Scotland - 1985- 1989

Scotland. Many cases are heard in Scotland, but if they appear also to deal with the law in England, they are listed (perhaps unwisely) under that heading. To see full lists of cases heard in Scotland, see IHCS and OHCS (Inner and Outer Court of Session.

These cases are extracted from a very large database. The entries on that database are now being published individually to the main swarb.co.uk website in a much improved form. As cases are published here, the entry here will be replaced by a link to the same case in that improved form on swarb.co.uk. In addition the swarb.co.uk site includes very substantial numbers of cases after 2000. Please take the time to look.  

This page lists 73 cases, and was prepared on 19 May 2014. These case are being transferred one by one to the main swarb.co.uk site which presents them better, with links to full text where we have it, and much improved cross referencing.
RHM Bakeries (Scotland) Ltd -v- Strathclyde Regional Council 1985 SLT 214
1985

Lord Fraser of Tullybelton
Scotland, Negligence, Nuisance Casemap
1 Cites

The suggestion that the decision in Rylands v Fletcher had any place in Scots law is "a heresy which ought to be extirpated."
Edinburgh District Council -v- Secretary of State for Scotland 1985 SC 261
1985

Scotland, Administrative
1 Citers
Forsyth -v- A F Stoddard & Co Ltd 1985 SLT 51
1985
OHCS
Lord Justice Clerk Wheatley
Scotland, Limitation

1 Citers
An action for damages by an employee against his employer was raised 48 days after the expiry of the triennium due to an oversight by an assistant with the pursuer's solicitors. The sheriff refused to allow the action to be brought, the Sheriff Principal allowed it and on appeal the Second Division reversed the decision of the Sheriff Principal. Held: A pursuer in such circumstances has to accept responsibility for the sins of omission or commission of his solicitor as "the correct exposition of the law". since the pursuer was legally aided, the defenders would probably have to pay their own expenses, win or lose, whereas if the pursuer were refused the indulgence which he sought the defenders would not be placed in that position, was a relevant consideration: "In every case of this nature there is a common theme. If the pursuer is granted the court's indulgence the defender loses a cast iron case, since but for that he would be legally free from the claim, and he is faced with the risk of losing the case with the consequential financial repercussions. That is a factor to be taken into account. He has no way out of that. On the other hand, if the pursuer is not granted the court's indulgence his claim against the defender comes to an end, and the defender is freed and relieved of a claim which might have been a perfectly justifiable one. However, the pursuer might have, as here, an action against his solicitors for professional negligence which might or might not recoup him in whole or in part for the damages which he could no longer obtain from the defender. There are imponderables about such an alternative, and its outcome can vary from case to case. Neither of these contrasting considerations is in itself conclusive, and the weights to be applied to them respectively will again depend on the circumstances. In my opinion it is not illegitimate to have in consideration the strength of the case against the third party and the likelihood of a successful prosecution of such a case, but again that is just a factor. Another consideration (although the Sheriff Principal rejected it - wrongly in my view), even if it only carries a little weight, is the burden of the expenses the defenders have to bear even if they are successful, since the pursuer is a legally assisted person. This in a way is merely consequential on the major issue, but it is entitled to be taken into account for what it is worth."
Tudhope -v- McCarthy [1985] CLY 3934
1985

Scotland, Criminal Practice Casemap
1 Citers
Central Regional Council -v- B; 1985
William Muir (Bond 9) Ltd -v- Lamb [1985] IRLR 95
1985
EAT
Employment, Scotland Casemap
1 Citers
The employee was found to have been unfairly dismissed, but he had not pursued his internal appeal rights. Held: A failure by a dismissed employee to appeal against his dismissal could not amount to a failure to mitigate his losses within section 74(4).
Lord McDonald MC said: "The appellants accept the finding of unfair dismissal. They argue however that, because she declined to follow the internal appeal procedure, she had therefore failed to mitigate her loss. The suggestion was made to us that we should take account of this and reduce the award of compensation by 50%.
We take it to be clearly established that there is no obligation upon an employee who is dismissed to follow up an internal appeal procedure before making application to an industrial tribunal. This in our opinion is clear from the case of Chrystie v. Rolls Royce (1971) Ltd [1976] IRLR 336 and Hoover Ltd v. Forde [1980] ICR 239. It is true that in the latter case an industrial tribunal had found that had the dismissed employee availed himself of the appeal procedure the decision to dismiss him might have been rescinded and on that ground apparently his compensation was reduced by 50%. We are bound to say that we have great difficulty in accepting the reasoning in that case. It seems to us to be purely speculative to attempt to assess what would have happened in the event of an appeal being taken. There are many imponderable factors. One is the manner in which the appeal is handled. Another is the person or persons to whom the appeal lies. In an industrial situation it may very often happen that an employee who has been dismissed considers that there is no point in him following up the internal appeal procedure because he does not have confidence in the persons who would hear that appeal. It would therefore be quite wrong in our view to penalise an employee who has been unfairly dismissed by reducing her compensation because she did not follow through whatever internal appeal procedure may have existed.
That is enough to decide the case in favour of the respondent and the appeal is therefore dismissed."
Employment Protection (Consolidation) Act 1978 74(4)
Arthur Bell & Sons -v- Assessor for Fife [1965] RA 535
1985

Lord Avonside
Scotland, Rating

Lord Avonside said, with reference to the estimation of the annual value of subjects under the 1956 Act, that it was notorious that one must take a building according to its use at the time of the valuation.
Valuation and Rating (Scotland) Act 1956
Porcelli -v- Strathclyde Regional Council [1986] ICR 564; [1986] SC 137; [1985] ICR 1977
1985
EAT
Lord McDonald
Discrimination, Employment, Discrimination, Employment, Scotland Casemap
1 Citers
A woman school technician was subjected to a campaign of sexual harassment by two fellow male non-managerial technicians. She sought a transfer. Held: The real question was whether the sexual harassment was to the detriment of the applicant within section 6(2)(b). The claim of sex discrimination succeeded.
Lord McDonald said: "It was argued on behalf of the applicant that the words "subjecting her to any other detriment" were so universal that they covered acts of sexual harassment committed against her during her employment, without reference to any consequences thereof so far as her employment was concerned. The mere fact that they had been committed automatically placed her employers, perhaps vicariously, in breach of section 6(2)(b) and section 1(1) of the Act of 1975.
We do not think this interpretation is correct. The Act of 1975 does not outlaw sexual harassment in the field of -employment or elsewhere. That is left to the common law in an appropriate case. What it does outlaw in the field of employment is discrimination against a woman within the terms of her contract of employment on the ground of her sex. In certain cases sexual harassment may be relevant in this connection. An employer who dismisses a female employee because she has resisted or ceased to be interested in his advances would, in our view, be in breach of section 6(2)(b) and section 1(1) of the Act of 1975 for reasons arising from sexual harassment. Similarly if, for the same reason, he takes other disciplinary action against her short of dismissal, he would also be in breach. This action could be suspension, warning, enforced transfer, etc., all of which would be to the detriment of the female employee although open to an employer under her contract of service in a genuine case not associated with sexual harassment.
If this is a correct interpretation of the statute we ask ourselves what detriment, if any, within her contract of employment, the applicant suffered in the present case. The answer, we feel, is not far to seek. It lies in the fact that on 4 August 1983 she felt obliged to seek transfer from Bellahouston Academy to another school, and this was duly granted with effect from 19 September 1983. The campaign of harassment, including sexual harassment, with the objective of making the applicant apply for transfer had succeeded."
Sex Discrimination Act 1975 1(1)(a) 6(2)b)
Bradford -v- McLeod; HCJ 1985
Rush -v- Fife Regional Council; SCS 1985
RHM Bakeries (Scotland) Ltd -v- Strathclyde Regional Council; HL 24-Jan-1985
Webster -v- Lord Advocate [1985] ScotCS CSIH_1
7 Feb 1985
scs
Scotland
[ Bailii ]
Tudhope -v- Mccarthy [1985] ScotHC HCJAC_1
8 Feb 1985
HCJ
Scotland, Crime
[ Bailii ]
Salaried Staff -v- Swears & Wells [1985] ScotCS CSIH_2
15 Feb 1985
scs
Scotland
Link[s] omitted
Fenning -v- Hm Advocate [1985] ScotHC HCJAC_2
3 May 1985
HCJ
Scotland, Crime
[ Bailii ]
Scottish Discount Co -v- Blin [1985] ScotCS CSIH_3
23 May 1985
scs
Scotland
Link[s] omitted
Grant -v- Peter Gauld & Co [1985] ScotCS CSIH_4
12 Jun 1985
scs
Scotland
Link[s] omitted
Squires -v- Perth and Kinross Dc [1985] ScotCS CSIH_5
11 Jul 1985
scs
Scotland
[ Bailii ]
Zahnrad Fabrik Passau -v- Terex [1985] ScotCS CSOH_6
29 Aug 1985
scs
Scotland
Link[s] omitted
McIntosh -v- HM Advocate 1986 SC 169
1986
HCJ
Lord Justice Clerk (Ross)
Scotland, Criminal Practice
1 Citers
The appellant was convicted of supplying cannabis to a named individual at a house in Paisley. The appellant had acted with his co-accused Miss C who had made the actual supply. There was sufficient evidence against Miss C to prove that she had made the supply from two sources: a statement that she had made to the police, admitting the supply, and the eye-witness testimony of her sister. The sister's evidence was available against the appellant, but the Appeal Court quashed the appellant's conviction on the ground that the co-accused's statement was not evidence against the appellant and therefore the sister's evidence was not corroborated, as it requires to be in Scots law. Held: "It is plain that without the evidence of Deborah Campbell's voluntary statement, there was no corroborated evidence of supply to Maureen Campbell. In a question with Deborah Campbell the jury were entitled to treat her voluntary statement as corroboration. However, the jury were not entitled to rely on the evidence of the voluntary statement of Deborah Campbell when considering the case against the other co-accused including the appellant. What Deborah Campbell said in her voluntary statement to the police was not evidence against the appellant." The co-accused's statement made no mention of the appellant, but was none the less not admissible against him to prove the supply with which he was charged.
Lord Advocate -v- R W Forsyth Ltd (1986) 61 TC 1
1986

Lord Wylie
Corporation Tax, Scotland, Jurisdiction Casemap

The taxpayer appealed his corporation tax assessments and had applied to a special commissioner for postponement of payment. The applications was to be heard in Glasgow, but for convenience it was heard in London, where it failed. The taxpayer then asked the High Court for judicial review of the postponment decisions. At the same time, the Crown had issued summonses in the Court of Session seeking payment of the tax due. Held: The court granted a decree in favour of the Crown in both proceedings. The High Court had no jurisdiction in the matter. The decision of the special commissioner on a Scottish tax case, although sitting for administrative convenience in London, remained subject to the supervisory jurisdiction of the Scottish court. Confusion could result if more than one court had jurisdiction.
Connor -v- Strathclyde Regional Council 1986 SLT 530
1986

Scotland, Administrative Casemap

Brentnall -v- Free Presbyterian Church of Scotland 1986 SLT 471
1986

Lord Justice-Clerk
Scotland, Ecclesiastical Casemap
1 Citers
Kelly -v- Monklands District Council; 1986
Strathclyde Regional Council -v- Porcelli 1986 SC 137; [1986] ICR 564; [1986] IRLR 134
1986
SCS
Lord President Emslie
Discrimination, Scotland Casemap
1 Cites

Mrs Porcelli was employed as a science laboratory technician at a school in Glasgow. Two technicians in the same department pursued a vindictive campaign against her for the deliberate purpose of making her apply for a transfer to another school. This conduct was both unpleasant and intimidating. It included various obscene acts which had a sexual innuendo. When the gender of the victim dictates the form of the harassment, that of itself indicates the reason for the harassment, namely, it is on the ground of the sex of the victim. Degrading treatment of this nature differs materially from unpleasant treatment inflicted on an equally disliked male colleague, regardless of equality of overall unpleasantness: "It was a particular kind of weapon, based upon the sex of the victim, which . . would not have been used against an equally disliked man."
Pinkerton -v- Pinkerton [1986] SLT 672
1986
OHCS
Lord Mackay of Clashfern
Scotland, Landlord and Tenant
1 Citers
An agreement by A to let a farm to himself, his wife and two sons was a valid lease which gave security of tenure. the Landlord and tenant were sufficiently different for a valid agreement between them to be possible.
Porchetta -v- Porchetta 1986 SLT 105
1986

Lord Dunpark
Scotland, Children Casemap
1 Citers
Before the Act of 1986 was enacted, a father did not have an absolute right to access to his child. He is only entitled to access if the court is satisfied that that is in the best interests of the child, and that the onus to show that is on the father who seeks access. The child in this action of divorce, was only 18 months old. He had had almost no contact with his father, who had seen him only twice very briefly. The mother was adamantly opposed to access, and the judge was satisfied that any attempt at access at that time would only sustain this hostility and that the child would sooner or later sense it and suffer thereby. The only reason given for the father's application was that he was the father of the child. Held: Once the paramountcy of the child's welfare was recognised, there could be no assumption of a right of access.
Law Reform (Parent and Child) (Scotland) Act 1986 3
Watson-Towers Ltd -v- McPhail 1986 SLT 617
1986

Lord Wylie
Scotland, Contract, Limitation
1 Citers
The pursuer submitted a motion for summary judgment for the value of goods which had been supplied subject to a reservation of title clause. The pursuer's evidence consisted of a letter from the defender making an offer expressed to be without prejudice but which attached a schedule listing the goods in its possession. Held: The schedule was admissible because it was, on the true construction of the letter, not a "hypothetical admission or concession for the purpose of securing a settlement" but a statement of fact.
Cunningham -v- Scotsman Publications [1986] ScotCS CSOH_1
27 Nov 1986
SCS
Scotland
Link[s] omitted
Rainey -v- Greater Glasgow Health Board [1987] 1 AC 224; 1987 SLT 146; [1987] 2 CMLR 11; [1986] 3 WLR 1017; [1987] ICR 129; [1987] IRLR 26; [1987] 1 All ER 65; 1987 SC (HL) 1; [1987] UKHL 16; [1986] UKHL 8
27 Nov 1986
HL
Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Griffiths, Lord Mackay of Clashfern, Lord Goff of Chieveley
Discrimination, Scotland Casemap
1 Citers
The House considered the scope of the 'genuine material factor' defence in section 1(3) of the Act where prima facie indirect discrimination exists and objective justification needs to be established. Held: It adopted the approach of the European Court in Bilka. Lord Keith confirmed that there was no difference between European and domestic law on this matter. Any justification of unequal payments between sexes must be "genuinely due to a material factor" defence pursuant to section 1(3). The reference to "necessary" means "reasonably necessary".
Equal Pay Act 1970 1(3)
[ Bailii ] - [ Bailii ]
Air Ecosse Ltd -v- Civil Aviation Authority (1987) 3 BCC 492, Ct of Session
1987
OHCS
Scotland
1 Citers
P & M Sinclair -v- The Bamber Gray Partnership 1987 SC 203
1987

Lord Prosser
Litigation Practice, Scotland
1 Citers
A motion for summary decree is not intended to replace a hearing on the procedure roll which is designed for the disposal of legal questions requiring more detailed and extensive legal debate.
Smith -v- Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco -v- Littlewoods Organisation Ltd; HL 1987
Scottish Old People's Welfare Council, Petitioners; SCS 1987
Montgomery -v- Lockwood 1987 SCLR 525
1987

Sheriff Principal R.R. Taylor QC
Scotland, Children Casemap

1 Citers
The pursuer had no right of access to the child unless the court granted it and that the court could not make any order unless it was satisfied that to do so would be in the interests of the child.
Maloco -v- Littlewoods [1987] UKHL 18; 1987 SCLR 489; [1987] 2 WLR 480; 1987 SLT 425; 1987 SC (HL) 37
5 Feb 1987
HL
Scotland, Negligence
The pursuer sought damages after his café was burned in a fire which started in a neighbouring insecure abandoned building owned by the defenders.
Link[s] omitted
Comex Houlder Diving Ltd -v- Colne Fishing Co Ltd [1987] UKHL 19; 1987 SLT 443; SC (HL) 85
19 Mar 1987
HL
Lord Mackay of Clashfern
Scotland, Negligence, Contract

The House considered the means of imposing liability under the 1940 Act. The House was asked whether or not a draft agreement was binding notwithstanding that it had not been formally executed as apparently envisaged by the parties. Held. No right of contribution exists under Scottish law unless the right arises out of liability on a judgment rendered by the Scottish courts. The parties' agents "were proceeding upon the understanding that the binding legal obligation would be consented to in the form of execution of the formal release, in the terms satisfactory to both parties."
Lord Mackay of Clashfern said that: "final mutual assent as spoken of by Lord Blackburn in Rossiter v Miller . . means mutual assent to be bound in law".
Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 3(2)
Link[s] omitted
Kay's Tutor -v- Ayrshire and Arran Health Board [1987] UKHL 17; [1987] 2 All ER 417; 1987 SC (HL) 145; 1987 SLT 577
14 May 1987
HL
Scotland, Personal Injury, Damages
[ Bailii ]
Jessop -v- Stevenson (Stewart) [1987] ScotHC HCJ_1
13 Nov 1987
HCJ
Scotland, Crime
[ Bailii ]
Sutherland District Council -v- Secretary of State for Scotland; SCS 23-Dec-1987
Leggate -v- HM Advocate 1988 JC 127
1988

Scotland, Criminal Practice
1 Citers
The judge has a wide discretion to refuse any application by the advocate depute to cross-examine the appellant on his previous convictions.
HM Advocate -v- Ashrif 1988 SLT 567
1988

Lord Justice Clerk (Ross)
Scotland, Criminal Practice

The accused had sought to recover the previous convictions of the complainant not from the prosecution, but from the Scottish Criminal Record Office. Held: The appeal court came down firmly against permitting defence agents to recover the previous convictions of Crown witnesses: "In my opinion, there are very sound reasons why a diligence in these terms should not be granted. If access is to be given to such criminal records of a witness, it could not be confined to solicitors acting for accused persons but would also be available to accused persons who were appearing on their own behalf. This might then result in an accused getting full information of all offences of which the witness had been convicted even though these were not relevant and even though they had occurred many years before. If that were to be the position, the result might well be that members of the public would be slow to come forward to give evidence if they knew that their past record was liable to become public and in particular to be disclosed to an accused person to whom they might be known. This difficulty was recognised by the Thomson Committee who stated their ultimate conclusion in para 27.07 as follows: 'While we have some sympathy with the view that the defence should be able to use previous convictions in the same way as the Crown, bearing in mind the general public interest, we are not persuaded that it is desirable that the previous convictions of witnesses should be disclosed to the accused person or his solicitor'."
Main -v- Andrew Wormald Ltd; 1988
Wilson -v- Dunbar Bank plc 1988 SLT 93
1988
OHCS
Lord Mayfield
Scotland, Company Casemap

An agreement to the insertion of book values in a balance sheet prepared during the continuance of the partnership did not bind the deceased partner if that balance sheet fell to be used for the purpose of the ascertainment his share in the partnership at his death.
Wimpey Construction (UK) Ltd -v- Martin Black & Co (Wire Ropes) Ltd; 1988
McAndrew -v- Prestwick Circuits Ltd; EAT 1988
Litster and Others -v- Forth Dry Dock and Engineering Co Ltd; SCS 1988
AGL and EDB -v- H M Advocate 1988 SCCR 62
1988

Scotland, Criminal Practice
1 Citers
Black -v- Forsey 1988 SC (HL) 28
20 May 1988
HL
Health, Scotland Casemap
1 Citers
The common law was called in aid to supplement the statutory power of compulsory detention to fill a lacuna which had appeared in the 1984 Act. Held: The common law could not be invoked for that purpose, because the powers of detention conferred upon hospital authorities under the 1984 Act were intended to be exhaustive. The plaintiff mental patient, who had originally been detained under section 26 had then been unlawfully detained when on the expiry of that admission order, the hospital purported to detain him under a further section 26 order notwithstanding that the Act specifically prohibited successive periods of detention under section 26.
Mental Health (Scotland) Act 1984
Campins-Coll Petitioner [1988] ScotCS CSOH_1
29 Jun 1988
SCS
Scotland
Link[s] omitted
Hinton & Higgs (Uk) Ltd -v- Murphy [1988] ScotCS CSOH_2
15 Jul 1988
SCS
Scotland
Link[s] omitted
Kennedy -v- Macdonald Unreported, 14 November 1988; 1988 GWD 40-1653
14 Nov 1988

Sheriff Principal Caplan
Scotland, Land

Activities which are reasonably incidental to the enjoyment of a right of access over land may be incorporated in the right.
S -v- HM Advocate 1989 SLT 469
1989
HCJ
Lord Emslie
Scotland, Crime Casemap
1 Citers
Rape is regarded as an aggravated assault, of which the achievement of sexual intercourse is the worst aggravating feature.
Hatherley -v- Smith [1989] SLT 316
1989

Scotland Casemap

Greater Glasgow Health Board -v- Mackay [1989] SLT 729
1989
SCS
Lord Wylie
Scotland, Employment Casemap
1 Cites

The Court was asked to consider whether an employee, who wrote out a letter of resignation, had actually resigned in the light of the special state of anxiety of the employee when he wrote that letter. Held: Lord Wylie said: "where possible exceptions to a general rule are suggested in obiter dicta such as that used in the case of Sothern, there may be a tendency for tribunals to apply the exception to the rule rather than the rule itself and I wish to emphasise that only in highly exceptional circumstances will this be justified."
Russell's Executor -v- Balden 1989 SLT 177
1989

Wills and probate, Scotland

Brookfield Developments Ltd -v- The Keeper of the Registers of Scotland; 1989
McGeown -v- HM Advocate [1989] CLY 4029
1989

Scotland, Criminal Practice Casemap
1 Citers
British Medical Association -v- Greater Glasgow Health Board 1989 SC 65; 1989 SC HL 60
1989
HL
Lord Jauncey
Scotland, Administrative Casemap


The House considered the availability of orders against the Crown in Scotland. It is inconceivable that Parliament should have intended to fetter the right of the subject to obtain a prohibitory order more strictly in Scotland than in England. The general purpose of the Act was "to make it easier rather than more difficult for a subject to sue the Crown",
Crown Proceedings Act 1947 21
Safeway Food Stores Ltd -v- Scottish Provident Institution 1989 SLT 131
1989

Scotland, Administrative Casemap

Gallemos (In Receivership) Ltd -v- Barratt Falkirk Ltd 1989 SC 248
1989

Contract, Scotland Casemap

Alvis -v- Harrison; HL 1989
Regina -v- Mackenzie 1989 SLT 121
1989
HCJ
Lord Justice General Emslie
Crime, Scotland
1 Citers
Misiuse of Drugs Act 1971 28(2)
Tehrani -v- Argyll and Clyde Health Board 1989 SC 342
1989

Scotland, Health Professions Casemap
1 Citers
Stephen -v- Scottish Boatowners Mutual Insurance Association 1989 SC (HL) 24
1989
HL
Scotland, Personal Injury Casemap
1 Citers
Casey -v- Edinburgh Airport Ltd; SCS 23-Feb-1989
Roberts -v- Hamilton [1989] ScotHC HCJ_1
10 Mar 1989
HCJ
Scotland, Crime
Link[s] omitted
Litster and Others -v- Forth Dry Dock and Engineering Co Ltd; HL 16-Mar-1989
Tehrani -v- Argyll and Clyde Health Board (No.2) [1989] ScotCS CSIH_1
30 Jun 1989
SCS
Scotland
Link[s] omitted
Lord Advocate -v- Scotsman Publications [1989] UKHL 7; 1989 SLT 705; [1989] 2 All ER 852; 1989 SC (HL) 122; [1989] 1 FSR 580; [1989] 3 WLR 358; [1990] 1 AC 812
6 Jul 1989
HL
Scotland, Media
An interdict was sought to prevent the distribution of a book on the intelligence services.
[ Bailii ]
Ford -v- Guild [1989] ScotHC HCJ_2
18 Oct 1989
HCJ
Scotland, Crime
[ Bailii ]
Scott Lithgow Ltd -v- Gec Electrical Projects Ltd [1989] ScotCS CSOH_3
14 Nov 1989
SCS
Scotland
Link[s] omitted
Findlater -v- Maan [1989] ScotCS CSIH_2
30 Nov 1989
SCS
Scotland
Link[s] omitted