23 May 2011

"If such be the law of England..." #superinjunction

Scots lawyers in the early years of their legal education are invariably exposed to Lord Cranworth's notorious if not exactly celebrated aside in his speech in Bartonshill Coal Co v Reid (1858) 3 MacQ 266 (at 285): "If such be the law of England, on what ground can it be argued not to be the law of Scotland?" Such follies are not unique to Victorian Law Lords. Just as the metropolitan "centre" of British political affairs is so often tone-deaf, clumsy and clueless in its understanding of Scotland, its creatures' consciousness and understanding of the United Kingdom's legal pluralism is, if anything, even more lamentably inadequate. London's many Cranworths revealed themselves in full surprise this weekend, as the Sunday Herald published the identity of a soccer player "CTB". The relevant details about the case - excluding the identity of the footballer, lately appearing on the front page of the Scottish Sunday - are set out in the judgment of Mr Justice Eady in the High Court of Justice, and I shan't attempt to parse them here. 

Unfortunately for the footballer in question, it appears he was poorly advised on the force of an English injunction in Scotland, however grandiose its purported sway.  Quoth Paul McBride QC...

“English law injunctions do not have jurisdiction in Scotland. If a party wanted to restrict the Scottish press, as well as the English, it would need to undertake parallel legal proceedings in Scotland, in order to obtain an “interdict”. This did not happen in the present case and so the Scottish press is not bound by the English injunction.”

With his usual lawyerly prescience, Scotland's foremost scone-and-law blogger, Love and Garbage saw this coming and enjoys a well deserved gloat at the expense of the shallowpated Cranworths, whose baseless assumptions have been so comprehensible (and foreseeably) diddled by the Sunday Herald. I commend his posts on the topic to those of you, seeking a more substantial (but entertaining scone-addled) analysis of the ongoing "superinjunction" controversy, from a Scottish perspective.


  1. You would have thought after 304 years of union they would ken about the difference between Scots and English law.

  2. Christ Lallands RLS was on the button there! Sadly it demonstrates as now that time does nothing to change the metropolitian londonium mind.

    The empire is no more England is not Britain, it's taken some Scots several generations to realise this.

  3. Anonymous,

    Stevenson's observation certainly poses some interesting questions about how we should understand our present situation, where a palsied comprehension of UK legal pluralism is so general. Should it be regarded as a novelty of our time (perhaps even attributable to devolution's "separate development" politically)? RLS's comment suggests that such an argument, however tempting, may miss the fact that such a lack of awareness is a long running feature of our UK political discourses. Certainly, this would chime with past practice, when Scots lawyers in the Commons played the role of tutors and instructors to their colleagues, who looked on bemusedly, and shrugged.