Ampersand silk helps secure important outcome in discrimination case for MP
Ampersand’s Aidan O’Neill KC produced a comprehensive opinion on the Equality Act, which has helped Joanna Cherry KC MP successfully argue a discrimination case against The Stand Comedy Club. The comedy club had threatened to pull an Edinburgh Fringe show featuring Joanna Cherry, reversed its decision.
Instructed by David McKie of Levy & McRae, the positive response from The Stand was the result of a focused letter and Counsel’s Opinion, leading to an early, quick and amicable resolution.
The client published the letter and Senior Counsel’s Opinion that can be viewed here and here.
The SPLG Annual Conference 2023
* External provider: Scottish Public Law Group *
Book online here
Keynote speech from Lord Sales, Justice of the Supreme Court of the United Kingdom.
Essential legal update briefings will be offered by:
- Douglas Ross KC, Ampersand Advocates, providing the indispensable Scots Public Law update from the last year;
- Ros Foster, a leading Public Law practitioner, updating on key English public law developments; and
- Lesley Irvine, Axiom Advocates, highlighting significant human rights cases in the UK and European Courts.
We will also have insightful and topical contributions in panel sessions on issues including:
- The future of post EU devolution for Scotland & Northern Ireland – Katy Hayward (Queens University Belfast) and Charles Livingstone (Brodies)
- Public law cases with an environmental and climate change focus – Estelle Dehon KC (Cornerstone Barristers) and Professor Liz Fisher (Corpus Christi College, Oxford)
Further speakers will be announced shortly.
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.
Billy Graham Evangelistic Association v Scottish Event Campus Limited  SC GLW 33
Sheriff John N McCormick has found that the Scottish Event Campus Limited discriminated against Billy Graham Evangelistic Association by terminating an agreement on the basis of a protected characteristic in terms of the Equality Act 2010 following a hearing at Glasgow Sheriff Court. The court awarded damages to the extent of £97,325.32.
This case was raised within the Commercial Court at Glasgow Sheriff Court. The case was decided by Sheriff John N. McCormick.
In brief, on 31 July 2019 the Billy Graham Evangelistic Association hired the SSE Hydro Arena from Scottish Event Campus Limited for an event to be known as the “Franklin Graham Event” on 30 May 2020. This was to be the opening date for a UK tour organised by the pursuer at which Franklin Graham would speak.
It was accepted that Franklin Graham is a contentious American evangelist, son of the late Billy Graham.
The pursuer claimed that the defender had discriminated against the pursuer by terminating the agreement on the basis of a protected characteristic in terms of the Equality Act 2010, namely, religion and philosophical belief.
The case deals with cornerstone rights and freedoms – religion and philosophical belief – within a pluralist society. Both the pursuer and the defender are substantial institutions having international profiles.
The judgment includes a preface (paragraphs  to  ) within which Sheriff McCormick seeks to avoid misunderstanding and explains that the 2010 Act applies to all; that the defender conceded that the event was to be a Christian Evangelical outreach event and that the court does not adjudicate on the validity of religious beliefs.
Here the religion is Christianity based on an interpretation of the Bible. It may be an interpretation with which others disagree, but that is irrelevant.
The event was to be an unticketed free Christian evangelical outreach event for over 12,000 people. The intended audience was the general public – whether holding religious beliefs or not and irrespective of sexuality.
Between November 2019 and January 2020 both parties became aware of growing opposition to the tour. This protest included social media, an online petition and some mainstream press coverage.
Protesters claimed that Mr Graham might use the event to air controversial views on a variety of subjects. This was not the defender’s position at proof. At proof it was accepted that the event planned for 30 May 2020 would have been a lawful Christian evangelical outreach event.
On 27 January 2020 Franklin Graham issued a Facebook post explaining the purpose and inviting members of the LGBTQ+ community to the event.
Following a board meeting on 29 January 2020 the defender terminated the agreement with the pursuer (para )
At proof the defender maintained that the contract was terminated solely due to concerns regarding the possibility of protest outside and inside the venue. While security issues and possible protest were discussed at the board meeting on 29 January 2020, the court found that these were not the sole or even the main reason for the event being cancelled.
The defender’s board minutes disclosed that, for example, the board discussed what might be said at the event and “we have to be careful of being judge and jury if the law hasn’t been broken” and “the nature around the event is darker” – finding in fact (23)
The court held that in terms of the Equality Act 2010 a protected characteristic (here: religion and philosophical belief) must have nothing to do with the defender’s decision to terminate the agreement, otherwise the court must find in favour of the pursuer.
There is no business case defence to discrimination. The court found that the defender was under pressure to cancel from its principal shareholder (Glasgow City Council); that the defender was concerned that artists might refuse to play at the venue and its sponsor considered that the event was not compatible with its values.
Glasgow City Council’s representatives on the board made its position clear at the board meeting on 29 January. After the meeting Glasgow City Council wrote to the board asking for the event to be cancelled (a copy of the letter is quoted at paragraph ).
On the same day the defender wrote to the pursuer cancelling the agreement (paragraph ).
The basis now claimed for cancelling the event (security and protest) did not feature in the in the letter from Glasgow City Council and, more importantly, not in termination letter issued by the defender to the pursuer.
In particular, the letter from Glasgow City Council included: “Glasgow is well known as a city which is friendly to all people, but particularly including from the LGBTQ and Muslim communities. I do not want to send a message to those communities that the Council prepared to welcome any person who has the potential to make such comments”. In court the defender accepted that the event was to be a Christian evangelical outreach event.
At paragraph  the court found that lawful opinions based here on religious or philosophical belief (whether mainstream or not) are not to be preferred one over the other. All are protected.
Although issues of security and protest were considered by the defender’s board on 29 January, those were not the sole or main reason why the event was cancelled. In terminating the agreement the defender made no reference to issues of security or protest.
When issuing press releases the defender also made no reference to issues of security or protest.
Opinion of the court
The court found (at finding in fact (37)) that by terminating the agreement the defender directly discriminated against the pursuer in that it treated the pursuer less favourably than it would have treated others. It did so because of a protected characteristic, namely, the religious or philosophical beliefs of the pursuer and Franklin Graham. It acted under pressure from others including its shareholder, its sponsor and for commercial considerations.
Aspects of the 2010 Act and, in particular, the remedies available to a court had not been litigated previously in Scotland.
The court considered the various remedies available to a court in Scotland. The first remedy was one of declaratory. The defender accepted that if a breach of a protected characteristic had been established, then there could be no objection to a declaratory. The court made such a declaration.
The pursuer had sought a rescheduling of the event. Four other venues on the tour arranged for 2020 had been rescheduled. The court held that this was an appropriate remedy in this case but, for the reasons outlined at paragraphs  –  a court-ordered rescheduling would not be feasible in this particular case. At paragraph  the court expresses its opinion in forthright terms.
The pursuer had also sought an apology. At  the court concluded that a court-ordered apology (over and above the declarator) would be forced, of little value and insincere.
In relation to damages, the court observed that in Scotland damages are compensatory, not penal. The 2010 Act did not provide for aggravated damages in Scotland.
Other jurisdictions have greater flexibility in relation to remedies so as to encourage compliance with the Act.
The pursuer had sought damages from the defender for expenses incurred throughout 2020. The court found that this was excessive and that, for the reasons given at paragraph  the pursuer should have realised by 30 June 2020 at the latest that the event would not have been rescheduled. The court was critical of some of the items included in the defender’s schedule of losses. The court awarded damages to the extent of £97,325.32.
At paragraph  the court made certain observations as to whether, in this particular case, the remedy fits the wrong.
Sheriff McCormick’s judgment can be viewed here.
Aidan O’Neill KC for the successful pursuer, instructed by Balfour + Manson
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.
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
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.
‘Very helpful and responsive.’
‘Considerable strength in depth.’
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.‘
Susanne Tanner KC
Timothy Young – Ampersand Advocates ‘Timothy has a pragmatic approach to cases. He is an extremely safe pair of hands.’
Michael Way – Ampersand Advocates ‘Michael is exceptionally thorough and meticulous, very insightful in his drafting, and exceptional on his feet.‘
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.
‘Good pool of advocates.’
‘Extremely efficient, friendly and responsive.’
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.’
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.’
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.’
Michael Way – Ampersand Advocates ‘Michael is very knowledgeable, and builds a strong rapport with solicitors and clients alike.’
Personal Injury and Medical Negligence
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.
‘Very high calibre of advocates.’
‘The stable has a wealth of experience.’
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.’
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
James McConnell – Ampersand Advocates ‘A well respected junior. He is organised, extremely thorough and diligent. Excellent with clients and experts.’
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
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‘.
‘Ampersand is very responsive and easy to work with.’
‘Ampersand is a strong stable with a fantastic choice of advocates.’
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.’
Eoghainn MacLean – Ampersand Advocates
Timothy Young – Ampersand Advocates ‘He is a fierce advocate who you want on your side in a contentious matter.‘
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.’
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.