Professor of Scottish Private Law

MA LLB DipLP FRSE
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  • Email: elspeth.reid@ed.ac.uk
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Research Interests

Elspeth Reid's main research interests are in Scottish private law. She is currently working on a monograph for Edinburgh University Press on The Scots Law of Delict. Her book on Personality, Confidentiality and Privacy in Scots Law was published in 2010 by W Green for the Scottish Universities Law Institute. Her other publications include Personal Bar (with John Blackie) published in 2006, also by the Scottish Universities Law Institute, and she has written extensively on the law of delict in comparative perspective. She has published articles on Russian legal matters and translated and edited numerous Russian texts. She was Editor of the Edinburgh Law Review from 2002 until 2006. She is currently Series Editor of the Edinburgh Studies in Law monograph series published by Edinburgh University Press, a Fellow of the Royal Society of Edinburgh, an Associate Member of the International Academy of Comparative Law and also a qualified solicitor.

Websites

Professor Elspeth Christie Reid's Homepage at Edinburgh Law School

Research Interests

Elspeth Reid's main research interests are in Scottish private law. She is currently working on a monograph for Edinburgh University Press on The Scots Law of Delict. Her book on Personality, Confidentiality and Privacy in Scots Law was published in 2010 by W Green for the Scottish Universities Law Institute. Her other publications include Personal Bar (with John Blackie) published in 2006, also by the Scottish Universities Law Institute, and she has written extensively on the law of delict in comparative perspective. She has published articles on Russian legal matters and translated and edited numerous Russian texts. She was Editor of the Edinburgh Law Review from 2002 until 2006. She is currently Series Editor of the Edinburgh Studies in Law monograph series published by Edinburgh University Press, a Fellow of the Royal Society of Edinburgh, an Associate Member of the International Academy of Comparative Law and also a qualified solicitor.

Websites

Professor Elspeth Christie Reid's Homepage at Edinburgh Law School

Courses Taught

Delict (Ordinary) (Course Organiser)

Delictual Liability (Honours) (Course Organiser)

PhD Supervisees

Po-Yuan Chang  'Intentionally Inflicted Mental Harm'

María Paz Gatica Rodríguez  'The law of neighbours'

Arantxa Gutiérrez Raymondova  'The taxonomy of non-pecuniary losses. A comparative study of English law and French law.'

Books and Reports

Elspeth Reid, Daniel Visser, Private Law and Human Rights: Bringing Rights Home in Scotland and South Africa, (Edinburgh University Press, 2013)
Abstract: Scotland and South Africa are mixed jurisdictions, combining features of common law and civil law traditions. Over the last decade a shared feature in both Scotland and South Africa has been a new intense focus on human rights. In Scotland the European Convention on Human Rights now constitutes an important element in the foundation of all domestic law. Similarly, the Constitution of the Republic of South Africa, adopted in 1996, has as its cornerstone a Bill of Rights that binds not only the legislature, the executive, the judiciary and all organs of state, but also private parties. Of course the "constitutional moments" from which these documents sprang were very different and the Scottish and South African experience in some aspects could not be more dissimilar. Yet in many respects the parallels are close and compelling. This book, written by experts from both jurisdictions, examines exactly how human-rights provisions influence private law, looking at all branches of the subject. Moreover, it gives a unique perspective by comparing the approach in these kindred legal systems, thus providing a benchmark for both. Key Features: Twenty comparative case studies in private law and human rights. A challenging collaboration between South African and Scots Universities Considers the impact of a bill of fundamental human rights upon the legal relationships between private individuals.

Elspeth Reid, Max Loubser, Product Liability in South Africa, (Juta, 2012)

Elspeth Christie Reid, Personality, Confidentiality and Privacy in Scots Law, (W. Green, 2010)
Abstract: The protection of personality, confidentiality and privacy interests has in recent years become an increasingly urgent focus for the law of delict worldwide. In Scotland, incorporation of the European Convention on Human Rights has brought a new imperative and a new European focus to such discussions. This new book by Elspeth Reid will be the first to present an integrated account, combining the treatment of common law and statute with an appraisal of the impact of the ECHR on Scots Law, filling an important gap in the academic and practitioner market. In Scotland, personality rights generally and convention rights specifically have been increasingly asserted in the courts. As well as covering these cases in detail, the book will take account of the growing jurisprudence south of the border, as well as important recent developments in other jurisdictions.

Elspeth Reid, Vernon Valentine Palmer, Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland, (Edinburgh University Press, 2009)
Abstract: Returning to a theme featured in some of the earlier volumes in the Edinburgh Studies in Law series, this volume offers an in-depth study of ‘mixed jurisdictions’ — legal systems that combine elements of the Anglo-American Common Law and the European Civil Law traditions. This book compares key areas of private law in Scotland and Louisiana. In thirteen chapters, written by scholars on both sides of the Atlantic, it explores not only legal rules but also the reasons for the rules, discussing legal history, social and cultural factors, and the law in practice, in order to account for patterns of similarity and difference. Contributions are drawn from the Law Schools of Tulane University, Louisiana State University, Loyola University New Orleans, the American University Washington DC, and the Universities of Aberdeen, Strathclyde, and Edinburgh.

Elspeth Reid, John Blackie, Personal Bar, (W Green, 2006)
Abstract: This book has been published in the Scottish Universities Law Institute series. It is the first monograph to be published on Personal Bar since 1921. The book divides into a General Part, which analyses the underlying framework of the law, and a Special Part which applies that framework to specific practical contexts.

Elspeth Reid, David Carey Miller, A Mixed Legal System in Transition: T. B. Smith and the Progress of Scots Law, (Edinburgh University Press, 2005)
Abstract: This collection of essays considers the work of Professor Sir Thomas Smith QC (1915--1988) and, through that work, the development of Scots law as a mixed legal system. Smith was a leading figure in the revival of Scots law which began in the 1950s. Well-known internationally as a comparatist, he was the pioneer of the idea of a grouping of mixed legal systems. Yet in Scotland he was a controversial figure, whose advocacy of the civil law tradition was challenged and whose legacy is disputed. This volume is the first sustained attempt to assess Smith's career, and his writing, methodology, ideology and influence. The contributors approach their subject from different angles and in different ways. Two contributors are from other mixed legal systems (South Africa and Louisiana).

Elspeth Reid, Edinburgh Essays on Russia: Celebrating 50 years of Russian Studies, (Astra Press, 2000)

Articles

Elspeth Reid, 'Beyts v Trump International Golf Club Scotland Ltd: Caught short on data protection and privacy', (2017), Edinburgh Law Review, Vol 21, pp 411-417
Abstract: Case comment on Beyts v Trump International Golf Club Scotland Ltd [2017] SC EDIN 21; 2017 GWD 12-187

Elspeth Reid, 'Different and yet the same? Delictual liability of roads authorities in Scotland and in England ', (2016), Juridical Review, Vol 2016, pp 1-18

Elspeth Reid, 'Montgomery v Lanarkshire Health Board and the Rights of the Reasonable Patient ', (2015), Edinburgh Law Review, Vol 19, pp 360-366
Abstract: Patient autonomy, the textbooks tell us, is the “cornerstone of modern medical jurisprudence in the United Kingdom”, and it is now some years since the House of Lords acknowledged the significance of this fundamental principle. The medical profession too has adjusted its literature so as to exhort doctors to “work in partnership with patients, sharing with them the information they will need to make decisions about their care”. Nonetheless, doubt has remained in the Scottish courts as to whether the doctor, not the patient, knows best in determining what level of advice is appropriate in informing agreement to medical procedures. With the important recent decision of the Supreme Court in Montgomery v Lanarkshire Health Board practice has caught up with principle. The doctrine of “informed consent” has been affirmed as part of Scots law, so that this question is now to be resolved by reference to what a “reasonable person in the patient’s position” would consider “material”.

Elspeth Reid, 'Loose Connections: Matters of the Heart and Delictual Liability', (2014), Edinburgh Law Review, Vol 18, pp 97-104

Elspeth Reid, 'Breach of Confidence: Translating the Equitable Wrong into Scots Law', (2014), Juridical Review, pp 1-14

Elspeth Reid, 'Implications for the Scots Law of Nuisance: Coventry v Lawrence', (2014), Edinburgh Law Review, Vol 18, pp 383-88

Elspeth Reid, '“Accession to Delinquence”: Frank Houlgate Investment Co Ltd (FHI) v Biggart Baillie LLP', (2013), Edinburgh Law Review, Vol 17, pp 388-94

Elspeth Reid, 'Synthesis or Serendipity?: The Case of Mixed Jurisdictions', (2013), Annuario di diritto comparato e di studi legislativi, pp 147-58

Elspeth Reid, 'Defamation and Political Comment in Post-Soviet Russia ', (2013), Review of Central and East European Law, Vol 38, pp 1-36
Abstract: The law of defamation in Russia has a long history. Its roots are in the European tradition, but the discontinuity of its historical development has meant that there have been particular difficulties in reconfiguring the law for the new human rights era following Russia’s accession to the Council of Europe in 1996 and ratification of the European Convention on Human Rights in 1998. Defamation law must now be been tested against the fundamental standards enshrined in the ECHR, to ensure that appropriate levels of protection are provided not only for reputation but, also, for freedom of expression. It has been left largely to the judiciary and judge-made law to manage this difficult transition. This article analyses the elements that make up the law of defamation in Russia and assesses the challenges that remain in adapting it to the twenty-first century.

Elspeth Reid, 'Malice in the Jungle of Torts ', (2013), Tulane Law Review, Vol 87, pp 901
Abstract: This Article takes as its starting point Tony Weir’s comparative essays on the law of torts. In particular it examines the circumstances in which requirement to establish malice subsists in the intentional torts and tracks “the staggering march of negligence” first charted by Weir fifteen years ago. As the conclusion argues, this process is certain to continue unless greater precision can be achieved identifying the element of intention entailed in different wrongs and the interests thereby protected.

Elspeth Christie Reid, 'English Defamation Reform: A Scots Perspective', (2012), Scots Law Times, pp 111-14

Elspeth Reid, 'John Murphy, The Law of Nuisance ', (2012), Edinburgh Law Review, Vol 16, pp 286-88

Elspeth Christie Reid, 'Rebalancing Privacy and Freedom of Expression ', (2012), Edinburgh Law Review, Vol 16, pp 253-58

Elspeth Reid, 'Lawrence McNamara, Reputation and Defamation ', (2010), Edinburgh Law Review, Vol 14, pp 168-70

Elspeth Reid, 'No Sex Please, We’re European: Mosley v News Group Newspapers Ltd', (2009), Edinburgh Law Review, Vol 13, pp 116-21

Elspeth Reid, 'Human Rights and Private Law: Privacy as Autonomy. Ed by Katja S Ziegler ', (2009), Edinburgh Law Review, Vol 13, pp 182-83

Elspeth Reid, 'The Oxford Handbook of Comparative Law. Ed by Mathias Reimann and Reinhard Zimmermann ', (2008), Edinburgh Law Review, Vol 12, pp 153-55

Elspeth Reid, 'CHILDREN IN TORT LAW, PART I: CHILDREN AS TORTFEASORS. Ed by Miquel Martín-Casals...CHILDREN IN TORT LAW, PART II: CHILDREN AS VICTIMS. Ed by Miquel Martín-Casals ', (2008), Edinburgh Law Review, Vol 12, pp 502-03

Elspeth Reid, 'Protection for Rights of Personality in Scots Law: A Comparative Evaluation', (2007), Electronic Journal of Comparative Law, Vol 11

Elspeth Reid, 'Wainwright v United Kingdom:: Bringing Human Rights Home?', (2007), Edinburgh Law Review, Vol 11, pp 83-88

Elspeth Reid, 'Liability for Harm Suffered in Institutional Care: M v Hendron', (2006), Edinburgh Law Review, Vol 10, pp 309-16

Elspeth Reid, 'Personal Bar: Three Cases', (2006), Edinburgh Law Review, Vol 10, pp 437-42

Elspeth Reid, 'Protecting Legitimate Expectations and Estoppel in Scots Law: Report to the XVIIth International Congress of Comparative Law, July 2006 (Response to Questionnaire II.A.4)', (2006), Electronic Journal of Comparative Law, Vol 10
Abstract: Scotland has a mixed legal system in the sense that elements of both the Common Law and Civil Law traditions coexist in many areas of its private law. This topic offers an illustration of that mixed character. There is no Scots doctrine of legitimate expectations or estoppel as such, but the functional equivalent is to be found in the law of personal bar, a topic of considerable practical importance as well as theoretical interest. While the English law of estoppel has been drawn upon extensively by the Scots courts, estoppel and personal bar do not directly equate, as will be discussed below. Moreover, there are features of the Scots doctrine which suggest similarity with the Civil Law of abuse of rights, and some of the terminology used for bar has an identifiable ius commune derivation. The questionnaire set by the General Reporter invited discussion of the general nature and origins of the doctrine, with an emphasis on its implications for contract law, but it should be noted that personal bar has extensive application in many other areas of the law.

Elspeth Reid, Max Loubser, 'Liability for Products in the Consumer Protection Bill 2006: A Comparative Critique', (2006), Stellenbosch Law Review, Vol 17, pp 412-53
Abstract: A comparative analysis of proposed statutory reform of the South African law governing liability for damage caused by defective products.

Elspeth Reid, 'Informed Consent: From Paternalism to Patient Autonomy in the UK?', (2004), Tijdschrift voor Consumentenrecht, pp 135-40

Elspeth Reid, 'The Doctrine of Abuse of Rights: Perspective from a Mixed Jurisdiction', (2004), Electronic Journal of Comparative Law, Vol 8

Elspeth Reid, 'Personal Bar: Case-law in Search of Principle', (2003), Edinburgh Law Review, Vol 7, pp 340-66
Abstract: Like the law of estoppel, its broad equivalent in Common Law jurisdictions, the law of personal bar in Scotland has an extensive case-law but an uncertain conceptual structure. This article draws upon that case-law to offer the framework of analysis for a unitary doctrine in which the central focus is the assessment of unfairness. The framework invites a reappraisal of the traditional terminological divisions within personal bar in order to identify indicators of unfairness specific to the particular context in question.

Elspeth Reid, Max Loubser, 'Vicarious Liability for Intentional Wrongdoing: After Lister and Dubai Aluminium in Scotland and South Africa', (2003), Juridical Review, pp 143-61

Elspeth Reid, 'Comparative Law: Perspective from a Mixed Jurisdiction', (2002), HLS Cahier, pp 49-57

Elspeth Reid, 'Mixed Legal Systems: Introduction to Special Issue', (2002), Juridical Review, Vol 2002, pp 61-63

Elspeth Reid, 'Strict Liability and Comparative Law ', (2002), HLS Cahier, pp 61-76

Elspeth Reid, 'Neil Duxbury, Jurists and Judges: An Essay on Influence (Oxford: Hart Publishing, 2001) ', (2002), Edinburgh Law Review, Vol 6, pp 138-39

Elspeth Reid, Bernhard A. Koch, Sylvia Gaspar Lera, 'Cours de cassation francaise, 1 dec 99: responsabilité pour activites sportives', (2002), European Review of Private Law, Vol 10, pp 529-46
Abstract: The judgment of 1 December 1999 by the Court of Cassation relates to the responsibility of organisers of sport events, and more precisely, to that of users of go-cart circuits. This responsibility was relied upon by a go-cart driver who suffered an accident on a circuit of this type.The judgment is classic in its principle: the Court of Cassation rules that organisers of sport activities have to guarantee the security of participants. However, this security obligation is limited to an “obligation of means”. Thus, the organiser is only liable in case of defective means. Participants of this dangerous sport are supposed to have accepted its risks; that is why they cannot expect from the organiser to offer an absolute guarantee of safety. Moreover, as participants play an active role in the sport activity, they introduce an uncertain external factor into the organiser's security obligation: their own behaviour. The consequences are nevertheless potentially serious for the participant, because the participant is not entitled to compensation if the organiser cannot be proven to have been at fault. Only a very rigorous interpretation of the obligation of cautiousness and surveillance on the part of the organiser can avoid this result.The judgment, being further proof of the difficulties arising from the distinction between obligation of means and obligation of result, is analysed in the following comments from the point of view of Austrian, Scottish and Spanish law.

Elspeth Reid, 'Shotlandskoye pravo kak smeshannaya pravovaya sistema ', (2002), Themis: ezhegodnik istorii prava i pravovedenii͡a, Vol 3, pp 118-34

Elspeth Reid, 'Mixed Legal Systems: Patterns of Development', (2001), Electronic Journal of Comparative Law, Vol 5

Elspeth Reid, 'Acquiescence in the Air: William Grant v Glen Catrine Bonded Warehouse', (2001), Juridical Review, pp 191-99

Elspeth Reid, 'Financial Loss and Negligent Nuisance ', (2000), Scots Law Times, pp 151-53

Elspeth Reid, 'Recognising Waiver: James Howden & Co Ltd v Taylor Woodrow Property Co Ltd', (1999), Edinburgh Law Review, Vol 3, pp 107-11

Elspeth Reid, 'Basil S Markesinis, Foreign Law and Comparative Methodology, A Subject and a Thesis ', (1999), Edinburgh Law Review, Vol 3, pp 259-60

Elspeth Reid, 'Liability for Dangerous Activities ', (1999), International and Comparative Law Quarterly, Vol 48, pp 731-56

Elspeth Reid, 'Abuse of Rights in Scots Law ', (1998), Edinburgh Law Review, Vol 2, pp 129-57
Abstract: Abuse of rights has recently achieved growing recognition in many of the mixed legal systems, but in Scotland, where the restricted doctrine of aemulatio vicini has long been accepted, it has been largely ignored. This paper explores the applications of abuse of rights in France, Quebec, Louisiana and South Africa, and considers the reasons for its rejection in England. It also questions whether aemulatio vicini may provide a sufficient foundation for a general doctrine of abuse of rights in Scots law.

Elspeth Reid, 'Eastenders and Neighbours ', (1998), Edinburgh Law Review, Vol 2, pp 94-100

Elspeth Reid, 'Martin Vranken, Fundamentals of European Civil Law (London: Blackstone Press, 1997) ', (1998), Edinburgh Law Review, Vol 2, pp 249-51

Elspeth Reid, 'The Law of Trusts in Russia ', (1998), Review of Central and East European Law, Vol 24, pp 43-56

Elspeth Reid, 'The Basis of Liability in Nuisance ', (1997), Juridical Review, pp 162-75
Abstract: The confusion in the law of Scotland as to the legal basis of liability in nuisance was resolved in 1985 in RHM Bakeries v. Strathclyde Regional Council where the House of Lords decided that fault was the proper basis of liability and rejected the incorporation of strict Reynolds v. Fletcher liability into Scots law. Elspeth Reid analyses subsequent developments in the light of the recent case of Kennedy v. Glenbelle.

Elspeth Reid, 'Review Article: New Books on Russian Law', (1997), Europe-Asia Studies, Vol 49, pp 736-38
Abstract: Reviews the books `Politics and Justice in Russia: Major Trials of the Post-Stalin Era,' by Yuri Feofanov and Donald D. Barry, and `Trying to Make Law Matter. Legal Reform and the Labour Law in the Soviet Union,' by Kathryn Hendley.

Elspeth Reid, 'The Russian Federation Constitutional Court, October 1991-1993 ', (1995), Coexistence (now Europe-Asia Studies), Vol 32, pp 277-303

Chapters

Elspeth Reid, 'Delictual liability and the loss of opportunity of fatherhood Holdich v Lothian Health Board' in Andrew Simpson, Roderick Paisley, Douglas Bain (ed.) Northern Lights (Aberdeen University Press 2015)

Elspeth Reid, Max Loubser, 'Right to Fair Value, Good Quality and Safety ' in T. Naudé, S. Eiselen (ed.) Commentary on the Consumer Protection Act (Juta 2015)

Elspeth Reid, 'Traditional delictual principles and reproductive rights New directions for the law of personality?' in Johan Potgieter, Johann Knobel, Rita-Marie Jansen (ed.) Essays in Honour of Johann Neethling (LexisNexis (South Africa) 2015) 385-394

Elspeth Reid, 'An Older Convergence The Scots Law of Delict' in Jan Lokin, Michael Milo, Jan Smits (ed.) Tradition, Codification and Unification (Intersentia 2014) 101-20

Elspeth Reid, 'Mixed but Not Codified The Case of Scotland' in Julio Cesar Rivera (ed.) The Scope and Structure of Civil Codes (Springer 2013) 343-68

Elspeth Reid, ''That Unhappy Expression' Malice at the Margins' in Stephen GA Pitel, Jason W Neyers, Erika Chamberlain (ed.) Tort Law (Hart Publishing 2013) 441-62

Elspeth Reid, Daniel Visser, 'Introduction ' in Elspeth Reid, Daniel Visser (ed.) Private Law and Human Rights (Edinburgh University Press 2013) 1-11

Elspeth Reid, 'The Impact of Institutions and Professions in Scotland ' in Paul Mitchell (ed.) Comparative Studies in the Development of the Law of Torts in Europe (Cambridge University Press 2012) 59-88

Elspeth Christie Reid, 'Scotland ' in Vernon Valentine Palmer (ed.) Mixed Jurisdictions Worldwide (Cambridge University Press 2012) 216-76

Elspeth Reid, 'Defamation and Verbal Injury ' in Joe M. Thomson (ed.) Delict (W. Green 2010) 12A-01-12A-91

Elspeth Reid, 'Smith v Littlewoods Organisation Ltd (1985) ' in Charles Mitchell, Paul Mitchell (ed.) Landmark Cases in the Law of Tort (Hart Publishing 2010) 251-72

Elspeth Reid, 'The Snail in the Ginger Beer Float Donoghue v Stevenson' in John P. Grant, Elaine E. Sutherland (ed.) Scots Law Tales (Dundee University Press 2010) 83-101

Elspeth Reid, 'Protection of Personality Rights in the Modern Scots Law of Delict ' in Niall Whitty, Reinhard Zimmermann (ed.) Rights of Personality in Scots Law (Dundee University Press 2009) 247-312

Elspeth Reid, 'Personality Rights A Study in Difference' in Vernon Valentine Palmer, Elspeth Christie Reid (ed.) Mixed Jurisdictions Compared (Edinburgh University Press 2009) 387-410
Abstract: Over the past century, in both the Civil Law and the Common Law, the concept of ‘personality rights’ has evolved to encompass that bundle of rights which protects the integrity and inviolability of the individual. There are rights which ‘protect the attributes of the human person’, and thus concentrate upon ‘the être — the being — in contrast with the avoir — the having’. But while the category is recognised in both Scotland and Louisiana, and an abundant literature has formed on both sides of the Atlantic, there are significant variations with regard to the private law remedies by which personality rights may be vindicated. This chapter considers how the interaction of Civil Law and Common Law traditions has shaped the protection of personality rights in the mixed legal systems of Louisiana and Scotland.

Elspeth Reid, 'Sections on Scots Law ' in Monika Hinteregger (ed.) Environmental Liability and Ecological Damage in European Law (Cambridge University Press 2008)

Elspeth Reid, 'Protecting Legitimate Expectations and Estoppel Scotland Report' in Bénédicte Fauvarque-Cosson (ed.) La confiance légitime et l'estoppel (Société de législation comparée 2007) 349-76

Elspeth Reid, 'Strange Gods in the Twenty-first Century The Doctrine of aemulatio vicini' in Elspeth Reid, David L. Carey Miller (ed.) A Mixed Legal System in Transition (Edinburgh University Press 2005) 239-54
Abstract: Smith's inaugural lecture as Professor of Civil Law at the University of Edinburgh in 1958 set out the manifesto for Smith's comparative law. The lecture took as its starting point the conceptual structure of the law of delict. Important opportunities had been missed in the failure to build delict on the sound foundations of the actio injuriarum and the lex Aquilia, and Scots law suffered from the misidentification of culpa with the English tort of ‘negligence’. These themes have been further developed and reappraised elsewhere. This chapter focuses upon a further topic also discussed on this platform by Smith: the principle of aemulatio vicini (or what is popularly but not very happily called ‘abuse of rights’).

Elspeth Reid, 'Scots Law Report ' in Franz Werro, Vernon Valentine Palmer (ed.) The Boundaries of Strict Liability in European Tort Law (Staempfli/Carolina Academic Press/Bruylant 2004)

Elspeth Reid, 'Scotland ' in Vernon Valentine Palmer (ed.) Mixed Jurisdictions Worldwide (Cambridge University Press 2001) 201-39

Elspeth Reid, 'The Transformation of Russian Private Law ' in Elspeth Reid (ed.) Edinburgh Essays on Russia (Astra Press 2000) 131-46

Working Papers

Elspeth Reid, 'Delictual Liability and the Loss of Opportunity of Fatherhood: Holdich v Lothian Health Board' 2015
Abstract: Is the loss of the opportunity of fatherhood a form of damage recognised by the law of delict? Much academic commentary has already been generated by the English case of Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1, in which the Court of Appeal ruled that the negligent destruction of sperm samples entrusted for storage to the defendant by cancer patients constituted an actionable breach of bailment. In reaching that decision it took the view that the damage to the sperm samples could not be regarded as personal injury, and other potential grounds for liability in tort were not explored in depth. These issues have now come to the fore in Scotland in Holdich v Lothian Health Board [2013] CSOH 197, 2014 SLT 495, which arose out of similar circumstances. Following citation of Yearworth, Lord Stewart held the pursuer relevantly to have argued that sperm samples deposited by him with the defender were capable of being owned by him, and that, consequently, failure properly to conserve them could be regarded as a breach of the contract of deposit. However, his Lordship further allowed that the case in negligence for damages for mental injury, and for loss of “autonomy”, was relevant for proof, observing in addition that a claim based upon personal injury might not have been “far fetched”. Others have commented in detail upon the property law implications of Holdich (see See K. Reid “Body Parts and Property”, Edinburgh Law School Working Paper Series, 2015/25 (SSRN, 2015). This paper focuses instead upon the important questions of delictual liability raised thereby.

Elspeth Reid, 'The Sheriff in the Heather: Beaton v Ivory' 2013
Abstract: This essay was written for publication in a collection which examines in detail the background to various leading Scots cases prior to the twentieth century. The case in question, Beaton v Ivory, decided in 1887, was to become one of the leading Scots authorities limiting liability in delict/tort on the part of public officers for wrongful deprivation of liberty. But while this case has been frequently cited, little attention has been paid to the controversial circumstances from which it arose. This essay traces the troubled background of the Crofters' War in the Scottish Highlands in 1880s and suggests the importance of that context to the outcome of the case. It goes on to evaluate the continuing significance of the case as an authority in the modern law.