Calum MacNeill QC

Given that background, it is perhaps unsurprising that the young Mr MacNeill was determined to follow his medical social worker mother’s lead and try his hand at something different. After much procrastination he caved, though, if for no better reason than to hold his own in family debates.

“Law was a bit of a last-minute decision,” he recalls. “I was doggedly trying to think of other things that I might want to do and at one time thought that architecture would be a good idea, but then I just succumbed. Part of it was wanting to find out what people were talking about all those years.”

It’s just as well he did. Having started his career at Murray Beith Murray before moving on to Biggart Baillie and McGrigor Donald, Mr MacNeill called to the bar in 1992 and took silk in 2007. All 29 of those years have been spent at Westwater Advocates, where he has built a practice whose diversity is exemplified in two recent Court of Session wins.

In the first, he secured a win for New Lanark Trust in an appeal brought against it by the Office of the Scottish Charity Regulator (OSCR). In the second, he helped shopworkers’ union Usdaw secure an interim interdict that has prevented supermarket giant Tesco from firing and rehiring staff at its Livingston distribution centre in order to reduce their pay.

The New Lanark case was an appeal of a dispute that began life as the first case ever heard before the General Regulatory Chamber of the First-tier Tribunal, which took over the functions of the Scottish Charity Appeals Panel in 2018. New Lanark Trust, which manages the UNESCO World Heritage Site, took the original case against OSCR after the regulator refused to register trading and hotel businesses whose income is used to fund the charity. When the tribunal agreed with OSCR’s stance the case was appealed to the Upper Tribunal and then, finally, on to the Inner House of the Court of Session last year.

“We went to the Upper Tribunal on the basis that the First-Tier Tribunal had not given adequate or intelligible reasons for its decision,” Mr MacNeill says. “It’s not something anyone does lightly, to say there’s a professional tribunal and they haven’t given adequate reasons for the decisions they have come to.

“The nub of this is that OSCR sees umpteen charities with trading subsidiaries that do things to raise money for the charity, but that doesn’t make them a charity - if you sell Christmas cards or what have you and give all the money to Cancer Research that’s not furthering the activities of discovering a cure for cancer.

“OSCR were used to trading subsidiaries which were separate to a charitable cause raising money by means not really related to the actual work of the charity. The point of New Lanark is that the whole project is about bringing economic activity to a village that would otherwise have been deserted years ago.”

While the First-Tier Tribunal agreed with OSCR, that was overturned by Lord Tyre in the Upper Tribunal in December 2019. OSCR, which was ordered to enter New Lanark’s trading and hotel businesses onto the Scottish Charities Register, appealed. It was that appeal that was refused by Lord Justice Clerk Lady Dorrian, Lord Malcom and Lord Doherty last month in a decision that has the potential to be felt across the whole charities sector.

“It might have wider implications in that OSCR and no doubt the charity sector has been under the impression that trading subsidiaries are not charities,” Mr MacNeill says. “It opens the door somewhat to trading subsidiaries being charities in their own right, but I suspect that those instances will be few and far between.

“We shied away from saying that New Lanark is unique but it’s certainly an unusual project. The fact it is bringing life and economic activity into a village as part of the whole scheme was really central to the case. It doesn’t mean that if you have a bring-and-buy sale you’ll be able to register as a charity.”

Though that case could have an impact at the sectoral level, the Tesco case will be felt far more at the individual level, with the ruling effectively preventing the company docking employee pay-packets by up to £12,380 a year. Though he notes that the interdict only “maintains the status quo for the time being”, Mr MacNeill says the effect of the order has been to uphold a pay promise made to the Livingston workers over a decade ago.

“Back in 2008 Tesco was expanding its activities up here - it was restructuring its supply chain and as part of that built a massive distribution centre in Livingston,” he explains.

“They wanted staff to stay and work there so said they would take their basic pay and bonuses and add them up to get a monetary value. When they went onto new contracts it looked like they were being paid less, but they also got retained supplementary pay so they were no worse off. 

“In mid-January Tesco said that retained pay didn’t fit with what they were doing any more and they were going to withdraw it.”

As part of the new offer, workers were told that if they signed new contracts by February 13 they could remain on the same terms and conditions for the next 18 months, but then their pay would reduce. In Scotland, that would have resulted in a median reduction £4,730. Had the court order not been sought, any worker who did not sign the new agreement would have been automatically dismissed then rehired on less generous terms.

Having received the instruction from Usdaw on Wednesday, February 10, Mr MacNeill, who worked alongside Thompsons Solicitors partner David Martyn, had secured the interim interdict by 5pm two days later. That means workers who, he says, have been “getting food into the shop” throughout the pandemic, will be able to keep their retained pay for now, though Mr MacNeill says further litigation is likely further down the line.

“This can be revisited if there’s a change of circumstances, otherwise the determination continues and [Usdaw] can seek a full interdict at a full hearing,” he says.

Though litigation features heavily in Mr MacNeill’s practice it is just part of what he does and, as an experienced mediator and arbitrator, he is keen to start a debate in the profession about just what is meant by the term dispute resolution.

“The court is the dispute resolution means of last resort. Every day in our personal and professional lives we have actual or potential disputes which we resolve between ourselves,” he says.

“I would like to abolish the terms ‘alternative dispute resolution’ and ‘ADR’, which arbitration, mediation and other means of dispute resolution are commonly referred to as.

“The Chartered Institute of Arbitrators officially uses the term private dispute resolution, and that seems apt.”

Though his father Torquil, brother Ruari (a former Anderson Strathern partner) and sister Deirdre (also a Westwater Advocates QC and sheriff) have all passed away, it is a subject that would have made for a lively MacNeill family debate.