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Areas of expertise

Professional information

  • 2017: Appointed Silk
  • 2017- present: Advocate Depute ad hoc
  • 2009-2017: Standing Junior to the Advocate General (from 2015 to HMRC)
  • 2005-2009: Standing Junior to the Scottish Ministers
  • 2014- 2021: Scottish Editor, Mithani on Directors’ Disqualification
  • 2004: Called at the Bar
  • 1996-2003: Commercial litigation solicitor
  • 1995: Dip. L.P., University of Glasgow
  • 1994: LL.B.(Hons) University of Glasgow
Professional experience

David is ranked as a leading Silk in seven separate practice areas by Chambers and Partners 2021, including Band 1 rankings in Company, Restructuring/Insolvency, Real Estate Litigation and Tax. He is also ranked and as one of the “Scottish Stars at the Bar”, by Chambers and Partners 2021.

David has appeared in numerous appeals before the United Kingdom Supreme Court, including as leading counsel, and appears regularly before the Inner House and the Commercial Court of the Court of Session.

Notable cases

David is best known for his practice in commercial contract and commercial real estate disputes, as well as his substantial practices in company law, insolvency and tax.

Commercial

  • Aberdeen City Council v Stewart Milne Group Ltd 2012 SC (UKSC) 240. Whether an overage agreement could, without any provision to that effect, be construed as requiring a sale to be at arms’ length for market value or alternatively whether such a term should be implied.
  • Cramaso LLP v Reidhaven’s Trustees 2014 SC (UKSC) 121. Whether a representation made to an individual fell to be regarded as a continuing representation which could be relied upon by a person (a limited liability partnership) who was not in existence at the time the representation was made.
  • Kennedy v The Royal Bank of Scotland plc 2019 SC 168. Whether prescription began to run when the pursuer received intimation from his bank that it was withdrawing (allegedly in breach of contract) the loan and banking facilities enjoyed by the pursuer.
  • Prospect Healthcare (Hairmyres) Ltd v Kier Build Ltd 2018 SC 569. Whether a pursuer should be liable to the defender for the expenses incurred to a third party following the abandonment of the principal action.
  • J&H Lamont of Heathfield Farm v Chattisham Ltd 2018 SC 440. Whether, in terms of an overage agreement, the developer was entitled to plead retention (based on an alleged claim for damages) as a defence to its obligation to grant a discharge of a standard security.

Property

  • Ashtead Plant Hire Co Ltd v Granton Central Developments Ltd 2020 SC 244. Whether a rent review clause fell to be construed as requiring that all buildings on the subjects of let, whether constructed by the tenant or not, be disregarded for review purposes.
  • M7 Real Estate Investment Partners VI Industrial Propco Ltd v Amazon UK Services Ltd 2019 SLT 1263. Whether the procedure provided for in the Sheriff Courts (Scotland) Act 1907, s34, applied such that a period of one year, rather than forty days, notice to quit required to be given.
  • ASA International Limited v Kashmiri Properties 2017 SC 107. Whether a servitude could be implied from surrounding circumstances, having regard to the question of whether access was reasonably required for the convenient and comfortable enjoyment of the alleged dominant tenement.
  • Balgray Ltd v Hodgson 2016 SLT 839. Whether a notice addressed to a director of a corporate landlord was a valid notice, having regard to the fundamental requirements of the power under which it was served and/or the “reasonable recipient” test.
  • Grove Investments Ltd v Cape Building Products Limited 2014 Hous LR 35. Whether, on a proper construction of a commercial lease, its provisions prevented the tenant from relying upon common law defences regarding the measure of loss.

Insolvency

  • Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 203. Whether the Lord Ordinary’s findings in fact, in a challenge to a gratuitous alienation, had been plainly wrong or were otherwise open to review on appeal.
  • Royal Bank of Scotland plc v Donnelly 2019 SLT 1448. Whether a bank could plead insolvency set-off against a claim for payment protection income compensation in circumstances where a final dividend had been paid under a protected trust deed.
  • Administrator of Dawson International plc, Noter 2018 SLT 1000. Whether the Environment Agency fell to be regarded as a creditor of an insolvent company in respect of potential liabilities under the Environmental Protection Act 1990 and the Water Resources Act 1991.
  • EOP II Prop Co III SARL v Carpetright plc [2019] CSOH 40. Whether a termination notice served under a CVA was valid having regard to the terms of the CVA.

Company

  • Heart of Midlothian Football Club plc and Partick Thistle Football Club Limited v Scottish Professional Football League Ltd 2020 SLT 735. Whether the affairs of the Scottish Professional Football League (“SPFL”) had been conducted in a manner which was unfairly prejudicial to the interests of two football clubs who had been relegated following a written resolution to alter the SPFL’s Articles of Association which allowed the league season to be curtailed.
  • Caley Oils Ltd (in administration) v Wood [2018] CSOH 42. Whether a company director had breached his fiduciary duties, and was liable to repay sums paid to him by the company, in circumstances where he knew or ought to have known that the company was insolvent or verging on insolvency.
  • Bradley v Secretary of State for Business Innovation and Skills 2017 SC 153. Whether the respondent director had pursued a deliberate policy of paying trade creditors before HMRC and, if so, whether that was a sufficient basis for the imposition of a disqualification order against the director.
  • Secretary of State for Business Innovation and Skills v Whyte [2014] CSOH 248. Whether conduct of the owner of Rangers Football Club, in his capacity as a director of the company, was such as to make him unfit to be concerned in the management of a company.

Tax

  • Advocate General v KE Entertainments Ltd 2020 SLT 723. Whether a change in guidance issued by HMRC as to the basis on which bingo operators were to calculate VAT fell to be regarded as a reduction in consideration for the purposes of Article 90 of the Principal VAT Directive and regulation 38 of the Value Added Tax Regulations 1995.
  • Revenue and Customs Commissioners v Taylor Clark Leisure plc 2018 SC (UKSC) 153. Whether a claim by a former member of a VAT group should be regarded as a timeous claim by the representative member for the purposes of the Finance Act 2008, section 121.
  • DCM (Optical Holdings) Ltd v Revenue and Customs Commissioners 2020 SLT 1131. Whether HMRC had the power to amend submitted repayment returns and, separately, whether assessments made by HMRC were timeous, for the purposes of the Value Added Tax Act 1994, section 73(6)(b).
  • NHS Lothian Health Board v Revenue and Customs Commissioners 2020 SC 351. Whether the EU law principle of effectiveness required a “practical” approach to be taken to historic claims for recovery of input tax.
  • Murray Group Holdings Ltd v Revenue and Customs Commissioners 2016 SC 201. Whether sums received by employees as loans in truth amounted to a redirection of taxable income.
Directories
  • Chambers UK Bar 2022 – Recommended as leading silk in Company (Band 1); Restructuring/Insolvency (Band 1); Real Estate Litigation (Band 1); Tax (Band 1); Commercial Dispute Resolution (Band 2); Construction (Band 2); and Professional Negligence (Band 2)
  • Chambers and Partners 2021: Scottish Stars at the Bar
  • Legal 500 – Recommended as leading silk in Commercial Disputes (Tier 2)
Select publications
  • Mithani on Directors Disqualification, Scottish Editor