Category: Scotland

Gordon, Marquess of Aberdeen and Temair v Messrs Turcan Connell: SCS 23 Dec 2008

The pursuer sought damages in professional negligence saying that the defender solicitors had failed to advise them properly in the management of the family trusts so as to minimise the liability to tax.

Judges:

Lady Smith

Citations:

[2008] ScotCS CSOH – 183

Links:

Bailii

Scotland, Professional Negligence

Updated: 22 July 2022; Ref: scu.279820

James B Fraser and Co Ltd v Denny, Mott and Dickson Ltd: HL 19 May 1944

The House was asked whether a contract, entered into before the war, has been brought to a premature conclusion by war regulations which render illegal, and therefore prevent, the due performance of some of the obligations or the due enjoyment of some of the rights under the contract.

Citations:

[1944] UKHL 3, 1945 SLT 2, [1944] AC 265, 1944 SC (HL) 35

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Bank Line Ltd v Arthur Capel and Co HL 12-Dec-1918
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 22 July 2022; Ref: scu.279703

Comex Houlder Diving Ltd v Colne Fishing Co Ltd: HL 19 Mar 1987

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’.

Judges:

Lord Mackay of Clashfern

Citations:

[1987] UKHL 19, 1987 SLT 443, SC (HL) 85

Links:

Bailii

Statutes:

Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 3(2)

Jurisdiction:

Scotland

Cited by:

Cited – Farstad Supply As v Enviroco Ltd SC 5-May-2010
The defendants (E) were liable to F after a serious offshore accident, but sought a contribution from a third party (A), the main charterers, seeking to rely on section 3(2) o the 1940 Act saying that ‘if sued they might have been liable’. The court . .
Lists of cited by and citing cases may be incomplete.

Negligence, Contract

Updated: 22 July 2022; Ref: scu.279756

Maloco v Littlewoods; Smith v Litlewoods: HL 5 Feb 1987

The pursuer sought damages after his cafe was burned in a fire which started in a neighbouring insecure abandoned building owned by the defenders.
Held: The defendant was held not liable to adjoining occupiers for a fire started by vandals in its disused premises. The question was whether or not the occurrence of such behaviour was reasonably foreseeable, and that on the facts of the case it was not.
Lord Goff of Chievely said: ‘if this proposition is understood as relating to a general duty take reasonable care not to cause damage to premises in the neighbourhood . . then it is unexceptionable. But it must not be overlooked that a problem arises when the pursuer is seeking to hold the defender responsible for having failed to prevent a third party from causing damage to the pursuer or his property by the third party’s own deliberate wrongdoing. In such a case, it is not possible to invoke a general duty of care; for it is well recognized that there is no general duty of care to prevent third parties from causing such damage.’
Lord Mackay of Clashfern said that the more unpredictable the behaviour in question, the higher the degree of probability of such behaviour occurring would be necessary to find that such loss was reasonably foreseeable.

Judges:

Lord Goff of Chievely, Lord Mackay of Clashfern, Lord Rodger,

Citations:

[1987] UKHL 18, 1987 SCLR 489, [1987] 2 WLR 480, 1987 SLT 425, 1987 SC (HL) 37, [1987] 1 All ER 710, (1987) 84 LSG 905, [1987] AC 241

Links:

Bailii

Jurisdiction:

Scotland

Negligence

Updated: 22 July 2022; Ref: scu.279755

Anderson v Lambie: HL 25 Jan 1954

As the result of a mistake, a disposition of property conveyed the entirety of an estate which consisted mainly of a farm, but also included other property. The preceding missives of sale were capable of more than one meaning as to the extent of the subjects to be conveyed. The evidence established that the missives had themselves been preceded by an oral agreement for the sale of the farm alone.
Held: The appeal succeeded and the decision of the First Division reversed. Such problems with this type of mistake in expression could not be resolved by construing the document as it stood, unlike a mistake in expression which was obvious on the face of the document. Neither was this a situation where an agreement was vitiated by error: ‘in the present case the error only arose after the parties had reached agreement’. There must nevertheless be a remedy.
However, it was incompetent under Scots law for a defectively expressed document to be corrected by the court so as to give effect to the true agreement between the parties.
Lord Keith of Avonholm said that reduction was available in the event of a conveyance or contract ‘being expressed as regards essentials in different terms from what the parties really intended and had agreed between them’.
As to the remedy of reduction, Lord Reid said: ‘But, when it is sought to reduce a deed, it is necessary to go behind the deed and discover the real facts. The fact that the parties agreed to the missives is important evidence but it is not the only competent evidence. The question is not what the missives mean: if that were the question, the ordinary rule would apply that the meaning of a document must be found from its terms. The question is whether the real facts are such that the disposition must be reduced, and the existence of the missives does not alter the nature of the inquiry.’

Judges:

Lord Reid, Lord Keith of Avonholm

Citations:

[1954] UKHL 3, [1954] 1 WLR 303, [1954] 3 All ER 157 (Note), 1954 SLT (Notes) 22, 1954 SLT 73, 1954 SC (HL) 43

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Krupp v John Menzies Ltd SCS 16-May-1907
kruppSCS1907
The court considered whether there had been an error in the contract and how it should be dealt with. Lord President Dunedin said: ‘it is a very delicate matter to interfere with a written contract expressed in clear terms, and that parole proof . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land, Litigation Practice, Contract

Updated: 22 July 2022; Ref: scu.279713

Bermingham v Sher Bros: HL 31 Jan 1980

The claimant sued as widow and administratix of her deceased firefighter’s estate. He had died a fire in a building occupied by the respondent.
Held: Her appeal failed: ‘the respondents, as occupier of those premises, owed no duty to firemen such as the appellant’s deceased husband who entered the premises for the purpose of fighting a fire there, to provide them with a means of access and egress which would remain safe during the fire.’

Citations:

[1980] UKHL 16, 1980 SLT 122, 1980 SC (HL) 67

Links:

Bailii

Statutes:

Occupiers’ Liability (Scotland) Act 1960 2(10

Jurisdiction:

Scotland

Land

Updated: 22 July 2022; Ref: scu.279744

RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council: HL 24 Jan 1985

The pursuers sought damages after the defender’s sewer collapsed, flooding their bakery.
Held: The local authority’s appeal succeeded. It was not liable. The duty of the local authority under section 2 of the Act of 1968 was not an ‘absolute duty’ as averred by RHM and that RHM’s averments of breach of statutory duty were therefore irrelevant.

Citations:

[1985] UKHL 9

Links:

Bailii

Statutes:

Sewerage (Scotland) Act 1968

Jurisdiction:

Scotland

Nuisance, Utilities

Updated: 22 July 2022; Ref: scu.279753

McCluskey v Wallace: SCS 14 May 1998

A child aged 10 had crossed the road without taking reasonable care to check whether traffic was coming. She was struck by a driver who was driving at an appropriate speed but had failed to notice her, and could have avoided her if he had been paying proper attention.
Held: The assessment of the child’s contributory negligence at 20% was upheld.

Judges:

Lord Justice-Clerk (Cullen), Lord McCluskey and Lord Murray

Citations:

[1998] ScotCS CSIH – 120, 1998 SLT 1357, 1998 Rep LR 86, 1998 SC 711, [1998] CSIH 120, 1998 GWD 20-1005

Links:

Bailii

Statutes:

Law Reform (Contributory Negligence) Act 1945

Cited by:

Cited – Jackson v Murray and Another SC 18-Feb-2015
Child not entirely free of responsibility
The claimant child, left a school bus and stepped out from behind it into the path of the respondent’s car. She appealed against a finding of 70% contributory negligence.
Held: Her appeal succeeded (Majority, Lord Hodge and Lord Wilson . .
Lists of cited by and citing cases may be incomplete.

Scotland, Personal Injury, Negligence

Updated: 22 July 2022; Ref: scu.279594

Cantiere San Rocco Sa v Clyde Shipbuilding and Engineering Co: HL 25 Jul 1923

Whether contract abrogated by the outbreak of war.Held: The buyer was entitled to repetition of the instalment of the price that was paid on signature of the contract as, owing to the war, further performance of the contract had become impossible.
Lord Dunedin explained that the remedy for frustration of the contract was given ‘not under the contract or because of breach of the contract inferring damages, but in respect of the equitable (of course I am not using the words in the technical English sense) doctrine of condictio causa data causa non secuta.’
The Earl of Birkenhead analysed the Roman law which had influenced the Scots law of unjustified enrichment, saying: ‘The underlying principle of the Condictio was that a person had received from another some property, and that, by reason of circumstances existing at the time or arising afterwards, it was or became contrary to honesty and fair dealing for the recipient to retain it.’

Judges:

Earl of Birkenhead, Lord Dunedin

Citations:

[1923] UKHL 1, 1923 SC (HL) 105, (1923) 16 Ll L Rep 327, [1924] AC 226

Links:

Bailii

Scotland, Contract

Updated: 22 July 2022; Ref: scu.279684

Boyd and Forrest v GWSR Co: HL 16 May 1912

The parties had contracted for the construction of an embankment to support a railway track. The pursuers now said that they had been induced to enter the contract by means of fraudulent misrepresentation as to the results of borings at the site. The Court was now asked whether the fraud had been proved.
Held: The appeal succeeded. The fraud had not been made out: ‘so far from not knowing or caring whether the statements contained in the journal were true or false, he was, anxious to state the truth, and took such means as he honestly considered sufficient for the very purpose of ascertaining what the truth was so that he might set it forth with accuracy.’

Judges:

Lord Atkinson

Citations:

[1912] UKHL 5, 1912 SC (HL) 93, 1912 1 SLT 476

Links:

Bailii

Cited by:

At HL – Boyd and Forrest v GWSR Co SCS 7-Mar-1914
The pursuers’ case is that they were led to enter into a contract with the defenders to execute certain works of construction of a railway for a lump sum, and that they were led to tender to do the work for a certain price, by the other party, the . .
At HL (1) – Boyd and Forrest v Glasgow and South-Western Railway Co HL 11-Jan-1915
The issuing of an instruction was not a condition precedent to entitlement to payment in a construction contract. . .
Lists of cited by and citing cases may be incomplete.

Contract, Scotland, Torts – Other

Updated: 22 July 2022; Ref: scu.279665

West v Secretary of State for Scotland: SCS 23 Apr 1992

The petitioner complained that on being moved from his employment at one prison to another, he had been told that his moving expenses would be paid, but that they were not. The respondent said that the terms of his employment were that he was to be mobile, and that as a Crown employee his terms of employment were variable at the instance of the crown.
Held: Wherever there is an excess or abuse of the power or jurisdiction which has been conferred on a decision-maker, the Court of Session has the power to correct it.

Judges:

Lord Weir

Citations:

[1992] ScotCS CSIH – 3, 1992 SCLR 504, 1992 SLT 636, 1992 SC 385

Links:

Bailii

Cited by:

Cited – EBA v Advocate General for Scotland SC 21-Jun-2011
The appellant had sought to challenge refusal of disability living allowance. Ultimately her request a judicial review of the Upper Tribunal’s decion was rejected on the basis that the UT, being a court of superior record, was not susceptible to . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.

Scotland, Employment

Updated: 22 July 2022; Ref: scu.279559

Sloan v B: SCS 12 Jun 1991

Lord President Hope, delivering the opinion of the court, explained that it is by an application of the same principle that it has long been recognised that proceedings in open court may be reported in the press and by other methods of broadcasting in the media: ‘There is no doubt that as a general rule the proceedings of a court are open to the public, and thus to public scrutiny, at all times. Exceptions have to be made in special circumstances to allow the court to conduct its proceedings behind closed doors where the interests of justice require this to be done. But that is always the exception, and the general principle which applies equally in the sheriff court as it does in the Court of Session is that the court sits both for the hearing of cases and for the advising of them with open doors.’

Judges:

Lord President Hope

Citations:

[1991] ScotCS CSIH – 4, 1991 SLT 530, 1991 SC 412

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Richardson v Wilson SCS 1879
Lord President Inglis discussed the principle that the reporting of court cases had to be open: ‘The principle on which this rule is founded seems to be that, as courts of justice are open to the public, anything that takes place before a judge or . .

Cited by:

Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Lists of cited by and citing cases may be incomplete.

Media

Updated: 22 July 2022; Ref: scu.279554

Morgan Guaranty v Lothian Regional Council: SCS 1 Dec 1994

Judges:

Lord President (Hope), Lord Mayfield, Lord Clyde, Lord Cullen and Lord Kirkwood

Citations:

1995 SLT 299, 1995 SCLR 225, [1994] ScotCS CSIH – 3, 1995 SC 151

Links:

Bailii

Cited by:

Cited – Test Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 22 July 2022; Ref: scu.279577

Bluebell Apparel Ltd v Dickinson: SCS 14 Oct 1977

The former employee challenged a restriction on his post employment career.
Held: The restriction was world-wide and as such tooo wide, and unenforceable.

Judges:

Lord Ross

Citations:

[1977] ScotCS CSIH – 4, 1978 SC 16, 1980 SLT 157

Links:

Bailii

Citing:

Cited – Haynes v Doman CA 1899
A former servant entered into new employment carrying with him the trade secrets, with the constant risk of divulging them to rival manufacturers. The position of the expert witness was challenged.
Held: An expert witness may not give evidence . .
Cited – Vandervall Products Ltd v M’Leod CA 1957
Lord Evershed MR said that it is very rare to find an ex-employee restrained from exercising his trade in a competing business anywhere in the world. . .
Cited – Commercial Plastics Ltd v Vincent CA 1964
When considering whether an employer could misuse information learned in one employment in a later one the court thought that the defendant would be likely, when the need arose, to dredge up from the recesses of his memory’ the particular item of . .
Cited – Printers and Finishers Limited v Holloway 1965
The court considered the questions arising from the use of information acquired by an employee during his employment after that employment had ended, and noted that information the future use of which will not be restrained is information not . .
Lists of cited by and citing cases may be incomplete.

Scotland, Employment

Updated: 22 July 2022; Ref: scu.279503

Alexander Stephen (Forth) Ltd v J J Riley (UK) Ltd: SCS 2 Mar 1976

‘The main submission for the defenders was that the pursuers could not rely on Condition 5 to avoid liability for breaches of contract because the particular circumstances averred by the defenders as justifying their actions were not expressly covered by the condition. It was said that as the defenders averred that the pursuers’ failure in performance involved something wholly different from what the contract contemplated this was a situation not expressly covered by Condition 5 and therefore it could not be invoked.’

Judges:

Lord Kincraig

Citations:

[1976] ScotCS CSOH – 4, 1976 SLT 269, 1976 SC 151

Links:

Bailii

Scotland, Contract

Updated: 22 July 2022; Ref: scu.279497

Honeyman’s Executors v Sharp: scs 14 Mar 1978

The action concludes for declarator that a purported gift by the deceased to the defender of four valuable paintings by the French artist Boudin falls to be reduced and for certain consequential relief. Though the word ‘undue’ is not used in the pursuers’ pleas-in-law, the action is in substance laid on the principle usually described as ‘undue influence.’

Judges:

Lord Maxwell

Citations:

1978 SC 223, [1978] ScotCS CSOH – 4, 1979 SLT 177

Links:

Bailii

Scotland, Undue Influence

Updated: 22 July 2022; Ref: scu.279506

M’Elroy v M’Allister: SCS 4 Nov 1948

The court rejected the renvoi doctrine in tort. An act done in a foreign country was actionable in Scotland only if it was, if done in Scotland, a tort, and was also actionable according to the law of the place in which it was done.

Citations:

[1948] ScotCS CSIH – 4, 1949 SC 110, 1949 SLT 139

Links:

Bailii

Cited by:

Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Lists of cited by and citing cases may be incomplete.

Scotland, Torts – Other, International

Updated: 22 July 2022; Ref: scu.279401

Drummond’s Judicial Factor v LA: SCS 9 May 1944

There is no presumption as to survivorship in a common calamity

Judges:

Lord Justice Clerk Cooper

Citations:

[1944] ScotCS CSIH – 1

Links:

Bailii

Citing:

Cited – Wing v Angrave, Tulley, And Others 29-Feb-1860
Lord Chelmsford said: ‘Had it occurred to her mind that a highly improbable state of facts might arise, either of their both perishing together or of its being impossible to ascertain which was the survivor, no doubt she would have used apt words to . .
Lists of cited by and citing cases may be incomplete.

Scotland, Wills and Probate

Updated: 22 July 2022; Ref: scu.279390

Taylor v Glasgow Corporation: SCS 23 Jul 1952

The defender sought to rely on a disclaimer for responsibilitrty for personal injury of users of its bathhouse. The disclaimer was printed on the reverse of the ticket, and the pursuer was aregular user. She said that, by the negligence of defenders’ bath attendants allowed to fall down an interior stair and suffer serious injury.
Held: Her appeal failed: ‘the Sheriff was right to regard this ‘ticket’ as in substance a voucher. If so, the pursuer could not be reasonably expected to study it for conditions, and it follows that in the absence of some other method of calling her attention to its ‘conditional’ function the defenders cannot be said to have done what was reasonably sufficient to give the pursuer notice of the condition.’

Citations:

[1952] ScotCS CSIH – 1, 1952 SLT 399, 1952 SC 440

Links:

Bailii

Scotland, Personal Injury, Contract

Updated: 22 July 2022; Ref: scu.279422

Exchange Telegraph v Giulanotti: SCS 19 Nov 1958

The company supplied racing information to bookmakers by private telephone lines. They asserted that the defender had breached its contract by relaying the information to its branch offices without the payment of the agreed additional licence fees, and terminated the contract

Citations:

[1958] ScotCS CSOH – 7

Links:

Bailii

Scotland, Contract

Updated: 22 July 2022; Ref: scu.279454

Angus v National Coal Board: SCS 9 Feb 1955

The worker had been driving his tractor, when the ground underneath him collapsed through coal workings. He died when it fell on him. There were old but themselves secure workings near the surface, but subsequent deeper workings had undermined those near the surface.
Held: The action was dismissed. The case had been pleaded in negligence alone. No plea had been raised for lack of support of the land.

Judges:

Lord Strachan

Citations:

[1955] ScotCS CSIH – 1, 1955 SLT 245

Links:

Bailii

Statutes:

Coal Industry Nationalisation Act 1946 48(1)(a)

Scotland, Personal Injury, Negligence

Updated: 22 July 2022; Ref: scu.279435

McDonald v Burns: SCS 29 Mar 1940

Judges:

Lord Justice-Clerk Aitchison

Citations:

1940 SLT 325, 1940 SC 376, [1940] ScotCS CSIH – 3

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 21 July 2022; Ref: scu.279382

Government of the Republic of Spain v National Bank of Scotland: SCS 24 Feb 1939

Lord Justice-Clerk Aitchison considered a provision claiming extra territorial effect, and said: ‘such ‘decrees’ of a foreign country as purport to have extra-territorial effect, and to attach property in a subject situated, and at a time when it is situated, within this country or its territorial waters, will not be recognised by our laws and courts.’

Judges:

Lord Justice-Clerk Aitchison

Citations:

[1939] ScotCS CSIH – 1, 1939 SLT 317, 1939 SC 413, (1939) 63 Ll L Rep 330

Links:

Bailii

Cited by:

Cited – Perry and Others v Serious Organised Crime Agency SC 25-Jul-2012
The first appellant had been convicted of substantial frauds in Israel. He appealed against world wide asset freezing (PFO) and disclosure (DO) orders made against him. Neither the appellant, nor his offences were connected with the UK. A bank . .
Lists of cited by and citing cases may be incomplete.

Scotland, Transport

Updated: 21 July 2022; Ref: scu.279373

Mackeson v Boyd: SCS 7 Nov 1941

The pursuer had taken a lease of a furnished country residence but came to be able to occupy a small part of the property, after the main residence was requisitioned for the war effort.
Held: Speedie’s casedid apply, and: ‘ the tests to be applied in deciding whether there has been total or partial eviction from subjects leased are the same in the case of eviction by the action of the executive as in the case of eviction resulting from rei interitus.’

Judges:

Lord Patrick

Citations:

1942 SC 56, 1942 SLT 106, [1941] ScotCS CSIH – 4

Links:

Bailii

Citing:

Applied – Tay Salmon Fisheries Co Ltd v Speedie SCS 31-May-1929
The pursuers sought to assert a right to abandon a lease of a salmon fishery at Tents Moor. A danger zone had been created by the Air Council which included the area comprised, and it had become impossible for anyone to use the land.
Held: Two . .
Lists of cited by and citing cases may be incomplete.

Scotland, Landlord and Tenant

Updated: 21 July 2022; Ref: scu.279379

Don v Lippmann: HL 1837

An action was brought in Scotland in 1829 on two French bills of exchange accepted in 1810.
Held: The defendant was able to rely on the Scottish 6 year period of prescription because: ‘Whatever relates to the remedy to be enforced, must be determined by the lex fori, the law of the country to the tribunals of which appeal is made.’

Judges:

Lord Brougham

Citations:

(1837) 5 Cl and F 1

Jurisdiction:

Scotland

Citing:

Cited – De la Vega v Vianna 1830
The plaintiff, a Spaniard, had the Portuguese defendant, arrested in England for non-payment of a debt contracted in Portugal. The defendant claimed to be released on the ground that in Portugal imprisonment for debt had been abolished in 1774.

Cited by:

Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 21 July 2022; Ref: scu.242982

His Majesty’s Advocate v Earl of Home: HL 7 Mar 1759

Patronage – Prescription – Possession – Competition of Right to Present.-
Held the right of patronage reverted back to the Crown by 40 years’ possession of the right of presenting, although an ancient right existed in a subject on which no possession had followed.

Citations:

[1759] UKHL 2 – Paton – 25

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 21 July 2022; Ref: scu.558280

John Robertson of Goodlyburn, A Pauper v George Earl of Kinnoul: HL 5 Jul 1721

Process. – Act and Commission – A pursuer opposes the granting an act and commission for examining the defender, a peer in London, in a matter referred to his oath, on the ground that he being old and poor, could not follow the examination: but the commission is granted notwithstanding.
Trust – A person executes an absolute surrender of his feu, in favour of his superior’s son, but alleging qualifications of trust in a separate verbal agreement, the superior swears that he remembered no term of depositation, and the son, the grantee, swears, that he personally gave no consideration for the deed, and that it was not delivered to him, but that every thing was transacted by his father; and he never heard of any conditions or trust: it is found that the depositions did not support the allegations of trust.

Citations:

[1721] UKHL Robertson – 394, (1721) Robertson 394

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 21 July 2022; Ref: scu.553676

Mrs Mearns and Mrs Grant (Both Farquharsons, and Their Husbands) v James Farquharson, Esq, and Others, Trustees of James Farquharson of Inverey, Deceased, for Behoof of Alexander Farquharson: HL 20 Feb 1759

Destination – General Clause – Settlement. –
A party executed a general conveyance of all lands and heritages that should happen to belong to him at his death. The estate of Auchlossen belonged to him at the time he executed this settlement. He afterwards succeeded to the estates of Inverey and Tulloch, which had belonged to his brother, and the question was, Whether the heirs whatsoever under the above settlement, had a right to the Inverey and Tulloch estates. Held that they had not. Affirmed.

Citations:

[1759] UKHL 6 – Paton – 724

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 21 July 2022; Ref: scu.558276

Duke of Roxburgh v Jeffrey and Others, (Kelso Case): HL 18 Mar 1757

Burgh. – Dues and Customs- Servitude- Prescription.-
1st, Held though the merchants of Kelso could produce no charter or seal of cause, yet that they were a burgh of barony by the charter in favour of the Earl of Roxburgh erecting his lands and the town into a barony. But, 2 d, That their right of entering burgesses, andc., was subject to his regulation and control. 3 d, That they were not entitled to uplift the dues and customs, and their claim to have the past dues and customs applied to the common good of the burgh was prescribed. 4 th, That though they had immemorial possession of a right of bleaching skins, and drying and washing linen on the island of Ana, yet they had not acquired any servitude over it.

Citations:

[1757] UKHL 1 – Paton – 632

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 21 July 2022; Ref: scu.558238

Alexander Govan or Givan v Agnes Simpson or Govan: HL 26 Mar 1759

Possession on Adjudication – Redemption – Heritable Creditor – Assignation.
Held that though possession had followed on an adjudication, the legal of which was expired, but no infeftment had followed, that the right was still redeemable, and that when such preferable heritable creditor gets possession of the estate, over which his own and other securities extend, a second creditor, who offers payment of the preferable debt so secured, is entitled to come in his place, and demand an assignation to his debt: also held, that this doctrine applied to a widow who had her liferent jointure secured over the estate, and that she was in the eye of law a creditor, entitled to such an assignation on offering payment.

Citations:

[1759] UKHL 2 – Paton – 27

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 21 July 2022; Ref: scu.558278

Jean Craik and John Stewart Her Husband v Grizel Craik, Only Surviving Daughter of Adam Craik: HL 25 Mar 1757

Entail – Provision – Equity. –
An entail empowered the next heir to grant provisions to his younger children; but he conceiving that the entail so executed was in fraud of his father’s marriage-contract, which provided the fee of the estate to the heir of the marriage, disponed the estate in fee to his own daughter, and did not exercise the powers conferred of granting provisions. Held, on reduction of the son’s settlement, as in fraud of the entail, that when she was deprived of the benefit of her father’s settlement, equity will support that deed to the extent of a reasonable provision, although the powers of the entail in this respect had not been exercised.

Citations:

[1757] UKHL 1 – Paton – 643

Links:

Bailii

Jurisdiction:

Scotland

Equity

Updated: 21 July 2022; Ref: scu.558239

Thomas Drummond of Logie Almond v The Lord Advocate: HL 30 Apr 1751

A person being attainted by virtue of the act, which declared that if he did not surrender himself before the 12 July following, he should stand attainted of treason from the 18 April preceding;-it was found that the forfeiture did not operate retro to the effect of incapacitating him to succeed to property in the interval.

Citations:

[1751] UKHL 1 – Paton – 503

Links:

Bailii

Jurisdiction:

Scotland

Crime

Updated: 21 July 2022; Ref: scu.558208

Farstad Supply As v Enviroco Ltd: SCS 20 Feb 2013

The pursuers sought damages arising from a fire on their oil rig. The principal damages had been agreed, but the parties disputed the calculation of interest, the defenders saying that interest was due only on elements quantifiable before the date of the decree, and that the current interest rate provided, of 8% was excessive and would return a profit rather than compensation for losses.

Judges:

Lord Eassie, Lord Mackay of Drumadoon, Lord Marnoch

Citations:

[2013] ScotCS CSIH – 9, 2013 SC 302, 2013 SLT 421, [2013] CSIH 9, 2013 GWD 9-194

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Farstad Supply As v Enviroco Ltd SCS 14-Sep-2011
(Outer House) The parties had settled a claim for the loss by fire of an oil rig supply vessel. The parties now disputed whether the settlement carries interest under the Act. The parties’ insurers were concerned that the interest rate awarded under . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 21 July 2022; Ref: scu.471060

TW and JW v Aberdeenshire Council: SCS 5 Apr 2012

(Extra Division) The court rejected an argument that sections 84(3) and (4) had a particular core status. It said that subsections (3), (4) and (5) impose separate requirements, all of which have a bearing on whether a permanence order should be made. Lord Bonomy, giving the opinion of the court, stated at para 13:
‘It is . . difficult to envisage circumstances in which a court, faced with an application for a permanence order, would not first of all address the factors that arise under subsection (5)(c), in this case paragraph (c)(ii), and any other matters arising under subsection (5), always bearing in mind the requirement of subsection (4) to regard the need to safeguard and promote the welfare of the child throughout childhood as the paramount consideration, and only then consider the application of the ‘no order principle’ in subsection (3), again keeping subsection (4) in mind.’

Judges:

Lord Bonomy

Citations:

2013 SC 108, 2012 GWD 14-284, 2012 Fam LR 91, [2012] ScotCS CSIH – 37

Links:

Bailii

Statutes:

Adoption and Children (Scotland) Act 2007

Jurisdiction:

Scotland

Cited by:

Cited – Re EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .
Cited – Re EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .
Lists of cited by and citing cases may be incomplete.

Adoption

Updated: 21 July 2022; Ref: scu.452662

Carmichael v Carmichael’s Exx: SCS 15 Jul 1919

Citations:

[1919] ScotCS CSIH – 2

Links:

Bailii

Cited by:

Appeal from – Carmichael v Carmichael’s Exx HL 30-Jul-1920
The pursuer had taken out an insurance policy and paid the premiums on his son’s life. He sought payment of the proceeds of the policy from his son’s estate asserting a jus quaesitum tertio. . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract

Updated: 21 July 2022; Ref: scu.279327

Cantiere San Rocco Sa v Clyde Shipbuilding and Engineering Co: SCS 20 Jul 1922

The pursuers maintained that, in consequence of the contract having become incapable of fulfilment, they were entitled to recover the money paid by them to the defenders in terms of the contract. The defenders contended that rights acquired under the contract cannot be disturbed by the termination of the contract owing to a cause for which neither is responsible, and that they were therefore entitled to retain the payment made to them.
Held: A buyer was entitled to repetition of the instalment of the price that was paid on signature of the contract as, owing to the war, further performance of the contract had become impossible. Lord Dunedin said that the remedy for frustration of the contract was given ‘not under the contract or because of breach of the contract inferring damages, but in respect of the equitable (of course I am not using the words in the technical English sense) doctrine of condictio causa data causa non secuta.’

Judges:

Lord Dunedin

Citations:

[1922] ScotCS CSIH – 3, 1922 SC 723, 1922 SLT 477

Links:

Bailii

Cited by:

Cited – Lloyds TSB Foundation for Scotland v Lloyds Banking Group Plc SC 23-Jan-2013
A predecessor bank had created a trust into which it paid a small proportion of its profits. The parties now disputed the calculation of profits when the Bank declared a loss which allowed for an unrealised gain on the acquisition of HBOS. . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract, Equity

Updated: 21 July 2022; Ref: scu.279331

Tay Salmon Fisheries Co Ltd v Speedie: SCS 31 May 1929

The pursuers sought to assert a right to abandon a lease of a salmon fishery at Tents Moor. A danger zone had been created by the Air Council which included the area comprised, and it had become impossible for anyone to use the land.
Held: Two grounds of judgment were put forward, eviction and rei interitus. Entire estates can be overblown with sand for centuries and so fall subject to the rei interitus doctrine of the civil law. There was not actual destruction, but there was constructive total destruction. The the law applicable to physical or actual rei interitus was extended to constructive total destruction.

Judges:

Lord President Clyde

Citations:

[1929] ScotCS CSIH – 4

Links:

Bailii

Cited by:

Applied – Mackeson v Boyd SCS 7-Nov-1941
The pursuer had taken a lease of a furnished country residence but came to be able to occupy a small part of the property, after the main residence was requisitioned for the war effort.
Held: Speedie’s casedid apply, and: ‘ the tests to be . .
Lists of cited by and citing cases may be incomplete.

Scotland, Landlord and Tenant

Updated: 21 July 2022; Ref: scu.279355