*Central Law Training Scotland event*
Speakers include Ampersand’s Susanne Tanner QC speaking on “The use of Arbitration in Personal Injury cases”.
Full details of the other speakers and how to sign up on the CLT website here.
*Faculty of Advocates event*
To provide information, explanation and discussion about the new rules and their implications for litigation practitioners which have been designed to facilitate the more efficient exchange of information.
Registration, tea and coffee will be available from 4 pm. Event to be followed by networking drinks for attendees.
The event will be chaired by The Hon. Lord Armstrong
The speakers for this event include:
AGENDA
CHAIR: The Hon. Lord Armstrong
4.00 to 4.30 Registration
4.30 to 4.40 Welcome and opening remarks from Chair
4.40 to 5.00 Maria Maguire QC: Introduction and overviewProviding a background to the changes, how the new rules and practice note were developed and the key objectives for the new process. How this procedure aims to improve efficient progress of actions, through early disclosure, discussion and co-operation.
5.00 to 5.20 Amber Galbraith, Advocate: New Rules in Practice. Consideration of the practice note and focus on what will be required in terms of particular steps now to be taken at an earlier stage in the process: additional documents to be considered/drafted, what would be expected from Counsel and how that could/should be managed and organised with the assistance of the Clerks.
5.20 to 5.40 Darren Deery, Solicitor, Partner. Drummond Miller:New Rules in Practice, from the perspective of a pursuer’s agent. To consider what changes in approach or methodology might be required from a pursuers’ agent. For example, what investigations will require to be carried out at an earlier stage, and what additional information should be obtained or considered. Also, to address how earlier positive engagement with Counsel and the defenders’ representative might be managed.
5.40 to 6.00 Norma Shippin, Director of the CLO and Legal Adviser to the NHS in Scotland: New Rules in Practice, from the perspective of a defenders’ agent. To address the new rules, as they will affect the defenders’ agents in practice. What investigations and information should be obtained, and how effective liaison and discussion with pursuer’s agents might be managed.
6.00 to 6.30 Q&A/panel discussion
6.30 Closing remarks from Chair.
DRINKS
Full details and how to sign up on Eventbrite here.
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 2020.
Ampersand received 60 listings across 16 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, Product Liability and Restructuring/Insolvency as a Set. 5 members are noted as “star individuals”.
Noted as a Band 1 set for Clinical Negligence, Ampersand has 18 rankings in this area, including 2 “Star Individuals”. The guide says “Ampersand dominates the Scottish medical negligence market due to its outstanding reputation and impressive offering of advocates. It has a wide selection of juniors and silks at the stable, who act on behalf of both claimants and defenders. Members have far-reaching expertise, covering all areas of clinical negligence, including the most severe birth injuries, fatal surgical errors and cancer cases, as well as widely publicised group actions concerning medical device liability, such as the pelvic mesh litigation. Instructing solicitors point out that the set “has depth and very strong, specialised practitioners.” The clerks also receive high praise “The service is first class. The clerks are extremely approachable, very helpful and nothing is too much trouble for them.” “Alan Moffat is the lead clerk and is a good point of contact. He is helpful and accommodating, so I can go directly to him if I need something urgently.” The “Star Individuals” are Maria Maguire QC and David Stephenson QC.
Band 2 listings include Administrative and Public law where Ampersand is noted as a “Highly regarded stable which possesses several standout advocates acting in important constitutional, commercial and human rights cases. The advocates represent petitioners and respondents in judicial reviews, advise public bodies on the interpretation of regulations and legislation, and act for core participants in public inquiries”. In Civil Liberties & Human Rights the Band 2 listing notes Ampersand as a “A highly regarded stable, Ampersand Advocates has members who represent both claimants and defendants in high-profile civil liberties and human rights cases. Advocates regularly appear at the highest courts in Scotland and the UKSC, as well as the ECtHR and CJEU.”.
In Commercial Dispute Resolution it states “Ampersand Advocates is a highly regarded stable, noted for its involvement in a wide range of complex commercial disputes. The stable houses a number of experienced commercial advocates at both silk and junior levels, and attracts instructions from a diverse client base that includes several financial institutions and large corporates. Its advocates offer expertise in professional negligence, construction and commercial contracts disputes, as well as matters involving intellectual property, planning and insolvency.”
Ampersand’s Commercial expertise is further noted in Restructuring and Insolvency, which includes “Star Individual” David Sellar QC, stating Ampersand “Ampersand Advocates is a strong stable, housing some of the most distinguished restructuring and insolvency advocates in Scotland. It is a go-to stable for companies and their directors, banks and various government departments seeking restructuring advice and representation in major insolvency cases. Members are also regularly instructed by insolvency practitioners to assist with asset recovery matters, and offer significant expertise in international asset-tracing.”
Ampersand’s Personal Injury work is again acknowledged with the guide noting “A highly regarded stable in the personal injury market, Ampersand Advocates retains its reputation as a go-to stable for all manner of injury claims. In addition to offering representation to pursuers in complex and high-value catastrophic and fatal injury claims, the stable’s advocates are also regularly instructed by defenders, and have experience acting on behalf of government agencies and several major insurers. Areas of particular strength for the stable include cases arising from RTAs, accidents at work and accidents abroad, and its advocates are noted for their expert handling of complex employers’ and occupiers’ liability claims. The tenants are also frequently called upon to represent a variety of parties, including local authorities, health boards and bereaved families in fatal accident inquests. Instructing solicitors praise Ampersand as “a very professional stable which provides a high level of service,” adding that “you can tell that everyone there really cares about what they’re doing.”. The clerks get a special note for being “very organised and you can rely on the team to get back to you.” “The clerks are very good at dealing with any queries and are very flexible and very friendly – you never have any difficulties getting in touch with them.” “The clerking team is friendly, reliable, quick at responding and always happy to help.” The “very proactive and easy to deal with” Alan Moffat is the head clerk.” The listing includes Maria Maguire QC and Graham Primrose QC as “Star Individuals”.
In Planning and Environment it states “Ampersand Advocates is distinguished for the substantial planning and environmental expertise of its advocates. It acts for local authorities and all kinds of developers in cases heard at all levels of the court system, including the Supreme Court. The environmental aspects of energy developments are a great source of instructions for Ampersand Advocates. Members of the stable are regularly involved in high-profile matters, including the public inquiry into the refusal of planning permission for the development of the Royal High School in Edinburgh, a challenge to the planning consent for Aberdeen FC’s new stadium and a Supreme Court case dealing with the complexities of European law in relation to a wind farm development.” This includes “Star Individual” Malcolm Thomson QC.
Ampersand is also a Band 2 set in Product Liability stating “A respected presence in the product liability field, with a strong track record of representing pursuers and defenders in a broad array of claims. The stable is able to draw on its impressive capabilities in professional liability and personal injury.”
Ampersand’s full listings can be viewed on the Chambers and Partners website here.
Ampersand is delighted to be once again be recommended as a top-tier set by The Legal 500 UK Bar Directory in their latest listings for 2019 published today.
The guide says “‘From a user’s perspective’, Ampersand Advocates ‘goes above and beyond at all times to assist wherever possible’. Like the other Scottish stables, a diverse range of work comes through its doors, however, tort, real estate, and commercial matters are key strengths, and arbitration is a growing area of focus. ‘All the clerks are friendly, accommodating and very professional’, however at the most senior level Alan Moffat ‘will go out of his way to make sure you get the right counsel for the job’, and his deputy Sheena Hume is ‘particularly efficient and easy to deal with’. Vinit Khurana QC and Una Doherty QC took silk in 2018.”
Ampersand has 36 listings across 10 areas of practice in the Legal 500 UK 2019 guide. The Scottish bar section can be viewed here.
Russell Bradley of Ampersand Advocates acts for employers in a wide range of first instance matters, with particular expertise of defending whistle-blowing and unfair dismissal claims.
Russell Bradley – Ampersand Advocates ‘ Extremely tenacious when needed and great with clients. ’
Usman Tariq at Ampersand Advocates is highly recommended for contentious intellectual property matters, as well as maintaining a substantial presence in the IT sector, particularly in matters concerning gaming and digital applications. Recent instructions include a substantial trade mark infringement and passing off dispute between two manufacturers of electronic cigarettes, where Tariq acted for the pursuers, as well as conducting breach of interdict cases on behalf of large rights-holders such as Sky and the Performing Right Society.
Usman Tariq – Ampersand Advocates ‘ The best all-round IP junior in Scotland. ’
Facts
Two cyclists (Ms Fairley and Mr Lowdean) suffered injury in accidents while crossing tram rails at an unsafe angle. Ms Fairley’s accident occurred outside Haymarket Station in October 2013. Mr Lowdean’s accident occurred in Princes St in November 2012.
Risks
The pursuers identified two key risks posed by tram rails to cyclists: (1) a risk of the tyre or tyres slipping on the metal rails; and (2) a risk of the tyre or tyres becoming caught in the metal groove of the rail. There was no dispute that these risks can be minimised if the rails are crossed at right angles. As the angle shallows so the risk of the wheel slipping or becoming caught increases. Crossing at an angle lower than 45 degrees increases the risk of an accident to an intolerable level.
Duties
The pursuers maintained that the defenders [the roads authority] had a duty to take reasonable care to:
and
The defenders’ maintained:
Issues
Quantum was agreed in both cases. The Lord Ordinary formulated the question of liability as “whether the features at the two locations (Haymarket and Princes Street) presented a significant risk of harm to cyclists and of which the defenders knew or ought to have known”? [48]
Accordingly, the task for the Court was to decide in respect of each location:
Decision
Lady Wolffe found liability to be established and granted decree in favour of each pursuer.
Both pursuers were found to be “credible and reliable in the essentials of their evidence” [170]. The Lord Ordinary found that the pursuers “sustained an accident in the circumstances they each described” [173].
In relation to Haymarket she found that there was no safe angle achievable for a cyclist who remained in the traffic lane as it crossed over the tram rails. [184]. The road layout constituted a significant hazard to cyclists. In relation to Princes Street the problem occurred because a cyclist would reasonably adopt a position in between the tram rails in the right-hand lane of Princes Street while heading east. As a consequence, in order to cycle out from between the rails Mr Lowdean would have been unable to achieve an angle of 45 degrees. Any angle he was able to achieve was below that threshold and unsafe {188]
Having considered the evidence, Lady Wolffe concluded that the road layout at Haymarket and Princes Street constituted a significant hazard to cyclists, which was “inherent in the tram infrastructure” [192]. The particular risk in both locations was being required to cross the rails at too shallow an angle and having to do so while following the expected line and direction of travel. [192]
The defenders’ contention that the risk was obvious and accordingly no duty arose was rejected. It was “too simplistic” to note that the rails were not concealed. The risk was posed by tram rails in the roadway running for some distance alongside a cyclist’s direction of travel and which the cyclist is obliged at some point to cross at too shallow an angle. [193] [194]. In any event even if the risk was obvious the road layout and infrastructure afforded the pursuers little realistic chance safely to negotiate or avoid it. [194]
The specific risks at both locations were known or reasonably foreseeable to the defenders. They had been identified in road safety audits carried out before the accidents [195].
Finally, the defenders’ pleas of contributory negligence were rejected. [200] – [204] The submission for the pursuers was that each pursuer was aware of the tram lines, knew of the need to cross them at as wide an angle as possible, and tried to do so at an appropriate speed in the road conditions at the time. Both pursuers did the best that they could under the circumstances. It was not suggested to them in cross-examination that they had failed to take care in any specific respect. There was no suggestion that they had failed in any respect to observe the terms of the Highway code [Rules 59 to 82 Highway Code 7/12] There was no evidential basis for any finding of contributory negligence.
Representation
Ampersand’s Simon Di Rollo QC appeared for the pursuers.
Elizabeth Fairley v Edinburgh Trams Ltd and City of Edinburgh Council [2019] CSOH 50
Iain Lowdean v TIE Ltd and City of Edinburgh Council [2019] CSOH 50
Elizabeth Fairley v Edinburgh Trams Ltd and City of Edinburgh Council [2019] CSOH 50
Iain Lowdean v TIE Ltd and City of Edinburgh Council [2019] CSOH 50
28 June 2019
Simon Di Rollo QC secures victory for cyclists injured on tram rails on the street section of the Edinburgh tram system
Facts
Two cyclists (Ms Fairley and Mr Lowdean) suffered injury in accidents while crossing tram rails at an unsafe angle. Ms Fairley’s accident occurred outside Haymarket Station in October 2013. Mr Lowdean’s accident occurred in Princes St in November 2012.
Risks
The pursuers identified two key risks posed by tram rails to cyclists: (1) a risk of the tyre or tyres slipping on the metal rails; and (2) a risk of the tyre or tyres becoming caught in the metal groove of the rail. There was no dispute that these risks can be minimised if the rails are crossed at right angles. As the angle shallows so the risk of the wheel slipping or becoming caught increases. Crossing at an angle lower than 45 degrees increases the risk of an accident to an intolerable level.
Duties
The pursuers maintained that the defenders [the roads authority] had a duty to take reasonable care to:
and
The defenders’ maintained:
Issues
Quantum was agreed in both cases. The Lord Ordinary formulated the question of liability as “whether the features at the two locations (Haymarket and Princes Street) presented a significant risk of harm to cyclists and of which the defenders knew or ought to have known”? [48]
Accordingly, the task for the Court was to decide in respect of each location:
Decision
Lady Wolffe found liability to be established and granted decree in favour of each pursuer
Both pursuers were found to be “credible and reliable in the essentials of their evidence” [170]. The Lord Ordinary found that the pursuers “sustained an accident in the circumstances they each described” [173].
In relation to Haymarket she found that there was no safe angle achievable for a cyclist who remained in the traffic lane as it crossed over the tram rails. [184]. The road layout constituted a significant hazard to cyclists. In relation to Princes Street the problem occurred because a cyclist would reasonably adopt a position in between the tram rails in the right-hand lane of Princes Street while heading east. As a consequence, in order to cycle out from between the rails Mr Lowdean would have been unable to achieve an angle of 45 degrees. Any angle he was able to achieve was below that threshold and unsafe {188]
Having considered the evidence, Lady Wolffe concluded that the road layout at Haymarket and Princes Street constituted a significant hazard to cyclists, which was “inherent in the tram infrastructure” [192]. The particular risk in both locations was being required to cross the rails at too shallow an angle and having to do so while following the expected line and direction of travel. [192]
The defenders’ contention that the risk was obvious and accordingly no duty arose was rejected. It was “too simplistic” to note that the rails were not concealed. The risk was posed by tram rails in the roadway running for some distance alongside a cyclist’s direction of travel and which the cyclist is obliged at some point to cross at too shallow an angle. [193] [194]. In any event even if the risk was obvious the road layout and infrastructure afforded the pursuers little realistic chance safely to negotiate or avoid it. [194]
The specific risks at both locations were known or reasonably foreseeable to the defenders. They had been identified in road safety audits carried out before the accidents [195].
Finally, the defenders’ pleas of contributory negligence were rejected. [200] – [204] The submission for the pursuers was that each pursuer was aware of the tram lines, knew of the need to cross them at as wide an angle as possible, and tried to do so at an appropriate speed in the road conditions at the time. Both pursuers did the best that they could under the circumstances. It was not suggested to them in cross-examination that they had failed to take care in any specific respect. There was no suggestion that they had failed in any respect to observe the terms of the Highway code [Rules 59 to 82 Highway Code 7/12] There was no evidential basis for any finding of contributory negligence.
Representation
Ampersand’s Simon Di Rollo QC appeared for the pursuers.
