. The Council argued that an “average method” be used, which involved taking the total housing land requirement over the life of the current plan (19,811), dividing that figure by the number of years (15) and multiplying the result by 5 years. This resulted in a requirement of 6,605 units, which was less than the projected supply of 8,157 units. The average method, however, leaves out of account past under-delivery, but projected that there was over 6 years’ worth of supply in West Lothian.
The Developer had argued that a “residual method” be used which, on the contrary, takes into account any prior under-delivery against housing targets in previous years. Using the residual method there was less than 3 years’ worth of supply. There was, they argued, therefore a significant shortfall in 5 year effective housing land supply.
Reporter’s Decision
Rather than simply accept either the Council or the Developers’ calculation, the Reporter considered he could apply a simpler method to determine whether there was a shortfall. He looked at the number of houses that were targeted to be built by the end of the plan in 2024 (18,010) and estimated that the Council would be at least 4,000 units short. There was no established target beyond 2024 to do a conventional 5 year calculation. The Reporter concluded there was a significant shortfall, and then cross-checked this conclusion was another recent decision in West Lothian at Mossend which proceeded on very similar figures and came to the same result.
Court’s Decision
The Lord President gave the opinion for the First Division, which also included Lords Woolman and Pentland. The Lord President emphasised that reporters were not lawyers and neither, primarily, was their audience. It was desirable for their reasoning to be “intelligible, yet succinct”. This Reporter’s decision readily met that standard. The Reporter asked himself the right question, was aware of the alternative methods of calculation and the recent history of changes and court challenges to planning policy in this area.
The Court was satisfied that there was no basis to interfere with the Reporter’s decision. The answer to the question of whether there is a shortfall is a matter of planning judgement for the Reporter to decide. The Court will only intervene if there were no material before the Reporter to support his conclusion. In this case there was such material.
The Court emphasised that the development plan policies that allow for exceptional release of land when a shortfall is demonstrated are a means to an end and not an end in themselves: “That end is the fulfilment of the overall purpose of a development plan, which is to ensure that the housing need in the area is met”.
It was clear that the Council had fallen far behind its targets. The Reporter was dealing with a situation where there was no target established for 5 years’ time. In the circumstances, the Reporter’s approach was “realistic and accorded with common sense”. The Court was reassured by the fact that the Reporter had cross-checking his conclusions with the decision in Mossend. Ultimately the Court declared that the Reporter’s decision was “entirely coherent”.
West Lothian Council: Douglas Armstrong KC
Scottish Ministers: Michael Way
Ogilvie Homes: AO Sutherland (sol ad)
Opinion of First Division can be found here.
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Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32
Background to the Appeal
The Abortion (Safe Access Zones) (Northern Ireland) Bill (“the Bill”) was passed by the Northern Ireland Assembly (“the Assembly”) on 24 March 2022. The Bill is primarily designed to protect the right of women to access abortion and associated sexual and reproductive health services. It prohibits anti-abortion protests and other specified behaviour within “safe access zones” around abortion clinics and related premises.
This reference concerns clause 5(2)(a) of the Bill, which makes it a criminal offence “to do an act in a safe access zone with the intent of, or reckless as to whether it has the effect of… influencing a protected person, whether directly or indirectly”. The persons protected by clause 5(2)(a) include patients, persons accompanying them, and staff who work at the premises where abortion services are provided.
Under the Northern Ireland Act 1998, the power of the Assembly to make legislation (or its “legislative competence”) is limited. A provision of a Bill is outside the Assembly’s legislative competence and therefore not law if it is incompatible with any of the rights protected by the European Convention on Human Rights (“the Convention”) (sections 6(1) and 6(2)(c)).
The Attorney General for Northern Ireland (“the Attorney”) is concerned that, because clause 5(2)(a) of the Bill does not provide any defence of reasonable excuse, it disproportionately interferes with anti-abortion protesters’ rights to freedom of thought, conscience and religion, freedom of expression, and freedom of assembly. These rights are protected by articles 9, 10 and 11 of the Convention. The Attorney therefore asks the Supreme Court to decide whether the penal sanction with no provision for reasonable excuse created by clause 5(2)(a) of the Bill is outside the legislative competence of the Assembly because it involves a disproportionate interference with the article 9, 10 and 11 rights of those who seek to express opposition to the provision of abortion treatment services in Northern Ireland.
Judgment
The Supreme Court unanimously holds that clause 5(2)(a) of the Bill is compatible with the Convention rights of those who seek to express their opposition to the provision of abortion treatment services in Northern Ireland. Accordingly, clause 5(2)(a) is within the legislative competence of the Assembly. Lord Reed gives the judgment, with which all the other members of the Court agree.
Reasons for the Judgment
Before considering clause 5(2)(a) of the Bill, the judgment addresses a number of preliminary issues [10]. First, the Court confirms that a provision of devolved legislation such as clause 5(2)(a) will only be outside legislative competence because it is incompatible with Convention rights if it would give rise to an unjustified interference with those rights in all or almost all cases [12]-[19].
Secondly, the Court considers questions arising from the cases of Director of Public Prosecutions v Ziegler [2021] UKSC 23 and Director of Public Prosecutions v Cuciurean [2022] EWHC 736 (Admin). It holds that, during a criminal trial, it is not always necessary to assess whether a conviction for an offence would be a proportionate interference with a particular defendant’s rights under articles 9, 10 and 11 of the Convention [29], [34]-[41], [45]-[51], [63]. The ingredients of an offence can in themselves ensure that a conviction will be compatible with those Convention rights [34]-[41], [45]-[51], [55], [65]. This may be the case even if the offence does not include a defence of lawful or reasonable excuse [44]-[55], [64]. The assessment of whether an interference with a Convention right is proportionate is not an exercise in fact-finding, but rather involves the application of a series of legal tests in a factual context [30]-[34], [66]. As a result, it does not necessarily need to be conducted by the body responsible for finding the facts at any trial [67].
The Court then turns to the question referred to it by the Attorney, namely, is clause 5(2)(a) outside the legislative competence of the Assembly because it is incompatible with anti-abortion protestors’ rights under articles 9, 10 and 11 of the Convention?
The Court holds that clause 5(2)(a) is compatible with the Convention rights of anti-abortion protestors and is therefore within the legislative competence of the Assembly. It recognises that – although not all anti–abortion protest activities are protected by the Convention – clause 5(2)(a) does restrict the exercise of protesters’ Convention rights [111]-[112]. However, this restriction can be justified.
First, the restriction of the exercise of Convention rights is prescribed by law [113]. Secondly, clause 5(2)(a) pursues a legitimate aim. It seeks to ensure that women have access to advice and treatment relating to the lawful termination of pregnancy under conditions which respect their privacy and dignity, thereby protecting public health. It is also designed to enable staff who work at abortion clinics and related premises to attend their place of work without being intimidated, harassed or abused. These aims fall within the qualifications in articles 9(2), 10(2) and 11(2) of the Convention, which permit the restriction of rights in order to prevent disorder, protect health and protect the rights and freedoms of others. Furthermore, the right to access health care in conditions of privacy and dignity, and the right to pursue employment, are protected by article 8 of the Convention. That right entails a positive obligation which requires states to enable pregnant women to exercise their right of access to lawful abortion services effectively, without being hindered or harmed by protesters in the ways described in the evidence before the Court [114]-[115].
Thirdly, the restrictions imposed by clause 5(2)(a) are proportionate. The aim of the clause is sufficiently important to justify restricting anti-abortion protestors’ rights under articles 9, 10 and 11, and the restrictions the clause imposes have a rational connection to that aim [117]-[118]. Clause 5(2)(a) is not unduly restrictive: rather, it is rational and necessary if the Bill is to achieve its intended aims [119]-[122]. A defence of reasonable excuse would render clause 5(2)(a) less effective [123]. The clause itself strikes a fair balance between competing rights [154]-[155].
In reaching this conclusion, the Court has regard to the following considerations. First, the context is a highly sensitive one in which the protection of the private lives and autonomy of women is of particular importance. Secondly, women who wish to access lawful abortion services have a reasonable expectation of being able to do so without being confronted by protest activity designed to challenge and diminish their autonomy and undermine their resolve. Thirdly, the Bill only prevents anti–abortion protestors from exercising their rights under articles 9, 10 and 11 of the Convention within designated safe access zones. They are free to protest anywhere else they please. Fourthly, the women and staff protected by clause 5(2)(a) are a captive audience who are compelled to witness anti–abortion activity that is unwelcome and intrusive when they visit premises where abortion services are provided. Fifthly, the Bill is intended to implement the UK’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women. Sixthly, the maximum penalty for an offence under clause 5 is a fine of up to £500. Seventhly, in a sensitive context like this one, states have a wide margin of appreciation in situations where it is necessary to strike a balance between competing Convention rights [124]-[131].
For all of these reasons, the Court is satisfied that the restrictions imposed by clause 5(2)(a) of the Bill are justifiable. They are required to protect the rights of women seeking treatment or advice, and are also in the interests of the wider community, including other patients and staff of clinics and hospitals. A conviction under clause 5(2)(a) will not therefore interfere disproportionately with a protestor’s rights under articles 9, 10 and 11 of the Convention [154]. Accordingly, clause 5(2)(a) is within the Assembly’s legislative competence [157].
References in square brackets are to paragraphs in the judgment
Justices
Lord Reed (President), Lord Kitchin, Lord Burrows, Lady Rose, Lord Lloyd–Jones, Lord Carloway, Dame Siobhan KeeganFull judgment can be viewed on the UK Supreme Court website here.
Paul Reid was junior counsel to the Lord Advocate, instructed by the Scottish Government Legal Directorate.
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New panel of Standing Junior Counsel to the Advocate General for Scotland announced
Following the recent appointment process, the Advocate General for Scotland is pleased to announce new additions to his General Panel of Standing Junior Counsel to deal with UK Government work arising in the Scottish Courts. The appointments, which have been approved by him include two Ampersand Advocates, Alan Cowan and Ayla Iridag.
Full details of all appointments can be found on the UK Government’s website here.
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Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 UKSC 31
Justices
Lord Reed (President), Lord Lloyd-Jones, Lord Sales, Lord Stephens and Lady Rose
Background to the Appeal
The Scottish Government has drafted a Scottish Independence Referendum Bill which makes provision for a referendum on the question, “Should Scotland be an independent country?”. Under the Scotland Act 1998 (“the Scotland Act”), the power of the Scottish Parliament to make legislation (or its “legislative competence”) is limited. A provision of a Bill will be outside the legislative competence of the Scottish Parliament and therefore not law if it relates to the matters which have been reserved to the United Kingdom Parliament in Westminster (sections 29(1) and (2)(b)). These reserved matters include “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Schedule 5, paragraphs 1(b) and (c)).
In this reference, the Lord Advocate (the senior law officer of the Scottish Government) asks the Court whether the provision of the proposed Bill which provides for a referendum on Scottish independence would be outside the legislative competence of the Scottish Parliament because it relates to either or both of the reserved matters of the Union or the United Kingdom Parliament. This is a legal question about the Scottish Parliament’s power to make legislation under the Scotland Act. The Court is not being and could not be asked to give a view on the distinct political question of whether Scotland should become independent from the rest of the United Kingdom.
The powers of the Scottish Parliament were not in issue during the 2014 referendum on Scottish independence. This is because, in 2013, an Order in Council under section 30(2) of the Scotland Act modified the definition of reserved matters to enable the Scottish Parliament to pass the 2014 referendum legislation. The United Kingdom Government is currently unwilling to agree to the making of another Order in Council to facilitate another referendum on Scottish independence.
The Lord Advocate’s reference was made under paragraph 34 of Schedule 6 to the Scotland Act. The Advocate General for Scotland (the Scottish law officer of the United Kingdom Government) raises two preliminary issues, namely, whether the Court can and should answer the reference. There are consequently three questions which the Court must consider. First, is the question referred by the Lord Advocate a “devolution issue”? If not, it cannot be the subject of a reference under paragraph 34 of Schedule 6, which would mean that the Court does not have jurisdiction to decide it. Secondly, even if it is a devolution issue, should the Court exercise its discretion to decline to accept the reference? Thirdly, if the Court accepts the reference, how should it answer the question the Lord Advocate has referred to it?
Judgment
In a unanimous judgment, the Court answers the questions before it as follows. First, the question referred by the Advocate General is a devolution issue, which means that that the Court has jurisdiction to decide it. Secondly, the Court should accept the reference. Thirdly, the provision of the proposed Bill which makes provision for a referendum on the question, “Should Scotland be an independent country?” does relate to matters which have been reserved to the Parliament of the United Kingdom under the Scotland Act. In particular, it relates to the reserved matters of the Union of the Kingdoms of Scotland and England and the Parliament of the United Kingdom. Accordingly, in the absence of any modification of the definition of reserved matters (by an Order in Council or otherwise), the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence.
Reasons for the Judgment
Issue 1: Is the question referred by the Lord Advocate a devolution issue?
Only a “devolution issue” can be referred to the Court under paragraph 34 of Schedule 6 to the Scotland Act. The term “devolution issue” is defined by paragraph 1 of Schedule 6. Under paragraph 1(f), it includes “any other question arising by virtue of this Act about reserved matters” [13-14]. The Court concludes that the question referred by the Lord Advocate falls within this description and is therefore a devolution issue which the Court has jurisdiction to decide [47].
In reaching this conclusion, the Court holds, first, that the question referred is one “arising by virtue of” the Scotland Act because it is a question which arises under section 31(1) for the person wishing to introduce the Bill into the Scottish Parliament [16]. That person is required, on or before the Bill’s introduction, to give a statement confirming that, in their view, the provisions of the Bill would be within the legislative competence of the Scottish Parliament [9]. Secondly, the existence of the separate scheme for the scrutiny of Bills for legislative competence by the Court in section 33 of the Scotland Act does not prevent a reference from being made under paragraph 34 of Schedule 6 in relation to a proposed Bill, before it is introduced [21-27]. Thirdly, the terms of paragraph 1(f) of Schedule 6 are very wide. They are intended to sweep up any questions arising under the Scotland Act about reserved matters which are not covered elsewhere [37-42]. Fourthly, it is consistent with the rule of law and with the intention of the Scotland Act that the Lord Advocate should be able to obtain an authoritative judicial decision on the legislative competence of the Scottish Parliament in advance of the introduction of a Bill [44-46].
Issue 2: Should the Court decline to accept the Lord Advocate’s reference?
The Court concludes that it should accept the reference [54]. The reference has been made in order to obtain an authoritative ruling on a question of law which has already arisen as a matter of public importance. The Court’s answer will determine whether the proposed Bill is introduced into the Scottish Parliament. The reference is not therefore hypothetical, academic or premature [53].
Issue 3: Does the proposed Bill relate to reserved matters?
The question whether the provision of the proposed Bill which provides for a referendum on Scottish independence would relate to matters which have been reserved to the United Kingdom Parliament under the Scotland Act (section 29(2)(b)) is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances (section 29(3)) [56-57], [70], [75].
A provision will relate to a reserved matter if it has something more than a loose or consequential connection with it [57], [71-72]. The purpose and effect of the provision may be derived from a consideration of both the purpose of those introducing the legislation and the objective effect of its terms [73]. Its effect is not restricted to its legal consequences [74].
Applying this test, the reserved matters which are relevant here are “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Schedule 5, paragraphs 1(b) and (c)). The latter reservation includes the sovereignty of the United Kingdom Parliament [76]. The purpose of the proposed Bill is to hold a lawful referendum on the question of whether Scotland should become an independent country, that is, on ending the Union and the sovereignty of the United Kingdom Parliament over Scotland [77], [82]. The Bill’s effect will not be confined to the holding of the referendum. Even if the referendum has no immediate legal consequences, it would be a political event with important political consequences [78-81]. It is therefore clear that the proposed Bill has more than a loose or consequential connection with the reserved matters of the Union of Scotland and England and the sovereignty of the United Kingdom Parliament. Accordingly, the proposed Bill relates to reserved matters and is outside the legislative competence of the Scottish Parliament [82-83], [92].
The Scottish National Party (intervening) made further written submissions founded on the right to self–determination in international law and the principle of legality in domestic law [84]. The Court rejects these submissions, holding that the right to self–determination is not in issue here [88-89] and does not require a narrow reading of “relates to” in section 29(2)(b) so as to limit the scope of the matters reserved to the United Kingdom Parliament under the Scotland Act [90]. Similarly, the allocation of powers between the United Kingdom and Scotland under the Scotland Act does not infringe the principle of legality [91].
References in square brackets are to paragraphs in the judgment
Full judgment here.
Paul Reid, junior counsel to the Lord Advocate, instructed by the SGLD
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Ampersand Advocates continues Top Rankings success in 2023 Chambers and Partners UK Bar Guide
Ampersand Advocates has once again received top tier rankings across a number of areas of practice in the latest published guide to the legal profession, Chambers and Partners UK Bar Guide 2023.
Ampersand received 74 listings across 17 areas of practice, ranking as top tier (band 1) in Clinical Negligence and Planning & Environmental Law as a Set, and band 2 in Administrative & Public law, Civil Liberties & Human Rights, Commercial Dispute Resolution, Construction, Personal Injury, Professional Negligence, Real Estate Litigation and Restructuring/Insolvency as a Set. 5 members are noted as “star individuals”. There is wide practice for the clerking team and client service too.
Noted as a Band 1 set for Clinical Negligence, “retains its reputation as a market-leading stable for clinical negligence matters. Its advocates continue to provide expert legal advice and representation to both pursuers and defenders in a wide range of disputes, including claims relating to birth and catastrophic brain and spinal injuries. Members are well versed in cases arising from alleged failures in diagnosis and surgical errors, and regularly appear at fatal accident inquiries. The stable also houses considerable expertise in multiparty actions stemming from the use of medical equipment.” Our rankings include 2 “Star Individuals”, Maria Maguire KC and David Stephenson KC, with 11 further silks and 6 juniors also ranked – Simon Bowie KC, Jamie Dawson KC, Simon Di Rollo KC, Una Doherty KC, Lisa Henderson KC, Vinit Khurana KC, Archie MacSporran KC, Euan Mackenzie KC, Geoffrey Mitchell KC, Graham Primrose KC, Lauren Sutherland KC, Fiona Drysdale, Mark Fitzpatrick, James McConnell, Jennifer Nicholson-White, Paul Reid and Phil Stuart.
Ampersand’s Band 1 listing in Planning & Environment states “well regarded for the complex planning and environmental work undertaken by its advocates. Members of the stable regularly act in judicial reviews and challenges to planning permissions, and frequently act on behalf of developers, objectors, public sector bodies and energy companies. Members are regularly engaged in high-profile matters, including those relating to large renewable energy projects. One source notes that “the depth and breadth of expertise at the stable is first class””. Rankings include Malcolm Thomson KC as “Star Individual”, and Band 1 ranked Marcus McKay KC, Ailsa Wilson KC and Laura-Anne van der Westhuizen KC.
Band 2 listings include Administrative & Public Law where Ampersand is praised “highly praised practitioners who are skilled at acting in public law cases involving significant constitutional and human rights issues. They frequently appear before the highest courts in the UK and the EU.” The rankings include “Star Individual” Aidan O’Neill KC, along with Ian Forrester KC, Douglas Ross KC, Laura-Anne van der Westhuizen KC, Paul Reid, Usman Tariq and Timothy Young.
In Civil Liberties & Human Rights Ampersand is noted as a “highly regarded civil liberties and human rights stable, known for representing both private individuals and public bodies in significant proceedings. Practitioners at Ampersand are regularly instructed by the government and the Equality and Human Rights Commission.” The rankings include Aidan O’Neill KC, Douglas Ross KC and Usman Tariq.
In Commercial Dispute Resolution Chambers state Ampersand is “admired for its skilful work in high-profile commercial disputes. The stable offers a large team comprising highly rated advocates at the senior and junior levels. The advocates are instructed on behalf of corporations and financial institutions and are involved in a variety of related areas of practice including intellectual property and insolvency.” The rankings include Robert Howie KC, Graeme Hawkes KC, Laura-Anne van der Westhuizen KC, Ross Anderson, Eoghainn MacLean, Giles Reid, Paul Reid, Usman Tariq and Tim Young.
Within Personal Injury “Ampersand Advocates is a highly regarded stable for personal injury matters and houses a number of dedicated senior and junior advocates. Members act for both pursuers and defenders, including several major insurers, in the full range of claims, and offer considerable expertise in the handling of catastrophic injury cases arising from road traffic and workplace accidents. Jennifer Nicholson-White acted for the first defender in a claim brought by the pursuer who suffered a significant head injury while at work following a fall. The team is also well regarded for its expertise in complex product liability and occupiers’ liability disputes and matters involving accidents abroad. The stable’s tenants are regularly called upon to appear in fatal accident inquiries, where they have experience of acting for government agencies, health boards and local authorities. Interviewees report: “Ampersand offer counsel with strong expertise across a wide range of practice areas.” Another adds: “They provide consistently excellent and pragmatic advice.””
Rankings include “Star Individuals” Maria Maguire KC and Graham Primrose KC with others ranked Isla Davie KC, Simon Di Rollo KC, Lisa Henderson KC, Euan Mackenzie KC, Douglas Ross KC, Alan Cowan, Chris Marney and Jenny Nicholson-White.
The Set ranking in Professional Negligence declares “Ampersand Advocates is a leading stable for professional liability matters in Scotland. The advocates often advise and act in proceedings on behalf of and against a suite of professionals including solicitors, surveyors, architects and financial advisers.” The rankings include Chris Marney, Paul Reid and Usman Tariq.
In the Set ranking for Real Estate Litigation, it exclaims “Ampersand Advocates offers a strong bench of well-regarded advocates who are active across a broad range of real estate litigation topics. The set demonstrates strong expertise in areas of overlap between commercial and real estate disputes. Members are instructed at all levels from the Supreme Court down.” Rankings include Robert Howie KC, Laura-Anne van der Westhuizen KC, Ross Anderson, Giles Reid and Tim Young.
The Construction Set ranking states “Ampersand Advocates offers significant experience in advising clients in relation to a range of building and construction works in Scotland. The bench handles a variety of contractual, delays and construction disputes, also involving defects issues. Its advocates have notable expertise in adjudications and enforcement actions, as well as construction-related bond matters.” Rankings include Robert Howie KC and Timothy Young.
Within Restructuring/Insolvency “Ampersand Advocates is well regarded for its handling of a wide range of restructuring and insolvency matters. The stable’s advocates are frequently instructed to represent administrators, companies, banks and insolvency office holders in complex claims involving allegations of wrongful trading and breach of fiduciary duty, among other matters. Members have experience of appearing in both domestic and cross-border matters, and are regularly called upon to act for and advise their clients on both contentious and non-contentious insolvency cases.” Rankings include Robert Howie KC, David Sellar KC, Ross Anderson and Usman Tariq.
There are individual rankings in: Agriculture and Rural Affairs for Laura-Anne van der Westhuizen KC; Company for David Sellar KC and Tim Young; Employment for Aidan O’Neill KC; Information Technology and Intellectual Property for Usman Tariq; Product Liability for Paul Reid; and Tax for Ross Anderson.
The Ampersand clerks again receive wide praise across all areas of practice, noting “the service is always excellent and has been for years” and described as “one of the best stables to work with”. The clekrs are noted as “a very professional team who also have the commercial reality required.” Further comments include: “The clerking team at Ampersand are always willing to help and are quick to respond to queries. If there is a complex or time-sensitive matter, they will do their utmost to assist in a timely manner… The clerks are wonderful, prompt and very friendly… The clerks know the advocates and their strengths and skill, and are great at managing their diaries… The clerks are responsive and willing to help. They will often go above and beyond the call of duty to find solutions to difficult situations.”
On the recent rankings, Practice Manager, Alan Moffat, said: “This is yet again wonderful recognition and praise for all of the excellent work our advocates and my team does on a continual basis. My thanks goes to everyone who took the time out of their busy schedules to provide Chambers with their views. We work in collaboration with the profession and it is again pleasing to hear those that instruct our members recognise the value our members bring to the legal team. I am very proud of the excellent and hard work my team puts in every day and am pleased to see that appreciated too. We will continue to strive for excellence and the rankings provide insight into our success in achieving that aim.”
The full rankings can be viewed on the Chambers and Partners website here.
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Ampersand Advocates ranked as top tier set by Legal 500 in 2023 guide
Ampersand is delighted to once again be recommended as a top-tier set by The Legal 500 UK Bar Directory in their latest listings for the 2023 guide. Listed as tier 1 in Administrative & Public Law, Personal Injury & Medical Negligence and Property, Planning & Construction, and tier 2 in Commercial Disputes, Ampersand has collected 22 Senior Counsel rankings, 21 Junior Counsel rankings, including 2 rising stars, across the Scottish Bar listings.
Administrative and Public Law
TIER 1
Ampersand Advocates is home to a team of ‘excellent public and administrative law counsel‘. In a prominent case highlight, Douglas Ross KC and Paul Reid represented the Scottish Ministers in Fair Play for Women Limited v Registrar General for Scotland & Scottish Ministers, concerning a judicial review challenging the guidance issued to accompany the “sex question” in the 2022 Scottish census; the review was refused and the challenge thrown out. Aidan O’Neill KC (who has dual tenancy with London-based set Matrix Chambers) garners praise for his ‘outstanding knowledge‘, and successfully acted for rewilding charity Trees for Life in a judicial review brought against Scottish Government agency NatureScot, on the grounds that the agency’s policy of issuing licences to cull beavers was unlawful.
Testimonials
Stable
‘Very helpful and responsive.’
‘Considerable strength in depth.’
Leading silks
Band 1
Aidan O’Neill KC – Ampersand Advocates ‘Aidan is beyond talented. He thinks of novel and innovative approaches to arguments, as well as having an extraordinary base of legal and historical knowledge which can be brought to bear.’
Douglas Ross KC – Ampersand Advocates ‘Douglas excels at seeing a clear route to a sound and practical solution through competing arguments. He has the confidence of clients in a tight situation and the total respect of the court; he wears his learning lightly and deploys it persuasively. He is an ideal public law silk.‘
Band 2
Susanne Tanner KC
Leading juniors
Band 1
Paul Reid
Band 2
Ross Anderson
Usman Tariq
Timothy Young – Ampersand Advocates ‘Timothy has a pragmatic approach to cases. He is an extremely safe pair of hands.’
Rising Star
Michael Way – Ampersand Advocates ‘Michael is exceptionally thorough and meticulous, very insightful in his drafting, and exceptional on his feet.‘
Commercial Disputes
TIER 2
Viewed as ‘one of the best stables for commercial disputes counsel‘, Ampersand Advocates‘ team fields expertise in handling insolvency matters, IP-related cases and professional negligence issues, to name a few. Laura-Anne Van Der Westhuizen KC has notable experience in advising on commercial disputes with planning and real estate elements. Graeme Hawkes KC is ‘very responsive‘ and regularly acts in litigation involving commercial contracts. Timothy Young ‘delivers complex legal issues in an easy to understand and pragmatic way‘. Shareholder disputes form a core pillar of Paul Reid‘s practice.
Testimonials
Stable
‘Good pool of advocates.’
‘Extremely efficient, friendly and responsive.’
Leading silks
Band 2
Alan Dewar KC – Ampersand Advocates ‘A silk who is extremely knowledgeable, concise and certainly has the ear of the court.’
Robert Howie KC – Ampersand Advocates ‘Robert is able to identify core issues in highly complex litigation quickly and with razor sharp focus, and provides practical advice on and solutions to those issues. His analytical skills are first-rate.’
Leading juniors
Band 1
Ross Anderson – Ampersand Advocates ‘Ross is a good communicator and a first-rate advocate who is quick on his feet. He provides sound and detailed advice.’
Eoghainn MacLean – Ampersand Advocates ‘He thoroughly considers the issues in a case.’
Usman Tariq – Ampersand Advocates ‘He is assiduous and tremendously user-friendly. Judges like his understated approach in court.’
Band 2
Mark Boni – Ampersand Advocates ‘Mark is extremely professional in his approach. He has a good manner with clients and provides clear and concise advice on difficult legal issues.’
Paul Reid – Ampersand Advocates ‘Paul understands the pressures solicitors and clients are under and is incredibly easy to work with. He is across every detail, and can be relied upon to explain complex issues in simple language.’
Timothy Young – Ampersand Advocates ‘Timothy is extremely commercial, and takes time to understand the client’s objectives and the wider context of the dispute. He is excellent under pressure and he is extremely robust. His written work is clear and persuasive, and he is equally impressive on his feet.’
Rising Star
Michael Way – Ampersand Advocates ‘Michael is very knowledgeable, and builds a strong rapport with solicitors and clients alike.’
Personal Injury and Medical Negligence
TIER 1
Ampersand Advocates garners particular praise for its ‘unique depth and range of expertise in clinical negligence‘; complex, high-value personal injury work is another core pillar of strength for the team. Maria Maguire KC has solid expertise in advising on cases involving psychiatric injuries and catastrophic injury matters. Lauren Sutherland KC, who is also a member of Byrom Street Chambers in Manchester, is well known for handling cerebral palsy and brain injury cases, and has niche expertise in advising on issues of consent in relation to clinical negligence matters. Among the juniors, Jennifer Nicholson-White is active in both areas, and represents pursuers and defenders in a range of litigation.
Testimonials
Stable
‘Very high calibre of advocates.’
‘The stable has a wealth of experience.’
Leading silks
Band 1
David Stephenson KC – Ampersand Advocates ‘David is a brilliant and skilled orator, who is highly effective on his feet in court. He is a very safe pair of hands in complex, high value clinical negligence cases.’
Euan Mackenzie KC – Ampersand Advocates ‘Euan is an excellent advocate, with a mild demeanour that belies a steely core.’
Geoffrey Mitchell KC – Ampersand Advocates ‘He is a skilled and practical negotiator. A silk with a calm presence in court, unfailingly polite but rigorous in questioning.’
Graham Primrose KC – Ampersand Advocates ‘Graham is simply outstanding in his field. A stalwart negotiator and a quality operator at the top of his game.’
Lisa Henderson KC – Ampersand Advocates ‘Lisa is excellent with clients, and they are well aware of her dedication to the case. She is thorough in her preparation.’
Maria Maguire KC -Ampersand Advocates ‘Maria is a class act. She is top of her game in this field. She is a master at analysing complex cases and providing clear and straightforward advice to clients.’
Simon Bowie KC -Ampersand Advocates ‘Simon is an exceptional silk who is always thorough in his preparation, calm in his approach and extremely personable. He is clever, thoughtful and level headed.’
Band 2
Lauren Sutherland KC – Ampersand Advocates ‘Lauren is fearless, tenacious and has meticulous attention to detail. She also easily builds rapport with clients and gains their trust. She has an unparalleled knowledge of relevant cases, however obscure.’
Alan Dewar KC – Ampersand Advocates
Douglas Ross KC – Ampersand Advocates ‘He is always well-prepared and goes the extra mile. A very calm and measured advocate with a very understated manner, and always treats others with respect.’
Una Doherty KC – Ampersand Advocates ‘Una is incredibly calm and instils confidence She is determined and dependable, and has the ability to cut straight through the superfluous and immediately identify the issues at the heart of an action.’
Vinit Khurana KC – Ampersand Advocates
Leading juniors
Band 1
James McConnell – Ampersand Advocates ‘A well respected junior. He is organised, extremely thorough and diligent. Excellent with clients and experts.’
Band 2
Fiona Drysdale – Ampersand Advocates ‘A diligent, perceptive and highly able junior.’
Jennifer Nicholson-White –Ampersand Advocates ‘She offers clear and focussed advice to clients and presents cases well in court. She is very personable, making her extremely easy to work with, yet is prepared to stick to her guns where appropriate and goes above and beyond for all clients.’
Shane Dundas – Ampersand Advocates ‘An outstanding advocate who is great to work with. He is responsive, proactive and excellent in court.’
Property, Planning and Construction
TIER 1
Ampersand Advocates ‘has a wide offering of quality advocates‘ and an excellent reputation for its expertise in planning and construction law matters. Laura-Anne Van Der Westhuizen KC is ‘a very impressive advocate‘ who provides ‘clear, considered and strategic advice‘ across a wide range of planning matters. Marcus McKay KC is viewed as ‘one of the best at the senior Bar in planning and environmental matters‘. Timothy Young is sought after for his solid track record in advising on construction contractual disputes and contentious property work, including crofting and agricultural issues. Nicholas McAndrew is ‘a first class junior, particularly when it comes to construction and engineering disputes‘.
Testimonials
Stable
‘Ampersand is very responsive and easy to work with.’
‘Ampersand is a strong stable with a fantastic choice of advocates.’
Leading silks
Band 1
Robert Howie KC – Ampersand Advocates ‘A superbly analytical and utterly top drawer silk who is excellent in court.’
Marcus McKay KC – Ampersand Advocates ‘Marcus is a very pragmatic silk, and he is extremely easy to work with. He presents cases in a clear and logical manner and is good at seeing the bigger picture.’
Malcolm Thomson KC – Ampersand Advocates ‘He is an exceptional advocate.’
Ailsa Wilson KC – Ampersand Advocates ‘A silk with a very strong planning law practice.’
Leading juniors
Band 1
Eoghainn MacLean – Ampersand Advocates
Timothy Young – Ampersand Advocates ‘He is a fierce advocate who you want on your side in a contentious matter.‘
Band 2
Nicholas McAndrew – Ampersand Advocates ‘An incredibly able junior with a very calm, measured and methodical way of approaching cases. He is conscientious, and clear and concise in his advocacy.’
Ross Anderson – Ampersand Advocates ‘He is an impressive court performer and provides solid commercial advice.’
Giles Reid – Ampersand Advocates ‘Giles has an exceptional knowledge of Scottish property law. He is diligent, attentive and very user-friendly.’
Employment
Aidan O’Neill KC – Ampersand Advocates ‘He is an excellent communicator and exceedingly bright. He is also wonderfully adept under pressure.’
Full listings, including all Scottish rankings can be viewed on the Legal 500 website here.
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