Book reviews

Currie on Confirmation of Executors

9th edition

Eilidh M Scobbie

PUBLISHER: W GREEN
ISBN: 9780414014619
PRICE: £188.70

The ninth edition of Currie on Confirmation continues the tradition, as we have come to expect, of combining a breakdown of the law surrounding the application for confirmation in Scotland with relevant case law and a practical guide to commissary practice.

Currie has become the go-to textbook for private client practitioners, and it is where solicitors are directed by commissary clerks around Scotland when there is a difference of opinion on the correct structure of an application for confirmation. This edition also includes a CD of styles which many practitioners will find helpful.

Since the previous edition in 1995, there have been substantial changes in the general law which cut across the law of confirmation. The introduction of civil partnerships, and provision for cohabitants under s 29 of the Family Law (Scotland) Act 2006, are two examples that have changed the way in which modern wills are drafted and which are covered by this new edition. The section on the Human Fertilisation and Embryology Act 2008 recently provided me with a quick and accurate answer to a client’s questions on the succession law implications of “posthumous conception”.

The updated content has not meant the loss of any of the quality and diversity of prior editions. The ninth edition continues to deal with everything from the general rules relating to the preparation of a C1, to the steps required when resealing a grant of probate from Lesotho. All areas of law and practice are explained clearly and accurately, and it is difficult to imagine a modern firm which deals with estate administration not having a copy of this new edition in the library.

Anton’s Private International Law

3rd edition

Paul Beaumont and Peter McEleavy

PUBLISHER: W GREEN (SCOTTISH UNIVERSITIES LAW INSTITUTE)
ISBN: 9780414013452
PRICE: £155

The importance within a legal system of private international law increases with the globalisation of human affairs. Few 21st century individuals and businesses will avoid entering into some form of legal relation from time to time with a person from another jurisdiction. This is especially so in Scotland, a small country with larger neighbours whose inhabitants and business organisations interact with our own on a daily basis.

Scots law has been fortunate in having had, since 1967, a treatise of the stature of Anton’s Private International Law. But the frequency of updating of this important work has not kept pace with developments of the law. The second edition was published in 1990 and documented the numerous changes, mainly due to legislation, which had occurred since the appearance of the first edition. Developments since 1990 have been equally wide ranging, and it will come as a great relief to practitioners that a third edition, stating the law as at 2011, has finally become available.

It should be said at the outset that this is a work of monumental proportions. The third edition runs to more than 1,200 pages, in a typeface smaller than that used for previous editions. Whilst largely retaining the structure familiar to users of the second edition, in which the subject matter is treated by reference to traditional areas of law, the commentary is significantly expanded in almost all chapters. The thoroughness of the authors’ researches is evident throughout, not least from the copious footnotes which occasionally (for example in chapter 25 on companies and firms) threaten to overwhelm the text of the commentary. Coverage of such recent Scottish case law as there has been is comprehensive and careful. But the hallmark of a work of high quality is its willingness to offer analysis of matters in respect of which no legislative or jurisprudential guidance is available, and in this regard too the authors cannot be faulted.

The overriding impression that one obtains from the new edition is the extent to which private international law is now almost entirely governed by national and EU legislation. As the authors note in the introductory chapter, few areas of Scots private international law are now untouched by legislation. Many of the chapters of this edition are largely devoted to commentary on domestic statutes or EU regulations that have wholly superseded the common law. Some of the legislation, such as the 1980 Hague Convention on International Child Abduction, has been around for long enough to acquire a heavy superstructure of case law. Other more recent instruments remain to be fully interpreted by judicial decisions, and in these matters the observations of the authors on interpretation are especially helpful.

One may note with wry amusement the statement at p 51 of the second edition that “as yet the impact of European Community legislation on private international law has been negligible”. The position could not be more different today. In the current era of the Brussels I Regulation on jurisdiction and recognition and enforcement of judgments, the Rome I Regulation on contractual obligations, and the Rome II Regulation on non-contractual obligations, to name only the most important, the starting point of research into a question involving Scots private international law will often now be the provisions of the relevant EU regulation. In this regard, the very detailed commentary in chapter 14 on the Rome II Regulation, which as the Court of Justice has now confirmed (Homawoo v GMF Assurances SA, Case C-412/10) applies to events occurring after 11 January 2009, is particularly valuable. As Professor Beaumont reminds us (p 20, footnote 137), he represented the UK in the negotiations of inter alia this Regulation and his observations on its interpretation have authoritative insight.

If there is a criticism to be made of the latest edition, it is that the current authors could be regarded as having been unduly deferential to the work of the original author in areas of law that have not been engulfed by statutory amendment. This is noticeable in the chapter on the law of succession. The first edition of Anton was published only three years after the enactment of the Succession (Scotland) Act 1964 and it is understandable that the author dealt in some detail with pre-1964 domestic succession law. It is less clear that topics such as collation inter haeredes and the history of legal rights deserve such detailed treatment today. It may be that in a future edition (in the absence of any statutory intervention) this chapter could be reviewed, with particular regard being had to conflicts likely to arise between modern Scots succession law and the counterpart laws of other states.

Previous editions also included a chapter on “Theories and Methods”, which has been retained and expanded in the new edition. Much of the new material is concerned with academic discussion, mainly of American origin, of policy evaluation methods and economic theories of private international law. To this reviewer at least, the value of inclusion of much of this material seems questionable in the absence of analysis of the extent, if any, to which it has influenced the development (through European initiatives or otherwise) of the private international law of Scotland or is likely to do so in future.

It may seem curious, in view of the gestation period of this edition, to suggest that it displays indications of hasty completion. One is, however, occasionally distracted by inconsistencies in references (e.g. schedule “to” an Act or schedule “of” an Act); and the decision to include (p 976) a lengthy quotation from the judgment of the Court of Appeal in Berezovsky v Abramovich [2011] EWCA Civ 153 (including an error in paragraph numbering) instead of a much briefer commentary feels somewhat unbalanced.

These, however, are minor matters. This latest edition of a key Scottish legal publication is a truly superb piece of work in which practitioners in the field of private international law – and there are no others – can place complete confidence. In the preface, the authors note with great regret that Professor Anton passed away on 6 June 2011, just weeks after the manuscript was submitted to the publishers. They can be assured that this edition does indeed carry forward his legacy and that it will prove to be as invaluable to users as its predecessors.