Iain G Mitchell KC

Business & Commercial

Iain has vast experience in this area of practice, extending back over his long career at the Bar. He is recommended in Chambers Directory for Commercial Dispute Resolution and has acted for and advised individuals, small businesses and large corporations in business disputes.

He has been heavily involved in acting in both England and Scotland seeking redress for bank customers in cases of alleged mis-selling of Interest Rate Swap Agreements and Tailored Business Loans, as well as in business disputes more generally.

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 & IT law

The only Scottish silk recommended by Chambers Directory both for IP Law and also in Band 1 for IT Law, Iain has acted for and advised individuals, small businesses and large corporations as well as public sector bodies including HM Land Registry and Police Scotland.

His litigation and 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 Honorary KC to OpenUK (a body concerned with promoting Open Source), as well as being the Chair of the Scottish Society of Computers and Law, a Court Assistant of The Worshipful Company of Information Technologists, and a member of the IT Panel of Bar Council of England & Wales.

He also has a growing international and academic reputation, being a Fellow of the European Law Institute in Vienna, UK Expert on the IT Committee of the Council of Bars and Law Societies of Europe, former Chair (now Vice-Chair) of the CCBE’s Surveillance Working Group and Chair of the Future Technologies Committee of the Association of European Lawyers. He frequently writes and  lectures throughout the UK and Europe on IT and IP law and Data Protection, and has participated in Seminars at the Universities of Cambridge, Copenhagen and the Marie Curie University in Lublin, Poland, amongst others. He is a Member of the Honorary Board of ITM Lecturers at the Institut für Informations-Telekommunikations- und Medienrecht, Westfälische Wilhelms-Universität, Münster, Germany. Formerly a Joint Editor of the Journal of Open Law, Technology and Society, his publications include contributions to Electronic Evidence (Butterworths), The Future of the Legal Profession in Europe (Bruylant, Brussels) and Open Source: Law Policy and Practice (Oxford University Press), as well as numerous papers and articles.

Employment

Iain G. Mitchell KC (Scotland) is Chair of the Legal Panel of WhistleblowersUK and was responsible for the drafting of the Protection for Whistleblowers Bill. He is a member of the Secretariat of the All-Party Parliamentary Group on Whistleblowing.

He frequently advises on Employment law and appears before both the Employment Tribunal and the EAT.

European law

Notwithstanding Brexit, Iain continues to be heavily involved, through his involvement in the CCBE, with lobbying and contributing to the legislative process and implementation of EU legislation including, previously, the GDPR and, presently, the AI Act, combatting child sexual abuse online, access to data for law enforcement, cross-border transmission of evidence, and other initiatives.

More widely, he actively participates on behalf of the CCBE in the work of the Council of Europe, including the proposed European convention on AI, and previously led for the CCBE in the consultations in Strasbourg on the Second Additional Protocol to the Budapest Cybercrime Convention. He is currently responsible for two CCBE Interventions before the European Court of Human Rights regarding electronic surveillance by the German Security services, and assisted in the drafting of the CCBE amicus curiae  brief to the US Supreme Court in the Microsoft Warrant case.

Prior to Brexit, his work in the area of EU Law included Freedom of Movement of persons, goods and capital, state aids and other aspects of Competition Law, 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.

Iain is a Fellow of the European Law Institute, Vienna.

Procurement

Iain has a particular expertise in 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 leading case on below and above threshold tendering rules, Sidey v Clackmannanshire Council and Pyramid Joinery and Construction Ltd [2010] CSIH 37.

He contributed the chapter Public Procurement of Open Source Software to both editions of Open Source: Law Policy and Practice (Oxford University Press).

Public & 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 appeared in several Parliamentary boundary inquiries and an Election Petition.

More widely, his public law practice includes a number of cases including Public Procurement, 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 as well as Judicial Reviews concerning the refusal of the Ministers 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. He has also been engaged and continues to be engaged in a number of cases seeking Just Satisfaction from the Scottish Ministers for losses suffered by landowners as a result of ultra vires legislation concerning certain Scottish Agricultural Tenancies.

He has also been involved on behalf of the CCBE in instructing Dutch Lawyers in a successful Human Rights challenge in the courts in the Netherlands to surveillance activities by the Dutch Security Services, as well as himself acting as counsel in two CCBE interventions before the European Court of Human Rights concerning surveillance activities by the German secret service. Additionally, he contributed to the drafting of the CCBE Intervention in the US Supreme Court in the Microsoft Warrant case.

Notable cases

• King v Black Horse Ltd. [2024] CSIH 3: Consumer Protection – whether continued use of vehicle by consumer post-rejections prevents exercise of right to reject [Inner House of the Court of session – Civil Appeal Court]
• Kaizer v Scottish Ministers [2018] CSIH 36: Negligence – duty of care of prison authorities to prisoners to prevent assault from fellow prisoner. [Inner House of the Court of session – Civil Appeal Court]
• Glasgow City Council v Scottish Legal Aid Board [2018] CSIH 37: Legal Aid – extent of Legal Aid Board’s duty of disclosure to opponent of Legal Aid applicant [Inner House of the Court of session – Civil Appeal Court]
• Q v Glasgow City Council [2018] CSIH 5: Social care – Judicial Review of Local Authority decision on provision of Social Care [Inner House of the Court of session – Civil Appeal Court]
• Gray v MacNeil’s Executor [2017] SAC (Civ) 9: Landlord and Tenant – Effectiveness of Verbal lease to create enforceable personal obligations without creating real rights. [Sheriff Appeal Court]
• Colletti v Alacaline Ltd and another [2017] EWCA Civ 1614: Employment Law – costs [Court of Appeal]
• Rivendale v Clark [2015] CSIH 27: Land Registration – Extent of Possession required to establish title. [Inner House of the Court of session – Civil Appeal Court]
• T v Locality Reporter [2014] CSIH 108: Child and Family Law – Locus standi of Foster Parents in Adoption proceedings. [Inner House of the Court of session – Civil Appeal Court]
• Playfair Investments Ltd v McElvogue [2012] CSOH 148: Bankruptcy – proper interpretation of s 150 of Bankruptcy and Diligence etc (Scotland) Act 2007 [Court of Session – First instance]
• Grant Estates Ltd v Royal Bank of Scotland Ltd [2012] CSOH 133: Banking – Important Scottish authority on interest rate swap mis-selling by banks. [Court of Session – First Instance]
• Sidey v Clackmannanshire Council & Pyramid Joinery & Construction Ltd [2010] CSIH 37: EU Procurement Law – Statutory Remedy for challenge to below-threshold tendering exercise restricted Judicial Review – above-threshold rendering remedies not available. [Inner House of the Court of session – Civil Appeal Court]
• Bvunzai v Glasgow City Council [2009] CSIH 93: Employment law – effect of supervening tribunal application on related question. [Inner House of the Court of session – Civil Appeal Court]
• Clarke v Fennoscandia Ltd 2008 SC (HL) 122: Enforcement of foreign judgements. [House of Lords]
• Moncrieff v Jamieson 2008 SC (HL) 1; [2007] 1WLR 2620: Easements – Leading case on easements, establishing existence of an easement of parking in both Scotland and England. [House of Lords]

Appointments

• Fellow, European Law Institute (Vienna) (2023)
• Chair, New Technologies Committee, Association of European Lawyers (2022 to date)
• Secretary, Ethical and Spiritual Panel, Worshipful Company of Information Technologists (2022 to date)
• Member, Regulatory Review Working Group, Bar Council of England & Wales (2021 to date)
• Member Mediation Committee, Association of European Lawyers (2021 to date)
• Chair, Legal Panel, WhistleblowersUK (2020 to date)
• Court Assistant, Worshipful Company of Information Technologists (2020 to date)
• Honorary Senior Counsel, OpenUK (2018 to date)
• Chair, Surveillance Working Group, CCBE (2014-2020); Vice-Chair 2020 to date)
• Member, Technology Committee, Law Society of Scotland (2012 to date)
• Member, Bar Council ad hoc working party on EU Data Protection Reform package (2012-2014)
• Member IT Panel, Bar Council of England & Wales (2011-date)
• Chair, Scottish Society for Computers and Law (2011 to date)
• UK Expert, IT Committee, CCBE (2011-date)
• Admitted as Liveryman, Worshipful Company of Information Technologists (2010)
• Honorary Lecturer, Institut für Informations-Telekommunikations- und Medienrecht, Westfälische Wilhelms-Universität, Münster, Germany (2009-date)
• Member, Church & Society Council, Church of Scotland (2009-2018)
• Member, Society Religion and Technology Project, Church of Scotland (2010-2019)
• Admitted as Freeman, Worshipful Company of Information Technologists (2008)
• Reader, Church of Scotland (2006 to date)
• Member, Scottish Courts Technology Forum (2005-2009)
• Member, Joint Advisory Committee on Justices of the Peace (Scottish Government) (2000-2004)
• Temporary Sheriff (1992-1997)

Publications

• A Practical Guide to the Law of Parking in Great Britain (Law Brief Publishing, 2024)
• Free & Open Source Software: Policy, Law and Practice  – “Public Sector & Open Source” (Oxford University Press, 2013; 2nd Edition, 2022)
• Innovation and Future of the Legal Profession in Europe, Bruylant, Brussels (2017) [contribution]
• Electronic Evidence (Mason), Scottish Chapter (Butterworths, April 2007; 2nd Edition,  2010; 3rd edition, 2012)
• The International FOSS Law Book – Joint author UK Chapter (Open Source Press, 2011)
• Formerly Joint Editor, Journal of Open Law, Technology and Society
• Formerly Joint Editor, E-law Review (W. Green & Sons)
• Formerly Executive Editor, Scottish Parliament Law Review (W. Green & Sons)

Qualifications

• Accredited Mediator, Mediation Forum (Ireland) (2006)
• Accredited Mediator, The Mediation Bureau (Scotland) (1997)
• Diploma in Trial Advocacy, National Institute for Trial Advocacy (USA) (1995)
• Certificate in Christian Studies, Aberdeen University (2006)
• LLB (Hons), Edinburgh University (1973)

Memberships

• Fellow, European Legal Institute
• Fellow, Royal Society of Arts
• Fellow, Society of Antiquaries of Scotland
• Founding Fellow, Institute of Contemporary Scotland
• Scottish Society for Computers & Law
• Regulatory Affairs Working Group, Bar Council of England & Wales
• IT Panel, Bar Council of England & Wales
• Council of Bars and Law Societies of Europe – IT Committee; Surveillance Working Group; UK Delegation
• Technology Committee, Law Society of Scotland
• Association of European Lawyers (EAL)
• European Lawyers Association (ELA)
• Scottish Council for International Arbitration
• OpenUK
• WhistleblowersUK
• Worshipful Company of Information Technologists
• Formerly Co-convener, Scottish Lawyers’ European Group

Languages

• English
• French
• Italian

Awards

• The OpenUK Award for Leadership, 2020; 2021 and 2022.

Testimonials

• “Iain is an inspirational advocate who turns his mind to the complecities of work at all levels, while taking the clients with him. He is considered and considerate, and never afraid to address something new” Chambers Scotland 2024 (Intellectual Property)
• “Iain’s service, response and advice are excellent. He can be relied on to provide sound advice and is extremely good in negotiations” Chambers Scotland 2024 (Commercial Dispute Resolution)
• “He is terribly practical; he understands what the client’s reality is and finds a way to make it work. He gets a kick out of the intricacies of the law and finding new solutions. A joy to deal with.” Chambers Scotland 2021 (Information Technology)
• “He is fantastically intelligent and sees very quickly what is important in a case.” “He is terribly practical and really nice to deal with. He gets a kick out of the intricacies of the law and finding new solutions.” Chambers Scotland 2021 (Intellectual Property)
• “He’s very practical. He’s got an ability to take a large amount of information and distil it to its original essence. A pleasure to work with.” Chambers UK 2017
• “He’s very practical, pleasant to work with and he’s got an impressive ability to take a large amount of information and distil it to its original essence.” Chambers UK 2017
• “Very intelligent and willing to go for ambitious arguments with great success. He will push the boundaries where necessary.” Chambers UK 2017
• “True genius – he delivers innovative, off-the-wall solutions other counsel would never mention.” Chambers UK 2013
• “He understands the key issues.” Legal 500
• “Recommended for IT-related intellectual property matters.” Legal 500
• An “exceptionally bright silk” who is “hugely knowledgeable on IT issues.” Chambers UK 2013
• “He is a man of high intellectual capability who leads where others follow.” Chambers UK 2011