With over 27 years’ experience of practice at the bar, Calum H S MacNeill QC 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 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.
What the directories say.
He has been ranked as one of the “leaders at the bar” in commercial dispute resolution by Chambers Directory every year since 2009.
Chambers 2018 recommended him for employment law (Band 1) 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”. It also recommends him for Commercial Dispute Resolution as “an astute individual and pleasant to deal with”.
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.”
The Legal 500 2017 ranks him in the employment, commercial litigation and property, construction and agriculture categories.
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.
- Primary Healthcare Centres (Broadford) Ltd v Humphrey [2010] CSOH 129 and [2011] CSOH 92 – liability of former partners of a dissolved partnership for rent and the effect of their rights of relief inter se on their individual liability.
- 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 by the UK Supreme Court in 2014: see [2014] UKSC 9.
- Fatal Accident Inquiry into the death of Erin Casey, Dundee Sheriff Court, 24 August 2011 – duties of neurologists and neurosurgeons when providing advice to patients about Sudden Unexpected Death in Epilepsy (“SUDEP”).
- Holmes v Greater Glasgow Health Board, UKEATS/0045/11 – unlawful deduction of wages and res iudicata when a previous claim for alleged unlawful deductions had been settled.
- 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.
- Fatal Accident Inquiry into the death of Trevor Smith, Glasgow Sheriff Court, 30 August 2012 – paracetamol toxicity.
- Fatal Accident Inquiry into the death of Sharon Harkin, Stirling Sheriff Court, 5 April 2013 – care of patient who died from undiagnosed cancer in custody.
- 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.
- Fatal Accident Inquiry into the death of Declan Hainey, Paisley Sheriff Court, 3 September 2014 – child protection.
- 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. https://www.supremecourt.uk/cases/docs/uksc-2014-0235-judgment.pdf
- 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. (The claimants Calum represented did not participate in the unsuccessful challenge to the Job Evaluation Scheme.)
- 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 charities 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.
- 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 charities that activities which are commercial in nature can also further their charitable purposes and directed OSCR to enter the charities in the register. OSCR has marked an appeal to the Court of Session.
Dispute-resolution outside litigation.
In June 2017, Calum became 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 several 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.
Follow Calum on twitter! @calum_macneill
Mobile: 07801 257878
Email: Calum H S MacNeill QC
