Book reviews: April 2023

Delict – A comprehensive guide to the law in Scotland

3rd edition 

Francis McMahon, Ronald E Conway and Eleanor Russell, with Josephine Bisacre and Ranald Macpherson 

PUBLISHER: EDINBURGH UNIVERSITY PRESS
ISBN: 978-1474462440
PRICE: £55

The ever expanding interaction between individuals, businesses, and public organisations in our society makes it difficult to be clear about how the law of delict might apply in many particular situations nowadays, and consequently this comprehensive guide will be most welcome. The hapless legal traveller, whatever their existing knowledge of the subject, will benefit from its contents, updated from the second edition published 11 years ago.

The authors begin by observing that delict may not be a particularly “tidy” area of the law of Scotland, and then set about putting it into some kind of order. It is a vast and varied subject which is constantly developing, so that is no easy task and one in which the principal author was assisted by contributors who wrote individual chapters on matters within their experience and expertise. The book covers everything from absolute privilege to psychiatric harm to product liability to causation and beyond, via concepts such as pure economic loss, passing off, damages, and a wide variety of traditional Latin maxims. It states the law at October 2020 and explains many recent decisions in important areas. The numerous case summaries in the text are excellent. I particularly commend those in the sections on vicarious liability and breach of statutory duty. 

The scope of this book means that it will always be difficult for any reader coming to the subject new to navigate the text easily. There is a good “Summary of Key Concepts” which explains the author’s overall approach, but this comes rather curiously at the very end of the book rather than at the beginning. The application of general and specific principles to the diverse types of delict can be confusing, and clearer headings and subheadings would have made it easier to follow the text in some chapters. These are minor reservations, however. The analyses of notable decisions and the discussions of the current law are clear and concise, and will be of great assistance to anyone coming to this topic for the first time or wanting to refresh their memory of what they once knew about it. 

Charles Hennessy

The Landlord's Hypothec 

Andrew Sweeney

PUBLISHER: EDINBURGH LEGAL EDUCATION TRUST
ISBN: 978-1999611880
PRICE: £30

This book, which was published in 2021, is volume 10 in the Studies in Scots Law published by the Edinburgh Legal Education Trust. Some other volumes in the series are available to download free of charge at edinburghlawseminars.co.uk/. I commend them to you. They are, without exaggeration, a series of scholarly works which are an addition to the jurisprudence of Scots law.

Back in 1982 or thereby, a client advised me that he intended to exercise his landlord's hypothec over a warehouse full of grit for the building trade and the machinery used to create same. What I knew about hypothec ran to two sentences at most. I certainly did not know anything about the then action of sequestration for rent and the priorities around ranking. I was aware of invecta et illata, but had no idea that hypothec was introduced into Scots law in the 16th century. There was no real guidance in any published textbook, so there started a personal voyage of discovery.

This book is an excellent review of the subject of hypothec. It is divided into three parts: Part A (history); Part B (the "lifecycle" of the hypothec, including what is covered and not covered by hypothec); and Part C (the enforcement of hypothec). Part C is of particular interest to practitioners as it contains advice on various protection measures for hypothec including plenishing orders, "keep-open" clauses, preventing the removal of goods, and warrant to carry back goods.

I agree with the author that there are continued benefits of hypothec for landlords and that there is a need for insolvency practitioners to be aware of its significance and effects. While the scope of hypothec has been restricted over the years and the action of sequestration for rent has been abolished by the Bankruptcy and Diligence etc (Scotland) Act 2007, it can still provide some security for unpaid rent in the lease of a commercial property, especially if a tenant has become insolvent.

Professor Stewart Brymer WS, Brymer Legal Ltd