Defamation, children, bankruptcy on Faculty reform agenda
Particular aspects of the law potentially in need of reform have been highlighted by the Faculty of Advocates in a submission to the Scottish Law Commission.
In its response to the Commission's request for suggested projects for its ninth programme of law reform due to run from next January, Faculty has collected a number of issues which its members have identified as arising in practice.
One area is the question of looking after the interests of children involved in court proceedings. Differing practice across Scotland, the advocates say, has contributed to "considerable confusion as to the roles of a [court-appointed] reporter and a curator ad litem appointed at common law", and the appointment, role and powers of curators ad litem at common law "would be worthy of the Commission’s consideration".
Another subject is defamation, where Faculty believes it "important that Scots law in this area continues to take adequate account of technological advances such as the internet", and that consideration could be given to whether the solutions for England & Wales in the Defamation Act 2013 could be introduced in Scotland.
The recent UK Supreme Court ruling on the running of time for raising certain court actions, arising from the Stockwell Street explosion, also gives rise to a potential project – one that Faculty recognises might be a substantial one.
Turning to heritable property, Faculty raises the question whether Court of Session or sheriff ordinary cause procedure would be more suitable than the summary cause for recovery of possession proceedings above a certain value, especially where valuable commercial premises are involved.
Finally, it points to the possibility in Scotland of a summary warrant being granted in favour of HMRC and certain other creditors, which has been held to be authorisation to serve a charge for payment – thought the judge, Lord Tyre, questioned whether the “opening up of this route to sequestration truly reflects the intention of the Scottish Parliament".