Mark S.H. Lindsay KC

Commercial

• Herberstein v TDR Capital General Partner II LP 2021 SC 348. This Commercial Court action considered the correct procedure to follow in an action of count, reckoning and payment and provided guidance on the content of the duty to account in the context of a limited partnership that was being using for investment purposes.
• Shore Porters’ Society of Aberdeen v Brown & Others [2021] CSOH 37. This Commercial action considered the delictual and contractual liabilities of committee members of an unincorporated association that were owed to other members of the unincorporated association and provided guidance on when fiduciary duties could arise.
• Peebles Media Group Ltd v Reilly 2021 SCLR 328. This reclaiming motion, before the First Division, considered the circumstances in which an employer could recover damages from an employee as a consequence of the employee’s failure to fulfil his or her contractual duties of employment.
• Bullough v Royal Bank of Scotland Plc 2019 SLT 524. This Commercial Court action, in which Mark acted for the defender, considered the circumstances in which litigants may impliedly waive legal professional privilege by making averments about legal advice and by disclosing redacted legal advice.
• The Coal Authority v The Pegasus Fire Protection Company Ltd 2019 SLT 279. This reclaiming motion before the First Division, in which I acted for the reclaimer, considered the circumstances in which the Coal Authority had a contractual right of indemnity under and in terms of the extra-statutory permit scheme operated by it.

Competition & Public Procurement

• OLM Systems Ltd v Fife Council [2020] CSOH 95. This Court of Session Commercial Action considered whether: (i) the disqualification criteria had been correctly applied; (ii) the process of moderating the individual scores of the assessors to arrive at a consensus score had been carried out lawfully; and (iii) the pursuer’s letter before action gave adequate notice of its intention to proceed with a challenge to the adequacy of the reasons given by the defender for its consensus scores.
• A.C. Whyte & Co v Renfrewshire Council [2020] CSOH 82. This Court of Session Commercial action considered whether a local authority had failed to fulfil its duties under Regulation 19 of the Public Contracts (Scotland) Regulations 2015 and had failed to adhere to the terms of the ITT, by not requiring consolidated accounts to be submitted if the tenderer was a consortium and thereafter by awarding the contract without imposing joint and several liability on all members of the successful consortium
• Pentland Ferries v Scottish Minister [2019] CSIH 41. This reclaiming motion before the First Division considered the relationship between EU State Aid Rules and the Maritime Cabotage Regulation and their application to Scottish procurement law.
• Advocate General v John Gunn & Sons Ltd 2018 SLT 862. This Court of Session action considered the correct approach to adopt when quantifying unlawful State Aid for the purposes of Article 107 of TFEU in circumstances where the admitted State Aid was an unlawful exemption from the Aggregates Levy.
• Dem-Master Demolition Ltd v Renfrewshire Council [2016] CSOH 150. In this Commercial Action Lord Tyre provided guidance on the circumstances in which it was lawful to disqualify a tenderer that submitted a tender that was not compliant with requirements imposed by the Invitation to Tender.

Professional Liability & Regulations

• General Teaching Council for Scotland v Police Scotland 2021 SLT 1512. This Opinion of Lord Uist considered the circumstances in which Police Scotland could lawfully disclose information, relating to criminal investigations and prosecutions, to professional regulatory bodies without the need for a court order.
• Thomson v The Architect Registration Board [2021] CSIH 54. This appeal, before the Second Division of the Inner House, considered whether or not the Respondent’s PCC had erred in law in proceeding with the hearing in absentia and in imposing a sanction of erasure from the register.
• MS v General Teaching Council for Scotland [2021] CSIH 17. This appeal, before the Second Division of the Inner House, considered whether the respondent’s Fitness to Practice Panel gave adequate consideration to the Appellant’s Asperger’s when assessing his fitness to practice.
• Carroll v Dumfries & Galloway Council & GTCS 2021 SC 317. This appeal before the First Division, from the Employment Appeal Tribunal, in which I appeared for the GTCS, considered the statutory requirements for being employed as a teacher in a public school in Scotland. 
• LM v General Teaching Council for Scotland [2020] CSIH 42. This appeal to the Inner House of the Court of Session provided general guidance on the scope of appeals from the GTCS and on the test to be applied by an appellate court when hearing such an appeal. Specific guidance was provided on the appropriateness of combined competency and conduct hearings and on the use of hearsay evidence.

Property

• Petition of PHG Developments Scot Ltd 2021 SC 245. This reclaiming motion before the First Division, in respect of a petition for the rectification of a defectively expressed Deed of Conditions, considered whether it was also necessary to rectify the dispositions that referred to the Deed of Conditions; and provided guidance on how the law of rectification interacted with the system of land registration.
• Ruddiman v Hawthorne 2021 SLT 111. This reclaiming motion, before the First Division, considered the meaning and effect of the “Irvine Knitters Rule” that a servitude right of access cannot be used as “bridge” to gain access to land that is not the dominant tenement in the context of a proposed development of a country estate which had been sub-divided. 
• 3639 Ltd v Renfrewshire Council 2020 SLT 1271. This Commercial Action considered whether or not any part of a premium paid by a sub-tenant to surrender a sub-lease in a shopping centre was rent for the purposes of a rack rental provision in the Head Lease. 
• Toscaig Ltd v Poundland Ltd 2020 Hous LR 62. This Commercial Action considered the correct interpretation of service charge provisions in a commercial lease and whether the costs of a new facade and comprehensive renewal of the building could be recovered from the existing tenants by way of a service charge. 
• Lothian Amusements Ltd v The Kilns Development Ltd [2019] CSOH 51. This Commercial Court action considered whether servitudes granted over a car park and the creation of common parts in a property development resulted in the defender no longer being able to give vacant possession of the car park with associated rights of access as it was obliged to do in terms of the missives it had entered into with the pursuer.

Public & Administrative Law

• Hutton v Parole Board for Scotland & Others 2021 SLT 591. This judicial review considered whether or not the Parole Board’s Tribunal was court, in terms of Article 5(4) of the ECHR, when dealing with a prisoner subject to an order for life long restriction.
• Crawford v The Parole Board for Scotland 2021 SLT 822. This judicial review provided guidance on the content of the common law duty to provide adequate and comprehensible reasons for decision which involved the assessment of competing expert evidence. 
• Brown v Parole Board for Scotland 2021 SLT 687. This Opinion of the Extra Division provided guidance on the flexible approach that can be taken to the principles of judicial review when important rights are at stake. The Extra Division made clear that the common law no longer insists on the uniform application of the rigid test of Wednesbury unreasonableness. Reasonableness review involves considerations of weight and balance, with the intensity of the scrutiny and weight to be given to the primary decision-maker’s view dependent on the context. 
• O’Leary v Scottish Ministers & Others [2020] CSOH 81. This petition for judicial review sought various orders seeking the preparation of community facing risk management plans, which the petitioner considered were necessary in order to give him an opportunity of being released on licence by the Parole Board.
• Sabet v Fife Council & Another 2019 SLT 514. This Outer House action considered whether or not a breach of sections 56 and 59 of the Flood Risk Management (Scotland) Act 2009 gave rise to civil liability on the part of a local authority.

• Chambers & Partners Scotland (Bar) – Recommended as leading silk in Administrative & Public Law (Band 1); Immigration (Band 1); Professional Discipline (Band 1); Commercial Dispute Resolution (Band 1); Public Procurement (Band 1); Real Estate Litigation (Band 2); and Civil Liberties & Human Rights (Band 3)
• Legal 500 – Recommended as leading silk in Civil Liberties, Human Rights, Public Inquiries, & Public & Admin law (Tier 1) and Commercial Litigation (Tier 1)