New appointments of First Standing Junior and panel of Standing Junior Counsel to Scottish Government for Ampersand

Ampersand is delighted to announce that Paul Reid has been appointed First Standing Junior to the Scottish Government, alongside a new appointment to the Scottish Government’s panel of Standing Junior Counsel for Tim Young.

They join fellow Ampersand member Laura-Anne van der Westhuizen on the panel. The panel of counsel may be instructed on any matter falling within the Scottish Government’s remit.

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Ampersand Advocates Top Rankings success in latest Chambers and Partners UK Bar Guide

Ampersand has 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 2021.

Ampersand received 58 listings across 14 areas of practice, ranking as top tier (band 1) in Clinical Negligence as a Set, and band 2 in Administrative & Public law, Civil Liberties & Human Rights, Commercial Dispute Resolution, Planning & Environment, Personal Injury and Restructuring/Insolvency as a Set. 5 members are noted as “star individuals”.

Noted as a Band 1 set for Clinical Negligence, “Ampersand Advocates retains its reputation as a market-leading stable for clinical negligence matters, garnering praise from instructing solicitors who describe it as “a well-organised stable with a good range of excellent advocates.” 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 multi-party actions stemming from the use of medical equipment, and several of its advocates have recently been involved in the Scottish Mesh Litigation, a class action in which over 500 claims were brought against the NHS in connection with allegedly defective vaginal mesh.”. Our rankings include 2 “Star Individuals”, Maria Maguire QC and David Stephenson QC, with 9 further silks and 6 juniors also ranked – Simon Bowie QC, Jamie Dawson QC, Simon Di Rollo QC, Una Doherty QC, Lisa Henderson QC, Vinit Khurana QC, Geoffrey Mitchell QC, Graham Pimrose QC, Lauren Sutherland QC, Fiona Drysdale, Mark Fitzpatrick, Archie MacSporran, James McConnell, Paul Reid and Phil Stuart.

Band 2 listings include Administrative & Public Law where Ampersand is praised “houses 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 QC, along with Douglas Ross QC, Laura-Anne van der Westhuizen and Paul Reid.

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 QC and Douglas Ross QC.

In Commercial Dispute Resolution Chambers state Ampersand is “well renowned for its consistent involvement in high-profile commercial disputes. The stable offers a large team comprising highly rated advocates at the senior and junior level. 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 QC, Craig Sandison QC, Ross Anderson, Graeme Hawkes, Giles Reid, Paul Reid, Usman Tariq and Tim Young.

Within Personal Injury Ampersand “houses a number of dedicated senior and junior advocates, and instructing solicitors praise the “strength and depth of counsel available at the stable.” 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 RTAs and workplace accidents. The team is also well regarded for its expertise in complex product liability and occupier’s 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.” Rankings include “Star Individuals” Maria Maguire QC and Graham Primrose QC with other ranked Dorothy Bain QC, Isla Davie QC, Simon Di Rollo QC, Lisa Henderson QC, Douglas Ross QC, Chris Marney and Louise Milligan.

Ampersand’s strong Planning & Environment team was recognised as “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 the public inquires into the development of the former Royal High School in Edinburgh and the proposed Coul Links golf course development. One source says: “The chambers is excellent in terms of the calibre of advocates.””. Rankings include Malcolm Thomson QC as “Star Individual”, Marcus McKay QC, Ailsa Wilson QC and Laura-Anne van der Westhuizen.

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 QC and Usman Tariq.

There are individual rankings in Real Estate for Robert Howie QC, Craig Sandison QC, Ross Anderson, Giles Reid and Tim Young; Agriculture and Rural Affairs for Laura-Anne van der Westhuizen; Employment for Russell Bradley, Information Technology and Intellectual Property for Usman Tariq; Professional Negligence for Chris Marney and Paul Reid; and Tax for Ross Anderson.

The Ampersand clerks receive wide praise being described as “professional, friendly and accommodating at all times…. very responsive… they make every effort to accommodate almost impossible demands” and that Ampersand “is an extremely well run and efficient stable”.

The full rankings can be viewed on the Chambers and Partners website here.

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New edition of Paul Reid’s Concise guide to Public Law book published

The fourth edition of W. Green’s Concise guide to Public Law by Ampersand’s Paul Reid has been published. The book provides comprehensive, up-to-date and accessible coverage of the key areas of Scottish public law and can be found on the Sweet & Maxwell website here.

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Mark Boni

Mark Boni called to the Bar in 2020, having qualified as a solicitor in 2014. Since 2022, Mark has been ranked by Legal 500 as a tier 2 leading junior in commercial disputes and since 2024 has been ranked as a tier 1 leading junior in private client and family disputes. In the UK Bar Guide 2025, Chamber & Partners identified him as an “up and coming” junior counsel in commercial dispute resolution as well as real estate litigation.

Mark has experience in a wide range of commercial and private law litigation, with a particular interest in contractual and property disputes, prescription, personal insolvency and private client litigation.

He regularly appears for pursuers and defenders at proofs, debates, procedural hearings, opposed motions and interim orders hearings.

Mark has experience, both as a solicitor and at the Bar, of litigating in the Sheriff Courts, Sheriff Appeal Court, Lands Tribunal, Court of Session (Outer and Inner Houses) as well as the UK Supreme Court. Mark also has experience in alternative dispute resolution, including arbitration and mediation.

Whilst devilling, Mark was a Lord Hope Scholar and was involved in a variety of complex and high value cases, including professional negligence claims and intellectual property actions.

Since 2012, Mark has tutored part-time at the University of Edinburgh. He presently tutors “Commercial Law” and “Contract and Unjustified Enrichment” and previously tutored “Public Law of the UK and Scotland” and “Public Law and Individual Rights”.

Mark wrote the reissue edition of “Prescription and Limitation” in the Stair Memorial Encyclopaedia (published 2023) and has rewritten the Scottish prescription and limitation online content for Lexis+.

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Euan Scott

Euan Scott called to the Bar in 2020 having worked in one of Scotland’s leading litigation firms.

He has a broad civil practice with a particular focus on medical and professional negligence, and commercial dispute resolution (with his experience concentrating on commercial contract disputes, property disputes, contentious construction and insurance).

He also has an interest in media law and insolvency issues and has extensive experience of public inquiries.

Euan was appointed as Standing Junior Counsel to the Scottish Government in 2022

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Judicial review: the rule of law at heart?

Article by Geoffrey D Mitchell QC

The Wightman article 50 case highlighted preserving the rule of law as a particular focus for judicial review, but how far can that be taken? This article considers two recent cases of interest.

Is it possible to identify “trends” in litigation? That there are increases in certain types of litigation is undeniable. Consider the spate of cases a number of years ago on the right to a fair trial, and delay, in terms of article 6 of the European Convention on Human Rights. At present we seem to be witnessing an increase in judicial review.

Since 2016 the number of judicial review petitions presented to the court has increased by approximately 16%. Last year, 2019, saw a rise of about 8% over the 2018 figure. These petitions cover the areas that traditionally see applications to the supervisory jurisdiction of the court (immigration and asylum, prisoners’ rights, local authority decisions, etc). However, it is possible to identify an “inventive” approach by parties and their representatives in the decisions that are being challenged, matched by an appetite on the part of the court to engage with such applications. It is suggested that this can be traced to the 2018 decision in Wightman v Secretary of Sate for Exiting the European Union 2019 SC 111.

Recap on Wightman

Readers are unlikely to have forgotten Wightman. A group of MPs, MSPs and MEPs brought a petition for judicial review, seeking a declarator that specified whether, when and how a notice to leave the EU under article 50 of the Treaty on European Union could unilaterally be revoked. The Inner House agreed to refer the case to the EU Court of Justice for a preliminary ruling on the issue.

Lord Drummond Young said that the declarator sought fell “squarely within the fundamental purpose of the supervisory jurisdiction” (para 68). That “fundamental purpose” was to ensure that all acts of government were carried out within the rule of law. He would have no hesitation in rejecting arguments based on “the detailed scope of previous descriptions of the supervisory jurisdiction, if they appear to stand in the way of the proper enforcement of the rule of law” (para 67, my emphasis).

It is clear that practitioners sat up and took note of this dictum, since it appears time and again in recent applications for judicial review. We will focus on two applications in particular. One was more successful than the other, but both show a desire to challenge decisions that are perceived to breach the “rule of law”. One of them also shows the limits of Lord Drummond Young’s dictum.

McHattie v South Ayrshire Council [2020] CSOH 4

The petitioner’s son was a 32 year old man who suffered from severe learning and mobility issues. For 13 years, five days a week, he had attended an adult care centre. The centre was an important part of his life, and both he and the petitioner relied heavily on it. A business plan produced by South Ayrshire Council recommended closure of the centre. Pursuant to its obligations under the Equality Act 2010, the council was obliged to carry out an equality impact assessment prior to closure.

A decision was taken to close the centre, yet no such assessment was performed, and no consultation was carried out with the petitioner or any of the other users of the centre. The centre was due to close on 24 December 2019, the majority of the staff including the manager had accepted severance packages, and all the users of the centre, with the exception of the petitioner’s son, had accepted alternative provisions of care. The odds seemed stacked against the petitioner and his advisers.

However, the court found, first, that in failing to carry out an impact assessment, the council had failed in its duty under the Equality Act, and had acted unlawfully. Secondly, the petitioner and his family had used the centre for many years, and had a legitimate expectation that they would be consulted on any proposal that affected the future of the centre. The failure to consult “went to the heart” of the council’s decision making process, and rendered it “fundamentally flawed” (para 42). Finally, and most importantly, the court reduced the council’s decision to close the centre. The effect was that the council required to keep the centre open. As the court said, the council had brought the situation on itself. Decisions of this type could not be “taken by stealth; they must be open and transparent and comply with the duties which Parliament has imposed upon the respondent” (para 55).

This is a remarkable case. It shows what can be achieved by a determined client, skilled legal advisers and the application of judicial review principles. The core feature of the case is that the council had acted rashly and unfairly, to the prejudice of members of the public. As the court remarked, “The fundamental principle at stake is the rule of law. An illegal decision is an affront to the rule of law” (para 52). The parallels with Wightman are obvious.

Abundance Investment Ltd v Scottish Ministers [2020] CSOH 12

In this case the petitioners tested just how far the court was prepared to develop the supervisory jurisdiction of the court, in furtherance of “the proper enforcement of the rule of law”.

Under the Environmental Protection Act 1990 the Scottish ministers can make grants of financial assistance for innovative, low carbon infrastructure projects. Grants are made on condition that the balance of the funding is provided from other sources by the applicant (known as “match funding”). A company applied for a grant for the construction of an anaerobic fermentation process plant at Grangemouth. The ministers offered a grant for approximately £9 million, subject to various terms and conditions. In due course the applicant company claimed some of the grant money, but the ministers concluded that certain financial conditions of the grant agreement had not been met and refused to pay the grant.

Readers may not be surprised to learn that litigation followed. Judicial review proceedings were raised, not by the applicant company, but by two third parties: a company which operated a crowdfunding platform and which had helped provide some of the match funding; and a director of the applicant company who had invested money in the company. This immediately raised issues of competency, first, because other than in limited circumstances, contractual disputes are not amenable to judicial review; and secondly because the petitioners were not even parties to the contract.

The petitioners clearly had to accept that the source of the dispute was contractual, and that they were not the recipients of the grant. Nevertheless, they argued that the ministers were a public body. Under the 1990 Act they had been given a power to decide, and in so doing they had failed to comply with the law. Their decision to refuse payment of the grant was unlawful and irrational. Relying on Wightman, the petitioners argued that the formerly restrictive approach to competence was no longer appropriate. What was important was the proper enforcement of “the rule of law”. Judicial review existed to benefit those who did not have a direct legal right to enforce. Those were the circumstances in the present case.

The court found that, while there are very limited circumstances in which judicial review may be used to challenge decisions made by one party under a contract, that did not apply here. The elements of “the rule of law” that the petitioners sought to enforce were, in reality, the terms and conditions of the contract. Further, if parties to the contract could not use judicial review, then as a matter of principle it was difficult to see why an outsider to the contract should be allowed to use the procedure. To give third parties the right to challenge decisions of a contracting party as in “breach of the rule of law”, would make significant inroads into the principle of privity of contract, and could give rise to a multitude of actions (para 53).

Not surprisingly, the challenge was dismissed as not competent.

Unchanged foundations

It does seem that alleged breach of the rule of law has, of late, become something of a clarion call within the context of judicial review. Of course, as Lord Drummond Young pointed out, this has always been the underlying guiding principle for the court when considering applications to the supervisory jurisdiction. Yet it seems undeniable that Wightman has brought it to the fore, and inspired parties and their representatives to challenge decisions.

It remains to be seen whether it will have the effect of extending the limits of judicial review. As Abundance Investment shows, it will not be enough merely to invoke the phrase, if what is truly being attempted is alteration of the foundation stones of judicial review.

This article first appeared on the Law Society of Scotland’s Journal online on 6th April 2020Law Society of Scotland’s Journal online on 6th April 2020

The Author

Geoffrey D Mitchell QC, Ampersand Advocates

The author is grateful to the Office of the Keeper of the Rolls, Supreme Courts, Edinburgh for its assistance in the provision of certain statistical information contained within the article. The views expressed are those of the author.

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