Calum H S MacNeill KC FCIArb

“Undoubtedly one of the best around.” Chambers Bar Guide 2024.

With over 30 years’ experience of practice at the bar, Calum H S MacNeill KC FCIArb is a litigator, mediator and arbitrator.   He has been with the Westwater stable since he called in 1992 and in that time has developed a busy practice in a wide range of civil litigation with emphases on commercial law, professional (including clinical) negligence, employment law and construction.  He is a mediator accredited with CEDR and a Fellow of the Chartered Institute of Arbitrators.

Appointments.

For three years (1998 – 2001) he was an Advocate Depute prosecuting serious crime in the High Court and for another three years (2003 – 2006) he was Standing Junior Counsel to the Scottish Ministers.

He has been appointed by the Lord President to the panel of chairpersons of the Police Appeals Tribunal which hears appeals in disciplinary cases for the Scottish Police Service.

Since 1 January 2023, he has been the Chair of the Discipline and Appeal Tribunals of the Institute of Chartered Accountants of Scotland.

He is also on the panel of prosecuting counsel for the disciplinary tribunal for the Faculty of Advocates.

What the directories say.

He has been ranked as one of the “leaders at the bar” in commercial dispute resolution by Chambers Directory almost every year since 2009 and is  recommended (Band 1) for employment law.

Chambers 2018 recommended him for employment law quoting from its research, “Meticulous in his attention to detail, well prepared, methodical and good under pressure,” and, “Unflappable, thorough and very calm, he has a very clear delivery, very good attention to detail and always a fast response.”  The 2019 edition also recommends him for employment (Band 1) describing him as “outstanding” and “very clever and sharp-witted”.

Chambers 2024 says, inter alia, “Calum is concise and precise; he distills complexity into simplicity. His written work makes even difficult choices appear as elegant solutions. He is undoubtedly one of the best around.”

In the Legal 500 he has been ranked since 2010 when he was described as, “recommended for paper-heavy cases in which he ‘drills down to the essentials with impressive ease’.”  The 2014 edition described him as “a respected presence in the courts” with “very strong advocacy skills.”

Selected cases since taking silk:

• Scottish Widows Investment Partnership Group Ltd v Cordatus Ltd [2008] CSOH 7 – petition seeking recovery of evidence to substantiate allegations of breach of confidence under service agreements.
• Chrysalis Scotland Ltd v Clydesdale Bank Insurance Brokers Ltd [2008] CSOH 144 – claim against Independent Financial Adviser for negligent investment advice.
• Cyrus Energy Ltd v Stewart; Xyrex Ltd v McTurk [2009] CSOH 53 – interim interdict – worldwide restrictive covenant against use of fuel-conditioning products and other highly technical chemicals.
• Lloyds Pharmacy Ltd v National Appeal Panel [2010] CSIH 55 – reclaiming motion in petition for judicial review of a decision relating to adequacy of existing pharmaceutical services in a particular neighbourhood.
• Lloyd’s Pharmacy, Petitioners [2010] CSOH 86 – petition for judicial review of a decision of the National Appeal Panel to refuse permission for relocation.
• Cramaso LLP v Viscount Reidhaven’s Trustees [2010] CSOH 62 – action for reduction of the lease of a grouse moor on grounds of negligent misrepresentation as to the grouse population. Liability ultimately decided in favour of the pursuer by the UK Supreme Court in 2014: see [2014] UKSC 9.
• RMSPumptools Ltd v Shotter (Outer House, 17 April 2012) – interim interdict – worldwide restrictive covenant against  use of designs for electrical submersible pumps used in offshore oil fields.
• Foley v Greater Glasgow Health Board UKEATS/0007/12/BI – equal pay claims and the operation of time-bar after a TUPE transfer.
• The Scottish Ministers v Stirton and Anderson [2013] CSIH 81; 2013 SLT 1141 – reclaiming motion against a recovery order made under the Proceeds of Crime Act 2002 on various grounds  including standard of proof, apparent bias and the definition of the alleged criminal conduct.
• Tods Murray LLP v MacLennan [2014] CSOH – recovery of documents under 1972 Act, section 1 and enforcement of post-termination restrictions contained in LLP agreement.
• Clark v Greater Glasgow Health Board – successfully resisted a £15 million claim for cerebral palsy caused at birth during what was alleged to have been the negligent management of labour.  A motion to amend the pursuer’s pleadings while the case was at avizandum was refused:  [2015] CSOH 176 (refusal of amendment motion); [2016] CSOH 24 (addendum to opinion on amendment); [2016] CSOH 25 (decision on the merits).
• McBride v Scottish Police Authority [2016] UKSC 27 – successfully represented in the UK Supreme Court a fingerprint officer who had been unfairly dismissed at the end of a lengthy period of restricted duties following the Shirley McKie fingerprint saga. An employment tribunal ordered reinstatement of the claimant but the EAT and Inner House replaced that remedy with compensation. The Supreme Court unanimously restored the original order. Supreme Court judgment.
• MacDonald v Glasgow City Council – successfully represented a group of women claimants in an appeal against the decision of an Employment Tribunal dismissing their claims based on the pay protection arrangements made by Glasgow City Council when it introduced a new pay and grading structure.  The council protected the pay of higher-paid employees for three years but did not raise the female employees’ pay to match it. UKEATS/0008/14/BI;  UKEATS/0009/14/BI;  UKEATS/0011/14/BI.
• Dryburgh v Fife Health Board [2016] CSOH 116 – represented a health board resisting a petition for judicial review of its decision not to allow legal representation at disciplinary and appeal hearings.
• Clark v Greater Glasgow Heath Board [2017] CSIH 17 – represented the Health Board again in the Inner House when the pursuer appealed against the decision not to allow the Minute of Amendment to be received after the close of the proof.  The appeal was refused. Applications by the pursuer to appeal to the Supreme Court were also refused by the Court of Session and the Supreme Court itself.
• Glasgow City Council v Unison, HBJ and GMB Claimants [2017] CSIH 34 – successfully represented the GMB-backed claimants in the Council’s appeal to the Inner House of the Court of Session against the EAT decision in MacDonald (above).
• McBride v Scottish Police Authority. Employment Tribunal, Glasgow, 22 December 2017 – following the remit from the Supreme Court (above), successfully representing the fingerprint expert in setting a new date for reinstatement and, when that was not complied with, countering the employer’s contention that reinstatement was not practicable.  The result was an award of compensation with the usual unfair dismissal cap lifted and an additional award of the maximum of 52 weeks’ pay amounting to over £415,000.
• McEachran v Scottish Ministers. Employment Tribunal, Edinburgh 27 July 2019 – represented the Scottish Ministers defending a claim for a pension by the President of the Pensions Appeal Tribunal for Scotland presented under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. His work was held not to be “the same [as] or broadly similar [to]” the work of the Chairman of the Scottish Land Court and President of the Lands Tribunal for Scotland or that of the was full-time Legal Member of the Lands Tribunal. The claimant has appealed to the EAT.
• Devanny v Scottish Ministers. Employment Tribunal 21 August 2019 – represented the Scottish Ministers defending a claim by the President of the First-tier Tribunal Housing and Property Chamber under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 citing as a comparator the full-time Legal Member of the Lands Tribunal for Scotland.  Their work was found not to be “the same or broadly similar” and the claim failed.
• Devanny v Scottish Ministers. Employment Tribunal 21 August 2019 – represented the Scottish Ministers defending a claim by the President of the First-tier Tribunal Housing and Property Chamber for equal pay citing as a comparator the President of the Mental Health Tribunal for Scotland.  Their work was found not to be “like work” and the claim failed.
• Scot Roads Partnership Project Ltd v Scottish Ministers [2019] CSOH 113.  Representing the Scottish Ministers in an action for declarator of breach of contract on which claims of up to £54 million were said to depend. During the M8, M73, M74 motorway improvement project an Agreement for General Settlement was entered into which involved Transport Scotland approving a traffic management proposal and communications plan for the Baillieston tie-in. They were found not to be in breach of that obligation. There was no appeal.
• New Lanark (Trading) Ltd and New Lanark (Hotels) Ltd v Office of the Scottish Charity Regulator [2019] UT 62. Representing companies whose application for entry in the Scottish Charity Register had been refused by OSCR. The First-tier Tribunal refused their appeal against that decision. The Upper Tribunal decided that the FTT had not provided proper, adequate and intelligible reasons for its decision to refuse the appeal and that it should re-make the decision itself.
• Malone v The Lord Advocate. Representing the Crown Office defending a claim for psychiatric injury allegedly caused by stress at work. Settled economically by Minutes of Tender and Acceptance in January 2021.
• New Lanark (Trading) Ltd and New Lanark (Hotels) Ltd v Office of the Scottish Charity Regulator [2020] UT 10. Having decided to re-make the decision, the UT agreed with the appellants that their activities which were commercial in nature also furthered their charitable purposes and directed OSCR to enter the companies in the register. OSCR marked an appeal in both cases to the Court of Session Inner House which in January 2021 refused the appeals: 2021 CSIH 7. Coverage in Third Sector Magazine.
• USDAW v Tesco Stores Ltd (Outer House, unreported, 12 February 2021). Acting for the shop-workers’ union obtaining an eleventh-hour interim interdict against the retail giant proceeding with a “fire and rehire” plan in relation to its workers at its Livingston distribution centre. The aim of the programme was to withdraw “retained pay”, a means of pay protection, but the proposed dismissals would, it was argued, have been unfair. The title and interest of the union was not challenged and, where the employer proposed to re-hire on different terms, an interim interdict against dismissal was held not to be inappropriate. Covered by The Herald: The Herald coverage.
• MS v General Teaching Council for Scotland [2021] CSIH 17. Representing a teacher who had been taken off the teaching register without his Asperger’s syndrome having been properly investigated. Case remitted to a differently constituted GTCS panel for reconsideration.
• McEachran v Scottish Ministers, Employment Appeal Tribunal 8 July 2021. Resisting the appeal by the claimant in his part-time workers less favourable treatment claim (above).
• Almond-Roots v Eljamel and Tayside Health Board [2021] CSOH 130. On behalf of the health board, who had admitted liability for medical negligence along with a private doctor which had resulted in complete cauda equina syndrome, obtaining an apportionment under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, section 3(1) (contribution between joint wrongdoers) of 0% liability, with 100% being apportioned to the private doctor. A reclaiming motion (or appeal) against that apportionment on behalf of the private doctor’s insurers was refused: [2022] CSIH 34.
• X v Scottish Police Authority  Employment Tribunal 15 January 2021 (not published until 14 October 2022 due to anonymisation issues). Successful defence of claims of failure to make reasonable adjustments, less favourable treatment and harassment all on the grounds of disability made by a senior manager of the Police Authority. On the facts, the employer was found to have fulfilled all its duties to the person with an admitted disability.
• Redcroft Care Homes Ltd v City of Edinburgh Council [2023] CSOH 95. Successfully resisting a petition for judicial review by a care provider seeking additional payments associated with a Framework Agreement for the provision of care for adults with special needs. The petition was ruled to be incompetent as the decision was not amenable to judicial review and, even if it were, the decision was rational and not in breach of any legitimate expectation.

Private dispute resolution.

Since June 2017, Calum has been a Fellow of the Chartered Institute of Arbitrators (FCIArb), having completed a module at Dundee University in International Commercial Arbitration and the CIArb’s Module 3 (Practice and Procedure of International Commercial Arbitration) and Module 4 (Award-Writing).   So far, he has accepted appointments as an arbitrator in construction, engineering and sale of goods disputes in Scotland and Northern Ireland.

He is also a mediator accredited with the London-based Centre for Effective Dispute Resolution (CEDR).  His skill as a mediator in contentious matters has been employed in numerous cases over the years including a high-value solicitors’ negligence claim, a tripartite employers-contractors-structural engineers dispute, a boundary dispute and a commercial lease dilapidations claim.  He is a member of the Faculty’s Dispute Resolution Service for arbitration and mediation and has addressed bodies such as the Chartered Institute of Arbitrators (Scottish Branch), the 21st Century Bar Conference and the Faculty of Advocates’ Arbitration Conferences on means of private dispute resolution.

Passing on skills.

His ability in teaching advocacy skills has been recognised by the Faculty for many years.  He is an instructor on the Foundation Course for Intrants to the Faculty, an Assessor of eligibility for entry to the Faculty and an assessor in the Faculty’s continuing Quality Assurance Scheme which monitors the ability of practising counsel to demonstrate their competence in oral advocacy.  He has also accepted invitations to lead courses for litigators in firms of solicitors in Scotland and England.

Calum was Scottish Legal News “Lawyer of the Month” for March 2021.

Mobile: 07801 257878
Email: Calum H S MacNeill KC