LKS Style Bank – new corporate styles added

We have added a new corporate section to our styles bank. The section includes new articles, dividends and a shareholder agreement.

The styles have been drafted by Iain Taylor of  e-corporate. You can access them here or from or from the styles menu on our home page.

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Additions to the LKS style bank

The following property styles have now been added to the LKS style Bank:

  • Offer by tenant to take lease of commercial property with tenant’s fitting out works
  • 3.3.7 Licence for tenant works – standard version
  • 3.3.8 Licence for tenant works – simplified version
  • Offer By Sub-tenant To Take Sub-lease Of Whole Commercial Premises From Mid-landlord.

These are available to our subscribers here. (Contact to receive a subscription quotation.)

And for individual purchase here.

You can see a complete list of all property styles currently available here.

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LKS Style updates -LBTT and CDM Regs

All relevant LKS property styles have been updated to take account of Land and Buildings Transaction Tax (which came into force on 1 April) and the  Construction (Design and Management) Regulations 2015 (which come into force on 6 April).

These are available to our subscribers here. (Contact to receive a subscription quotation.)

And for individual purchase here.


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‘Private Client Scotland’ preview edition published

So why Private Client Scotland and why now?

Private Client Scotland is something that I have been meaning to get round to over the last few years and now finally have the time to do so. It is also a publication that I believe is needed. A publication that aims to bring together all aspects of private client work from a Scottish perspective.

What does Private Client Scotland aim to cover?

Private Client Scotland will review the latest cases, provide updates on the latest consultations, legislation and official publications and also includes articles, editorials and news items.

What is included in the Preview edition?

The Preview edition of Private Client Scotland includes an editorial which argues for the devolving of control of inheritance tax to the Scottish Parliament. There is also an article on the continuing fall-out from Sheriff Baird’s decision on the validity or otherwise of certain Powers of Attorney.  Included in ‘Case reviews’ is the Judgement by Sheriff Valerie Johnston in the long-running dispute as to where Private Mark Connolly is buried. ‘Professional updates’ include a link to the Scottish Law Commission’s report proposing major reform to our law of trusts.  Lastly the ‘News items’ section includes stories that range from a dispute over a new crematoria in the Scottish Borders to how Delaware proposes to deal with digital assets on death.

The ‘preview edition’ of Private Client Scotland can be found here.

If you are interested in subscribing to ‘Private Client Scotland’ please email me at:

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Smyth v Rafferty & Others [2014] CSOH 150 – Court of Session upholds Will despite challenge

The Court of Session has upheld a Will made shortly before the testatrix’s her death in which she left £3m to re-finance her failing newspaper business.  

The will was challenged by the testatrix’s sister on the grounds of: “(i) lack of testamentary capacity, (ii) undue influence and/or (iii) facility and circumvention.  Put short, she contends that, by the time she came to make the codicil and the new will, Deirdre was so frail mentally, as a result of the pain she was suffering, that she was incapable of understanding what she was doing; or, even if capable of understanding, was in no state to resist the undue influence of those in whom she trusted or the pressure to which she was subjected.”

The full case report can be found here.

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(1) Highland Council v. Scottish Ministers and Combined Power and Heat (Highlands) Limited and (2) Ross Estates Company v. Scottish Ministers and Combined Power and Heat (Highlands) Limited, 28 August 2014 – invalid condition attached to planning permission

Inner House case considering a planning appeal in respect of an application for the development of a waste to energy combined heat and power plant in Invergordon.

The Reporter determining the appeal had granted permission subject to a number of conditions, one of which permitted the power plant to accept a maximum of 100,000 tonnes per annum of waste originating from within the Highland Council area.  However, the condition also stated that a proportion of the waste could originate beyond the Highland Council area.

The Inner House found that the condition was invalid as the reference to the waste from outwith the Highland Council area meant that the permission granted went beyond that which had been applied for (the application had provided for incineration of Highland waste only) and thus beyond what had been considered at the planning inquiry. The developer’s Environmental Impact Assessment had also been drawn up on the understanding that only Highland waste was to be treated at the plant. All of this meant that the planning authority (Highland Council) and the Ross Estates (objectors) had been disadvantaged and their appeal on that basis was held to be well founded.

The court found that the invalid condition was not severable from the rest of the planning decision (on the basis that the planning permission may not have been granted at all if it had been appreciated that the condition was invalid) and so it was not possible to quash only that condition. However, whilst the planning inquiry required to be re-opened, it was unnecessary to rehear the entire case and the inquiry would only have to deal with the invalid condition. If the reporter considered that the condition was essential to the grant of permission he would have to hear evidence and submissions from all of the parties on its merits. If the reporter were to consider the condition, as drafted, not to be essential to the permission, then it was open to him to substitute an amended condition.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

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Merry Christmas and best wishes for 2014 from Legal Knowledge Scotland

Merry Christmas from Legal Knowledge Scotland.

Thank you for all your support during our third year and best wishes for 2014.

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Alan Alexander Brown and John Bruce Cartwright, The Joint Administrators of Oceancrown Limited v. Stonegale Limited, 11 December 2013 – whether transactions liable to reduction as gratuitous alienations

Outer House Case in which the administrators of Oceancrown Ltd and other associated companies (including Loanwell Ltd and Questway Ltd) sought reductions of the sales of various properties by the companies as gratuitous alienations[1].

The companies in administration were part of a group under the control of a Mr Pelosi. The group was involved in the development and letting of commercial and residential properties. Mr Pelosi had effective control of all of the companies which were operated as one enterprise and operated on the basis of one bank account in the name of Questway Ltd.

Mr Pelosi negotiated the sale of 278 Glasgow Road, Rutherglen to Clyde Gateway Development Limited. On 10 November 2010 Oceancrown disponed 278 Glasgow Road to Strathcroft (then 99% owned by Mr Pelosi) for £762k. On the same day Strathcroft disponed the same property to Clyde Gateway for £2.1m (plus VAT of £367.5k[2]).

The bank’s solicitors were advised that sale of 278 Glasgow Road was part of a series of transactions also involving 110, 210 and 260 Glasgow Road, and 64 Roslea Drive (owned by Oceancrown, Loanwell and Questway and over which the bank held standard securities), the total sale price for which was £2.414m. When the bank’s solicitor (who was unaware of the sale of 278 Glasgow Road to Clyde Gateway) received the sale proceeds, it delivered discharges of the securities. Dispositions were executed (On 24 November 2010) transferring 110, 210 and 260 Glasgow Road to Stonegale Limited (of which Mr Pelosi’s son was the sole shareholder and director) and 64 Roslea Drive to Mr Pelosi’s son. The son then sold 64 Roslea Drive to a third party for £125k. Although no money was paid, the dispositions for the four properties recorded a consideration of £1.652m in total. Stonegale did not dispute that all the funds paid to the bank to discharge the securities came from the purchase of 278 Glasgow Road by Clyde Gateway.

Argument for the administrators
The administrators argued that a large proportion of the money received from Clyde Gateway (in respect of 278 Glasgow Road) was attributed to the other dispositions in order to make it appear that the transfers to Stonegale and Mr Pelosi’s son were made for consideration. In the view of the administrator, the back-to-back sale and transfers had been structured so as to keep £1.7075m out of reach of the bank and to transfer the properties to Stonegale and Mr Pelosi’s son for no consideration. The court was therefore asked to reduce the transfers of 110, 210 and 260 Glasgow Road, and 64 Roslea Drive.

Argument for Stongale
Stonegale argued that the issue for the court was whether the alienations of 110, 210 and 260 Glasgow Road and 64 Roslea Drive, Glasgow were made “for adequate consideration”. Oceancrown, Loanwell and Questway had each received consideration which was paid to their secured lender. The parties agreed that the sums attributed to 110, 210 and 260 Glasgow Road, and 64 Roslea Drive exceeded their market value. The source of the funds was irrelevant. The bank had decided to discharge the security over 278 Glasgow Road on the basis of a valuation it had received and had made a bad bargain. The other transactions were separate. Consideration had been paid to Oceancrown, Loanwell and Questway as they had reduced their indebtedness to the bank.

Lord Malcolm found otherwise. “Consideration” is “something which is given, or surrendered, in return for something else”[3] No one paid anything for 110, 210, 260 Glasgow Road and 64 Roslea Drive. Oceancrown, Loanwell and Questway did not receive anything in return for the dispositions. They gifted the properties to the disponees. The fact that the bank was misled into using part of the sale price of 278 Glasgow Road to discharge all the standard securities did not supply the missing consideration. If the bank had known that 278 Glasgow Road had been sold for £2.4m, the same overall reduction in bank indebtedness would have occurred, but only the standard security over 278 Glasgow Road would have been discharged. The tranfsfers under challenge were gratuitous alienations. As such, reductions of the dispositions of 110, 210, 260 Glasgow Road were granted and Mr Pelosi’s son was be ordered to repay (to the administrators) the £125k paid to him by the third party for the purchase of 64 Roslea Drive.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

[1] In terms of s242 of the Insolvency Act 1986.

[2] The administrators investigations indicated that the VAT element on the sale of 278 Glasgow Road had not been paid to HMRC.

[3] MacFadyen’s Trustee v MacFadyen 1994 SC 416 at 421

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My speech to the Scottish Borders Chamber of Commerce AGM

Good afternoon everyone.

Welcome to the 2013 AGM of the Scottish Borders Chamber of Commerce.

Firstly, by way of introduction to those who do not know me, my name is James Aitken and I am the Convener of the Chamber.   I will make further introductions as we go along.

Before I begin do we have any apologies?

The order of events is fairly straightforward.  I will firstly seek approval of the minute of last year’s AGM.

I will then outline some of what has been happening in the Chamber over the past year.  You will no doubt be relieved to hear I only intend to speak for 20 minutes or so.

I will then ask Craig Little, the Chamber’s Treasurer, to give a review of our finances.  I understand that Craig has brought a number of copies of our accounts for anyone who would like a copy.  Craig will then answer any questions you have.

Then I will ask the other directors and in particular our new Convener and vice- Convener if they would also like to say a few words.

I will then invite questions from the floor.

We should be finished the formal part of the AGM by around 1pm.  I hope that many of you will be able to stay for the buffet lunch.

Firstly to the minute of last year’s AGM.  Does everyone have a copy with them or has seen a copy of the minute?  Are there any questions? Do we have a proposer and a seconder? Thank you.

The location for my final speech on behalf of the Chamber is an apt one.  I grew up in Langlee which overlooks the College and University campus.  My rugby club is just a few yards from here.

I also know from personal experience how important the College is to the Borders and the wider business community.  I left school before my 16th birthday to start an electrical apprenticeship.  I attended the old Borders College on the Melrose Road to study for my City and Guilds.  When it finally became clear how poor an electrician I was, and that I wanted to go to university, a number of people at the College helped me when I was teaching myself the Highers I needed to get into University.

With this in mind, this is also a good opportunity to introduce Susan Rennie, Employer Engagement coordinator at Borders College.

So to the Chamber and the past year.

“As the leading business membership organisation in the Scottish Borders the Scottish Borders Chamber of Commerce is committed to representing the interests of the business community in the Scottish Borders.”  I am sure that many of you will have seen this phrase used in our press releases and in other Chamber publications and speeches.  This statement is what the Chamber should be judged against.

If one phrase sums up the position of the Chamber this year, as opposed to last year, it is “improving but still lots more to do”.  Our financial position is much healthier, our membership continues to grow and what the Chamber is saying and doing is regularly covered in the press.

This has a great deal to do with the work done by Bruce Simpson, Andrew Collier and Alan King.  Bruce took over our communications role from Harry McGrath just over a year ago, Andrew has dealt with the press on our behalf and Alan King deals with membership.  These are paid positions and done on a month to month freelance basis.

The work done on these fronts has directly contributed to our growing membership which has meant an improved financial position.

Each role is crucial and complimentary.  It may seem obvious but we actually need to meet with our members and listen to what they are saying.  That is something we have simply not done enough of in the past and still need to improve further on.  That is one of the main reasons we created Alan’s role.

Alan, Bruce and Gordon Innes are also working very hard on updating our “member benefits” package just now.

Then there is the amount of positive and regular publicity generated for the Chamber by Andrew and Bruce.  Barely a week has gone by during the last year without the Chamber being mentioned in our local press.  A number of members have given this as their main reason for joining or re-joining when they have met with Alan.  I and a number of other directors have also given a number of TV interviews.   This has given the Chamber a much higher profile than in past years.

I would also like to thank Andrew and Bruce for all the work they did concerning the Ofcom consultation.  It clearly had an impact.  One reason for its impact was that it was part of a wider campaign.  I would like to take this opportunity to thank David Parker, leader of Scottish Borders Council and the Dumfries and Galloway Chamber for their help with this campaign.

It is likely we will soon see improved local news coverage and the showing of a number of programmes from STV.  It is not good for our businesses that the rest of Scotland do not see or hear enough about the great things that happen here in the Borders.  It is also ridiculous that the South of Scotland does not receive programmes such as STV Rugby, Scotland Tonight and the Young Scot Awards.  We could not even watch one of our local MPs debate with the deputy First Minster recently.  The response that you can view Scotland Tonight and other programmes online or on the “STV Player” is simply patronising.

One thing that has become obvious to me over the last two years is that dealing with the press and generating publicity for the Chamber is a job for a professional.  That of course has a cost implication and must be kept under review.  There are though huge benefits to the Chamber both in terms of increasing our membership and how we lobby our elected representatives and various other agencies and quangos.

Social media is also something that the Chamber is embracing.  Thanks in particular to Bruce.   Our new improved website is also just about to be launched.

Now to events.  This is something that the board keeps under review.  We are keen to do more joint events with other local business organisations and that is something the board is working on just now.  Our recent joint lunch with the FSB went very well.   We are also looking at possible joint initiatives with other business organisations such as the Exporters Club.   The benefits of this approach are obvious.

The Chamber has also held a number of very successful events this year.  A huge improvement on the previous year.  Bruce is already promoting our winter events programme.  One thing we have taken on board is that our members would also appreciate more of a chance to meet other members in a more relaxed setting.  “Informal networking on the last Friday of the month” now forms part of the events programme.  Again, as with our media coverage, our events play an important role in our ability to lobby our elected representatives.

Now to our finances.  Craig will outline this in more detail in a few minutes but we are in a much stronger position than we were a couple of years ago.  The Chamber also does not receive any public money.  A situation I personally hope continues.  I would like to take this opportunity to thank Craig for all the work he has done over the past two years regarding our finances.  As already mentioned, the work done by Bruce, Andrew and Alan does have a cost implication and must be kept under review but for the moment appears to be working well.

Now to the lobbying of our elected representatives which I have mentioned a couple of times already.  This is one of the primary tasks of the Chamber and has been one of the Chamber’s priorities over the last two years.  We are very lucky in the Borders that three of our elected representatives hold ministerial positions.  The Chamber has spent a great deal of time putting forward our views on an extremely wide range of topics to our local councillors, MSPs, MPs and MEPs.  That has included the importance of the partial return of our railway, business rates, the Ofcom consultation, the need for an abattoir in the Borders, the upgrading of the A1 and the urgency of improving other main roads, arguing for windfarm development where appropriate, various tourism issues, the strange workings of the so called ‘meat levy’, asking politicians to hold “business surgeries”, various banking issues and the importance of urgently improving our broadband and mobile phone services.

Our politicians want to engage with us.  Let’s not disappoint them.

It was also great to see the Scottish cabinet visit us recently.  It was also great to see the huge amount of positive coverage it gained for the Borders throughout Scotland notwithstanding the lateness of the invitations.

I am also delighted that our relationship with Scottish Borders Council has improved markedly and in particular I would like to thank Councillor Stuart Bell for our participation on the Council’s Economic Development Group and to Samantha Smith for all her help, support and advice in relation to the Scottish Borders Business Forum.  More on that initiative in a minute.  The Chamber was also involved in the discussions surrounding Scottish Borders Council’s “Scottish Borders Loan Fund”.   This is the kind of initiative the Chamber welcomes.

The Chamber not only has to engage with our politicians but a number of agencies and quangos.  I have often been asked what I think about bodies such as Visit Scotland and Scottish Enterprise.  My view is fairly straightforward.  I do not automatically believe that the Borders needs its own organisation for every sector, agency or quango or that the way we did things in the past was automatically better.  That said, organisations such as these – and this Chamber as well – must act transparently and make a huge effort to meet and talk to their respective stakeholders.  It does no-one, least of all business in the Borders, any favours to see yet another war of words between different groups and factions when it is likely that regular and transparent communication from all sides would solve many of the perceived issues.

As for our relationship with Scottish Chambers I must admit to being in two minds about this.  That though is a matter for my successor and the board.  I would though like to thank Ged Cowans, our vice-Convener, who is also standing down for all the work he has done representing our Chamber at numerous Scottish Chamber events.

On a personal note I am delighted that my idea of bringing the various business organisations together to discuss and debate the bigger issues affecting our businesses here in the Borders has been successful.  The new body is to be called the Scottish Borders Business Forum and its first event deals with a number of local transport issues and is being held on the 14th of September.  That is a Saturday morning and is at Scottish Borders Council HQ starting at 9am.  It should last about two hours.  The meeting will have speakers from Transport Scotland, Scottish Borders Council, Network Rail and the Road Haulage Association.

I was also pleased that the Chamber agreed to donate the sum of £2,000 to this project.  The only business organisation so far to make such a contribution.  That will be used to make available online a list of all the business organisations in the Borders along with their contact details and also what events they have planned.  This is not rocket science and is long overdue.

As for Directors, a number of new Directors have recently been appointed:  Raymond Kerr, Nick Green and Paul Heyhoe.  Four directors resigned during the year:  Alan Dickson, Maggie Stanfield, Andrew Collier and Chad Dawtry.  Thanks to all of them for all they have done for the Chamber.

The membership of the board is obviously an ongoing process and the Chamber is always looking to hear from local business people who would like to get involved.  One thing I have not had as much success on as I would have hoped is the make-up of the board.  It is still male dominated.  That simply has to change and it is something that the board is looking at again.

The Chamber is also creating an association of former Directors of the Chamber.  The advantages to the Chamber of making use of the knowledge and experience of our former Directors are obvious.

A few final thoughts.  There are a huge number of great things going on here in the Borders.

Eyemouth Harbour can now receive cruise ships, our first crematorium is now in operation, the Borders Book Festival, the Border Union Show, the new 3G sports arena, plans are now in place for a purpose-built mountain bike chairlift at Innerleithen, our common ridings and festivals, our “Sevens” tournaments, our first palliative care unit and a site has been found for the Bill McLaren museum.   Let’s also not forget the newly refurbished Abbotsford House.  I am sure everyone here today could add many others to this list.

One reason I mentioned these things again concerns a letter I had published in the Southern Reporter a few months ago which received a great deal of comment.  I must admit I was getting sick and tired of the negativity surrounding the Borders that seem to dominate the letters pages of our local papers.  I simply wanted to point out some of the great things happening here in the Borders.

I also mentioned the negativity towards the return of the railway, which has been disgraceful, and I hope at last is at an end.  It gave a great deal of ammunition to those in other parts of Scotland who wanted the money spent on their patch.  We were accused of being divided and insular.  With this in mind, I would again ask those local politicians who even now seem reluctant to support the project to put the Borders first and get behind the campaign to take the railway to Melrose, Hawick and hopefully Carlisle.  This is a fantastic opportunity for the business community in the Borders and something the Chamber fully supports.

One of the reasons we lost our railway is that we were divided.  Let’s never let that happen again.  Hopefully the Scottish Borders Business Forum will give us the single business voice that we have not had up till now.

It is though not just about the railway.  The quality of our communication infrastructure is absolutely vital if business in the Borders is to remain competitive let alone expand.   The main roads that cross the Borders are simply not good enough.  This is a matter mainly for the Scottish Government and BEAR Scotland but also for Scottish Borders Council.  Regarding BEAR Scotland.  The amount of time it took them to resolve the landslip problem on the A68 between Earlston and Lauder was simply not good enough.  When we contacted them about this it was difficult to even persuade them to put signs up saying what the problem was.  When we contacted Scottish Borders Council to try and put pressure on BEAR Scotland about this their response was pretty much, “nothing to do with us”.  If our politicians and organisations such as BEAR Scotland do not understand the importance of roads such as the A68 to business here in the Borders this will make it much more difficult to retain or even entice more businesses to the Borders.  It is that simple.

So what do we want?  Of course we want to see the A1 dualled all the way to the Border.  We know that the other main roads into and out of the Borders are not going to be dualled.  That is why we are arguing for two or three more passing lanes on the A7 and A68 as a matter of urgency.  The Chamber will also be arguing very strongly for much improved broadband and mobile phone services for the Borders.

A few final words.

I am pleased to report that the Chamber remains in very good hands.  That brings me nicely to Jack Clark and Bruce Simpson.  Jack Clark is my successor as Convener and Bruce Simpson succeeds Ged Cowans as vice-Convener.  Both Jack and Bruce have done a power of work for the Chamber over the last few years. We will hear from both of them in a few minutes.

I would like to thank my fellow directors, both past and present, for all their support over the last two years.  Our board of directors are unpaid unless they also take on one of our paid roles and rarely even claim expenses.  A great deal of the work they do goes unreported.

Lastly, and by no means least, I would like to thank our members for their continued support of the Chamber.

I will finish where I began.  “As the leading business membership organisation in the Scottish Borders the Scottish Borders Chamber of Commerce is committed to representing the interests of the business community in the Scottish Borders.”

It has been an absolute pleasure and honour to represent the Scottish Borders Chamber of Commerce for the last two years.  Thank you.

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Legal Knowledge Scotland styles half price in August

The prices of all of our property styles have been reduced by 50% for the month of August. You can see our range of styles here.

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