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
Back
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 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.
Back
Ampersand Advocates ‘goes above and beyond at all times’ in latest Legal 500 UK Bar listings
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.
Civil liberties, human rights, public inquiries, and public and administrative law (including local government)
Key areas of work at Ampersand Advocates include EU law, judicial review, and procurement matters. Aidan O’Neill QC recently lead on behalf of the petitioners in Wightman v Secretary of State for Exiting the European Union, an Court of Justice of the European Union case concerning if it was possible for a member state to revoke its notification of intent to leave the European Union under Article 50.
Leading Seniors
Aidan O’Neill QC – Ampersand Advocates ‘ Intellectually impressive and creative in his approach to dealing with issues of public law. ’
Douglas Ross QC – Ampersand Advocates ‘ Highly intelligent and tenacious, with good common sense ’
Dorothy Bain QC – Ampersand Advocates ‘ Highly recommended for civil liberties work. ’
Leading Juniors
Laura-Anne van der Westhuizen – Ampersand Advocates ‘ A first-class legal mind who deals well with complicated cases. ’
Timothy Young – Ampersand Advocates ‘ Technically excellent in public procurement matters. ’
Commercial litigation
Ampersand Advocates is home to a strong contingent of commercial litigators, with experience in a wide range of commercial cases. Notable recent highlights include Take-Two Interactive Software Inc and Rockstar Games Inc v Aaron Renicks, in which Usman Tariq acts, as junior to Roddy Dunlop QC for the developers of Grand Theft Auto who are pursuing a claim against the developer of a modification for the game. Giles Reid recently acted for the borrower in a case concerning the oral variation of a loan agreement, as well as interim orders preventing the lender from commencing bankruptcy.
Leading Seniors
Alan Dewar QC – Ampersand Advocates ‘ Hugely experienced, completely unflappable and always fights his client’s corner. ’
Robert Howie QC – Ampersand Advocates ‘ His depth of knowledge in commercial matters is unparalleled. ’
Leading Juniors
Ross Anderson – Ampersand Advocates ‘ Never afraid to take on even the largest of legal challenges. ’
Giles Reid – Ampersand Advocates ‘ A legal encyclopaedia. ’
Usman Tariq – Ampersand Advocates ‘ His advice and knowledge is consistently of the highest standard. ’
Company and insolvency
Members of Ampersand Advocates are particularly experienced in insolvency matters, acting for all parties in such cases. Of recent note, Timothy Young recently acted for the liquidators in Rowallan Asset Management Limited v Morris & Co, which involved a claim for gratuitous alienation (a transfer under value to dissipate assets) relating to a large agricultural property holding company.
Leading Seniors
David Sellar QC – Ampersand Advocates ‘ His technical knowledge of company and insolvency law makes him a go-to. ’
Leading Juniors
Timothy Young – Ampersand Advocates ‘ Clients appreciate his confident yet approachable demeanour. ’
Employment
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. ’
Intellectual property, information technology and media
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. ’
Personal injury and medical negligence
Ampersand Advocates is home to one of the key teams in personal injury and clinical negligence within Scotland, and has ‘real strength in depth’ across all levels of call. Members have significant expertise in all areas of such work, with recent cases including fatal accidents, medical device litigation, catastrophic injury and birth injury. A notable recent case for the set is Gibson v Babcock International, a leading case on the issue of secondary exposure to asbestos, in which Simon Di Rollo QC led for the pursuers.
Leading Seniors
Lisa Henderson QC – Ampersand Advocates ‘ Highly numerate, excellent at drafting complex schedules of loss and very personable. ’
Geoffrey Mitchell QC – Ampersand Advocates ‘ Highly respected by both health boards and claimant solicitors ’
Douglas Ross QC – Ampersand Advocates ‘ A relatively new silk who already posesses all the qualities of an experienced one. ’
Simon Bowie QC – Ampersand Advocates ‘ Recommended for significant clinical negligence cases. ’
Una Doherty QC – Ampersand Advocates ‘ Extremely reliable, quick-witted and efficient. ’
Maria Maguire QC – Ampersand Advocates ‘ Combines superb advocacy skills and a forensic attention for detail. ’
Simon Di Rollo QC – Ampersand Advocates ‘ Highly experienced in industrial disease claims. ’
Lauren Sutherland QC – Ampersand Advocates ‘ Leaves no stone unturned to find a path to a successful outcome. ’
Leading Juniors
Jamie Dawson – Ampersand Advocates ‘ Fantastic at dealing with complex medical evidence and technical details. ’
Fiona Drysdale – Ampersand Advocates ‘ Well-prepared, good with clients and has an eye for detail. ’
Chris Marney – Ampersand Advocates ‘ A very safe pair of hands with good commercial sense. ’
Jennifer Nicholson – Ampersand Advocates ‘
A strong negotiator who has achieved fantastic results for clients. ’
Planning, environmental and licensing
Ampersand Advocates is home to planning law specialists Marcus McKay QC and Laura-Anne van der Westhuizen, who are often instructed in complex or high-profile inquiries and appeals. Notable recent highlights include McKay’s representation of The Viking Wind Farm in a consent application under crofting legislation, and Westhuizen’s work on behalf of the Scottish ministers in an appeal lodged by a dairy farm following the refusal of planning permission for a large greenbelt development.
Leading Seniors
Marcus McKay QC – Ampersand Advocates ‘ Highly experienced in energy-related planning work. ’
Leading Juniors
Professional Negligence
Members of Ampersand Advocates are instructed by both pursuers and defenders in professional negligence cases, across the full range of industry sectors. Recent highlights include Midlothian Council v Bracewell Stirling, where Paul Reid acted as a junior to Alastair Duncan QC on behalf of the defenders, an architectural firm alleged to be liable for negligent ground investigations carried out by another company.
Paul Reid – Ampersand Advocates ‘ One to watch for professional negligence matters. ’
Property, construction and agriculture
Members of Ampersand Advocates are instructed in a wide range of commercial development and property disputes, as well as agricultural issues and nuisance claims. Timothy Young recently advised the defenders on several potential cases concerning property damage caused by incorrectly constituted mortar in the development of a large residential estate.
Leading Seniors
Leading Juniors
Ross Anderson – Ampersand Advocates ‘ Definitely one to watch for property litigation. ’
Timothy Young – Ampersand Advocates ‘ Exceptionally intelligent with a gift for honing in on the points that matter. ’
Tax, trusts and pensions
Ross Anderson at Ampersand Advocates has significant experience acting for HM Revenue and Customs in both the First-Tier and Upper Tribunals. He also appeared as appearing as a junior to Kieron Beal QC of Blackstone Chambers in London, again on behalf of the Revenue, in the Supreme Court case Frank A Smart & Sons v HMRC, which concerned the deductability of VAT incurred when purchasing entitlements to the Single Farm Payment, a European Union farming subsidy.
Ross Anderson – Ampersand Advocates ‘ He has made a sure-footed transition from academia to the Bar. ’
Back
Gatsby Retail Ltd v The Edinburgh Woollen Mill Ltd [2019] CSOH 49
Case comment by Michael Way, advocate
Lady Wolffe allows landlord’s dilapidation claim to proceed to proof-before-answer
Facts
The pursuer (“Gatsby”) was the landlord of a commercial premises on Princes St. The defender (“EWM”) was the former tenant of these premises first under a lease, then under a license. EWM vacated the premises. Gatsby then served a schedule of dilapidations on EWM, detailing work required to restore the premises. The work was estimated at around £170,000.
Meantime, Gatsby had arranged to let the premises to Caffè Nero (“Nero”). A term of the missives was that Gatsby would pay Nero £110,000 as a ‘Landlord’s Contribution’ (referred to as the “Nero Payment”). The missives contained a common ‘entire agreement’ clause.
Gatsby raised a commercial action in the Court of Session seeking recovery of damages for breach of EWM’s repairing obligation in the amount of £110,000. EWM sought a debate seeking: (i) dismissal of the action, (ii) deletion of averments relating to a meeting of agents and (iii) deletion of averments on quantum. Success on pleas (i) or (iii) would be fatal to Gatsby’s claim.
Issues
The debate turned on a narrow pleadings point:
- Had Gatsby relevantly averred a causal link between the Landlord’s contribution payment to Nero and its loss as measured by the schedule of dilapidations?
Decision
Lady Wolffe allowed Gatsby to continue to a proof-before-answer. She dismissed plea (iii) on quantum, reserved plea (i) on relevancy but sustained plea (ii) on the meeting of agents (at [38]).The Court was satisfied that Gatsby’s case was not irrelevant; there was a relevant averment of a causal link (at [34]). EWM had founded on the fact that the inclusion of an ‘entire agreement’ clause in the missives meant that the definitions of “Landlord’s Contribution” and “Tenant’s Works” were conclusive. It was not open to Gatsby to argue that the Nero Payment was to cure EWM’s breach and to restore the dilapidations, when the missives stated the Tenant’s Works were for fitting out work, which would have been required regardless of the condition the premises were left.Lady Wolffe did not accept this argument. Entire agreement clauses preluded parties to the contract from seeking to invoke extraneous evidence to contend for additional contractual terms. They do not “preclude consideration of the commercial rationale or underlying purpose for which an agreement was entered into” (at [29]), at least between one party to the contract and a third party. EWM’s remaining criticisms were matters “classically resolved at proof” (at [30]). Accordingly, the case was allowed to proceed to proof-before-answer.
Analysis
In this case Gatsby appears to have taken a commercial decision to mitigate potential losses flowing from a failure to repair and so make an upfront payment to an incoming tenant, with the expectation of that being recoverable against their outgoing tenant. The Court’s decision is in line with existing principles and confirms that the landlord can go to proof in such a claim. An ‘entire agreement’ clause will not bar a landlord from arguing the purpose behind a payment/commercial arrangement of this type.
The lesson for parties negotiating and drafting commercial property agreements is that where such an arrangement is in contemplation, making this clear in the missives may be helpful to avoid such challenges.
Representation
Ampersand’s Timothy Young appeared for Gatsby.
Back
Greenbelt Group Ltd v Walsh & Others [2019] SAC (Civ) 9
Sheriff Appeal Court tackles ‘issue of considerable significance’ for property lawyers
Common or amenity areas in housing developments have been the subject of significant litigation in recent years. Such areas are usually owned or managed in one of two separate ways: the ‘common ownership’ model, in which all of the residents in the development own the area in common or the ‘owner-manager’ model, in which a company both owns and manages the area for the benefit of the residents. The residents in the owner-manager model are obliged to pay for the maintenance of the common ground by means of a real burden.
Legal difficulties have arisen as a result of the common ownership model as a result of a failure precisely to identify the area of property to be conveyed to the residents. The owner-manager model, in contrast, was considered in more favourable terms by the Lands Tribunal in Marriott v Greenbelt Group Ltd (2015, unreported). The Lands Tribunal, however, was divided on the important question of whether the owner-manager model (under which a real burden requires the residents to pay for the services of the owner-manager company) was unenforceable as a result of the prohibition in s 3(7) of the Title Conditions (Scotland) Act 2003 on the creation of a monopoly by means of a real burden. There were, accordingly, doubts as to the enforceability of the real burdens in question.
This issue has now been considered by the Sheriff Appeal Court in the case of Greenbelt Group Ltd v Walsh & Others [2019] SAC (Civ) 9. The Sheriff Appeal Court held, allowing the appeal, that the real burdens obliging the residents to pay for maintenance do not create a monopoly. The manager’s right to maintain the land does not arise from the real burdens but from its ownership of the land itself. Such ownership is ‘inherently monopolistic’. The owner-manager model and the burdens which underpin it are, accordingly, enforceable.
This decision is, as the Sheriff Appeal Court identified, one of ‘considerable significance’ for this area of the law. The Sheriff Appeal Court’s decision will provide welcome clarity to developers and residents as to the legal status of one of the major ways of managing common or amenity areas.
Giles Reid of Ampersand was junior counsel for the appellants.
Back
Sheriff Appeal Court tackles ‘issue of considerable significance’ for property lawyers
Common or amenity areas in housing developments have been the subject of significant litigation in recent years. Such areas are usually owned or managed in one of two separate ways: the ‘common ownership’ model, in which all of the residents in the development own the area in common or the ‘owner-manager’ model, in which a company both owns and manages the area for the benefit of the residents. The residents in the owner-manager model are obliged to pay for the maintenance of the common ground by means of a real burden.
Legal difficulties have arisen as a result of the common ownership model as a result of a failure precisely to identify the area of property to be conveyed to the residents. The owner-manager model, in contrast, was considered in more favourable terms by the Lands Tribunal in Marriott v Greenbelt Group Ltd (2015, unreported). The Lands Tribunal, however, was divided on the important question of whether the owner-manager model (under which a real burden requires the residents to pay for the services of the owner-manager company) was unenforceable as a result of the prohibition in s 3(7) of the Title Conditions (Scotland) Act 2003 on the creation of a monopoly by means of a real burden. There were, accordingly, doubts as to the enforceability of the real burdens in question.
This issue has now been considered by the Sheriff Appeal Court in the case of Greenbelt Group Ltd v Walsh & Others [2019] SAC (Civ) 9. The Sheriff Appeal Court held, allowing the appeal, that the real burdens obliging the residents to pay for maintenance do not create a monopoly. The manager’s right to maintain the land does not arise from the real burdens but from its ownership of the land itself. Such ownership is ‘inherently monopolistic’. The owner-manager model and the burdens which underpin it are, accordingly, enforceable.
This decision is, as the Sheriff Appeal Court identified, one of ‘considerable significance’ for this area of the law. The Sheriff Appeal Court’s decision will provide welcome clarity to developers and residents as to the legal status of one of the major ways of managing common or amenity areas.
Giles Reid of Ampersand was junior counsel for the appellants.
Back
