Iain G Mitchell QC

Profile

Iain G Mitchell QC  was called to the Scottish Bar in 1976, and took silk in 1992. He was accredited as a mediator by the Mediation Bureau (Scotland) in 1997 and by Mediation Forum Ireland in 2007. He is a member of the Scottish Council for International Arbitration and sat on the bench as a Temporary Sheriff from 1992 to 1997.

Iain is an experienced litigator with a wide and varied civil practice, with strengths in Business law, European Law, Public Procurement Law, Employment Law and Public Law, as well as being the only Scottish Silk recommended by the Legal 500 for Intellectual Property and Information Technology Law. He is Chairman of the Scottish Society for Computers and Law is also Co-convenor of the Scottish Lawyers' European Group.

He has appeared in over 50 reported cases, including two in the House of Lords: Moncrieff v Jamieson 2008 SC (HL) 1  where he succeeded in definitively establishing the existence of an easement of parking in the laws of both Scotland and of England and Clarke v Fennoscandia Ltd 2008 SC (HL) 122, a case concerning the enforcement of foreign decree allegedly obtained fraudulently in the US Third Circuit, and involving issues of Scots, English, French, European, United States, and Colorado law.

His work is informed by extensive practical experience in business, the charitable and voluntary sectors, politics, and his keen interest in the arts and heritage.  His sensitivity to commercial realities has frequently been commented upon and this, together with his substantial experience, enables him to develop innovative solutions, giving holistic advice which places the needs of clients in a wider commercial setting.  One client described Iain as "inquisitive, perceptive and open-minded, and these qualities make him extremely effective."

As a Scots lawyer who is also qualified in ADR, he is able to accept, through Tanfield Chambers, litigation before UK Tribunals and International bodies, provide advice on Scots and European Law, and to undertake all kinds of Arbitration and Mediation work.

Experience

Iain has significant experience in Business law, European Law, Public Procurement Law, Employment Law, Intellectual Property and Information Technology Law, and is developing a growing reputation in Public Law.

Business and Commercial

Iain has vast experience in this area of practice, extending back over his long career at the bar. He has acted for and advised individuals, small businesses and large corporations. He is highly regarded for his sensitivity to commercial realities and for focussing upon clients' needs. His approach is rooted in the understanding that commercial litigation is not an end in itself but must be seen in a wider business context.

IP and IT Law

The only Scottish silk recommended by the Legal 500 in this practice area, Iain has acted for and advised individuals, small businesses and large corporations. His litigation or advice work has ranged over every aspect of the field, including copyright, software patents, passing off, trade mark infringement, registered industrial designs, plant breeders rights, software licensing, file sharing, video streaming, and internet defamation. He is a member of the European Legal Network (a world-wide grouping of lawyers with a particular interest in Open Source Software); and, as well as being the Chairman of the Scottish Society of Computers and Law, and of the Faculty of Advocates IT Group, he is also Joint Editor of the International Free and Open Source Law Review, a Liveryman of The Worshipful Company of Information Technologists and a Member of the Honorary Board of ITM Lecturers, Institut für Informations-Telekommunikations- und Medienrecht, Westfälische Wilhelms-Universität, Münster, Germany.

Employment

He has recently been involved in widely publicised and high-profile work in this area, having advised the Scottish Young Lawyers' Association on whether legal trainees can be made redundant, and having appeared for the Faculty of Advocates Free Legal Services Unit to help bring to a close a nine year legal battle on behalf of a client, Clarence Bvunzai in his racial discrimination case against the City of Glasgow Council. Appeal Court judge, Lord Reed said of him: "The willingness of counsel and solicitor to provide their services reflects the best traditions of the legal profession and was of great assistance to the court." He is also a member of the Equality Commission's Panel of Advocates.

European Law

His work in this area has included Freedom of Movement of persons, goods and capital, enforcement of judgements (including, in the House of Lords, aspects of the case of Clarke v Fennoscandia Ltd 2008 SC (HL) 122; and, in the Inner House of the Court of Session (the Appeal Court) questions relating to security for costs in relation to EU litigants.) He has a particular expertise in European Public Procurement, having advised upon or litigated questions as diverse as Home Office procurement of security fencing, NHS competitive tendering, local authority procurement of scientific services, and, most significantly, the recent leading case on below and above threshold tendering rules, Sidey v Clackmannanshire Council and Pyramid Joinery and Construction Ltd [2010] CSIH 37.

Public and Administrative Law

Iain has  extensive experience of Election and Parliamentary Law, having served for about ten years as the Honorary Secretary of the Scottish Conservative and Unionist Association (and having fought numerous Westminster, Scottish and European Parliamentary Elections as a candidate). As Counsel he has advised on questions of election expenses, media coverage during elections, and has conducted several Parliamentary boundary inquiries and an Election Petition.

He has a growing reputation in the field of Judicial Review, he has been involved in a number of cases, including Local Authority placement of individuals in Care Homes, the placing of children on the "at risk" register and provision of NHS out of hours care. He is currently involved in Judicial Reviews concerning the refusal of the Minister to undertake an enquiry into NHS out of hours care in Highland Perthshire, and seeking to challenge Part 3 of the Land Reform (Scotland) Act as ultra vires of the Scottish Parliament as infringing the European Convention on Human Rights.

Significant Cases

Over 50 reported cases, and numerous unreported cases, including, most recently:

In the House of Lords:

Moncrieff v Jamieson 2008 SC (HL) 1 (establishing existence of an easement of parking in both Scotland and of England)

Clarke v Fennoscandia Ltd 2008 SC (HL) 122 (enforcement of foreign judgements)

and in the Court of Session:

Sidey v Clackmannanshire Council and Pyramid Joinery and Construction Ltd [2010] CSIH 37 (inability of Procuring authorities in below threshold procurement to "opt in" to EU Procurement Rules relating to above threshold procurement).

Bvunzai v Glasgow City Council [2009] CSIH 93 (employment law - effect of supervening tribunal application on related question).

Testimonials

'The willingness of counsel and solicitor to provide their services reflects the best traditions of the legal profession and was of great assistance to the court' Lord Reed in Bvunzai v Glasgow City Council [2009] CSIH 93

'The way Mr. Mitchell handled the case was well beyond anything I could have managed' Clarence Bvunzai (client) quoted in The Scotsman newspaper, 14th December, 2009.

'All QCs can provide an answer to a complex question: very few can take the complex question, and recast it accurately and concisely in a way which makes the answer obvious. Iain is one such QC. He is inquisitive, perceptive and open-minded, and these qualities make him extremely effective. Iain is a pleasure to work with: he is authoritative and persuasive, but always approachable and practical. I recommend him and his work unreservedly' Andrew  Katz, Solicitor, Moorcrofts LLP, Marlow, Bucks.

'No-one at the Scottish Bar knows more about IT and IT law than Iain. He is a brilliant IP and IT QC. A blue-sky thinker who will never give up in finding the key to unlock a problem' Colin Hulme, Solicitor, Burness LLP, Glasgow.

'Iain is an astute, well-connected and resourceful legal expert. His knowledge extends beyond the traditional boundaries of the legal field, and include a clear understanding of broader issues concerning education and access to information. Having interacted with him on several occasions, I have no hesitation in recommending his work' Shane Coughlan, Legal Coordinator, Free Software Foundation Europe.

Publications

Joint Editor, Free and Open Source Software Law Review

Electronic Evidence, Disclosure, Discovery and Admissibility (Chapter relating to Scotland) (Butterworths, April 2007; 2nd Edition, Butterworths 2010)

Formerly Executive Editor, Joint Editor, Scottish Parliament Law Review (Greens) 

Formerly Joint Editor, E-law Review (Greens)

Numerous articles in Green's Family Law Review, The Journal of the Society for Computers and Law, Multimedia und Recht, The Business Edge (Supplement of the National Post, Toronto) and others.

Memberships

Current Chairman, Scottish Society for Computers and Law
Current Chairman, Faculty of Advocates Information Technology Group
Current Co-convenor Scottish Lawyers' European Group
Member, European Legal Network
Member, Scottish Council for International Arbitration

Qualifications

LLB (Hons), Edinburgh University 1973
Diploma in Trial Advocacy, National Institute for Trial Advocacy (USA) 1995
Accredited Mediator, The Mediation Bureau (Scotland) 1997
Accredited Mediator, Mediation Forum (Ireland) 2006
Admitted as Freeman, Worshipful Company of Information Technologists 2008

Directory Quotes

'A Marmite silk - if you want someone conventional and anodyne he’s not the counsel to go to - he’s a genuine blue-skies thinker'  The Legal 500 2009

Appointments

Temporary Sheriff 1992 - 1997

Member, Joint Advisory Committee on Justices of the Peace (Scottish Government) 2000 - 2004

Member, Panel of Approved Counsel, Equality Commission 2004

Member, Scottish Courts Technology Forum 2005

Honorary Lecturer, Institut für Informations-Telekommunikations- und Medienrecht, Westfälische Wilhelms-Universität, Münster, Germany 2009

Member, Church and Society Council, Church of Scotland 2009