Nearly seven years after the shutters came down and the chipboard sarcophagus went up, Rogano, Glasgow’s most revered restaurant has emerged from its deep, deep slumber.
The news was delivered at 10.35am by my learned friend, David Thomson KC to five Supreme Court judges sitting at the City Chambers. Mr Thomson was acting for the restaurant’s tenants in a labyrinthine stand-off with the landlords about liability for the multi-million-pound cost of repairing extensive water damage. It had dragged on for more than two years.
Along from him was Roddy Dunlop KC for the other side. The 130 or so members of the public who had queued from around 9am to annexe a seat in the baronial Burgh Court Hall might normally have been expected to break out something aptly louche and frizzante at the news. This morning though, they seemed flummoxed.
They’d been relishing the prospect of witnessing their esteemed my Lords bestowing discernment as two of Scotland’s sharpest lawyers parried and thrusted beneath their rheumy gaze. Instead, Mr Thomson rose sheepishly to his feet and announced that the appellants and responders had settled all outstanding claims late the previous evening.
It’s just that, well … no-one had thought to tell their Lordships about this development.
Soon it became clear that these five-star briefs had not long found out themselves. The learned counsel confessed that this had “caused considerable embarrassment to me”. Not bloody half.
Their lordships then fixed their gaze on Mr Dunlop as if to say “did you know anything about this?”
No, my Lords, he had not. “I share my learned friend’s professional embarrassment,” said the silvery jurist. It’s not very often you’re moved to empathise for courtroom titans such as these, but we all did. Had both their clients got howling with the hooch in celebration at the end of a thorny legal battle that was coming down to the wire in the highest court in the land? And then simply forgotten to appraise their counsellors and lordships of the fact until long after they’d started on their eve-of-game brisket and legumes?
Not since, well … not since late last Saturday afternoon in the east end of Glasgow had an apparent abandonment threatened to cause a frisson among the lieges. Did this mean no evidence would be heard, enquired my Lords. Surely not? It was like seeing Maria Callas stepping up to sing Casta Diva from Norma and forgetting the first line. These lawyers’ affrontedness was slowly turning black.
The show, though, had to go on and both these learned friends duly agreed that there was still much to be gained from all the arguments being heard. These would expertly probe the nooks and crannies of contracts and liability and the points at which the DNA ribbons of Scots and English law curled round each other and then separated. And all of it at the historic first sitting of the UK’s highest court in Glasgow.
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This audience, replete with lawyers, undergraduates and academics had set aside a full day for this moment. These people had come for a show.
Messrs Thomson and Dunlop knew it too and stepped up to the plate. Their Lordships, presided over by Lord Reed, proud at returning to his native Scotland as team captain, were satisfied that both these lawyers had been thrown a snider and reacted benevolently. No harm needed to have been done here if everyone played their part.
Joining Lord Reed at the top table were his four other five-star martials of the law, Lord Stephens, Lady Simler, Lord Doherty, and Lord Hodge. Occasionally, when these Lords sought some clarification or felt moved to provide their own interpretation of pertinent cases you felt you’d entered a different realm where the English language is dispensed like an old single malt whisky: slow, opulent and with no impurities.
Not for the first time, you reproached yourself for not taking better care of your own unlovely and slovenly diction. And for always being a sucker for cut-diamond, aristocratic English. The Supreme Court was opened by Her Majesty, Queen Elizabeth in 2009 and is the final Court of Appeal for civil cases in the UK and for civil cases and for criminal cases in England, Wales and Northern Ireland.
Prior to its establishment, such cases were presented at the House of Lords and, as such, seemed to gnaw at the sacred separation of powers: Parliament and the Judiciary; legislature and executive.
This sitting in Glasgow is laden with significance: symbolic and actual. “The Supreme Court’s decision to convene in Glasgow carries constitutional significance,” said trainee lawyer, Erin Sweeney, writing in Harper Macleod’s company blog. “It publicly affirms the distinctiveness of Scots Law, one of the world’s oldest independent legal systems, and highlights the importance of ensuring that its processes remain visible and relevant to those practicing within Scotland’s separate legal tradition.
"The Court’s presence in Scotland reinforces the continued recognition of Scots Law within the UK’s constitutional framework. Some have chosen to regard it as blocking the full writ and expression of Scots Law. In reality, it anoints it.”
Their Lordships will issue a written judgment on the case later, despite both parties reaching a settlement. This makes me curious. What if they come to a unanimous decision? Won't the favoured party come to regret doing a deal?
At first hearing, the evidence seems abstruse, where 50 words are doing the work of one. But then, if you listen closely, you realise that each performs its own unique task. These idioms and decrees will form a precedent and expand or modify existing paradigms. And so there can be no room for doubt or supposition. There has to be exactitude. These words must form a sanctuary that won’t easily be breached. Both counsellors excel in their powers of recall and in chivvying out nuances hidden to the civilian eye.
Later, Mr Dunlop tells me he’s sanguine about the unfortunate turn of events this morning. “It happens a lot in commercial law,” he says, “but maybe not just so late in the day.” We both agree that the prospect of a newly repaired Rogano supersedes everything.
If there had been a risk of some reputational damage to the presentation of Scots Law, then he and Mr Thomson repaired it with towering advocacy and intellectual rigour.
Kevin McKenna is a Herald columnist and feature writer
