Category: Scotland

Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd: SCS 1992

(Inner House) When Cumbernauld town centre was built, a walkway was provided between the shopping centre and residential areas. It was used for many years, but then closed to prevent crime. The authority sought an interdict to keep it open as a public right of way. The court discussed the application of prescription to public rights of way. Lord President Hope said: ‘where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask that his inaction be ascribed to his good nature or to tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware of that fact so that they know that the route is being used by them only with his permission and not as of right.’ and ‘the occasional or irregular use of a path by hill walkers or by others who resort to the countryside can readily be distinguished from the continuous use of it by members of the public as a route from one public place to another. It seems to me to be clear, on an examination of all the later authorities, that a proprietor who allows a way over his land to be used by the public in the way the public would be expected to use it if there was a public right of way cannot claim that that use must be ascribed to tolerance, if he did nothing to limit or regulate that use at any time during the prescriptive period.’

Judges:

Lord President (Hope)

Citations:

1992 SLT 1035, [1992] CLY 6215, 1992 SC 357

Statutes:

Prescription and Limitation (Scotland) Act 1973 3(3)

Jurisdiction:

Scotland

Citing:

Appealed to – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .

Cited by:

Appeal from – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 15 July 2022; Ref: scu.187767

McKindless Group v McLaughlin: EAT 2 Apr 2008

EAT Unfair Dismissal: Automatically unfair reasons / Compensation
Automatically unfair dismissal. Uplift under section 31 of the Employment Act 2002. Whether or not reference/remit appropriate.

Judges:

Lady Smith

Citations:

[2008] UKEAT 0010 – 08 – 0204, [2008] IRLR 678

Links:

Bailii

Statutes:

Employment Act 2002 31

Cited by:

Cited – Drewett v Penfold EAT 7-Dec-2009
EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES:
IMPACT ON COMPENSATION
The Employment Tribunal took an irrelevant consideration into account when making an uplift under s31(3) of the Employment . .
Cited – Wardle v Credit Agricole Corporate and Investment Bank CA 11-May-2011
The claimant had been found to have been unlawfully dismissed and to have suffered nationality discrimination. Each party appealed against aspects of the compensatory award including the application of the statutory uplift, and the calculation of . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 15 July 2022; Ref: scu.267954

Inventec (Scotland) Corporation Ltd v Duffy: EAT 4 Oct 2007

EAT Unfair dismissal on account of selection for redundancy without application of any criteria. Tribunal refused to deduct the extent to which the claimant’s redundancy payment exceeded the basic award that would have been payable had the claimant not been made redundant. On appeal, Employment Appeal Tribunal held that Tribunal had erred. It had no choice; it had to make the deduction: s.123(7) of the Employment Rights Act 1996.

Judges:

Lady Smith

Citations:

[2007] UKEAT 0021 – 07 – 0410

Links:

Bailii

Statutes:

Employment Rights Act 1996 123(7)

Employment, Scotland

Updated: 14 July 2022; Ref: scu.266643

Ruddy v Rae, Chief Constable Strathclyde Police and Another: SCS 2 Mar 2011

The pursuer had been arrested under warrant. He complained that other officers in Strathclyde assualted him when iin custody. That complaint was rejected after investigation, and proceedings were refused either by way of criminal prosecution or disciplinary proceedings. He made a civil complaint saying that he had been denied his human right and that there had been no effective investigation. He now appealed against rejection of that complaint.
Held: The claim was incompetent.
Lord Clarke said: ‘Any practitioner in the business of civil litigation might, when faced with this omnibus approach to several claims in a single action, query the appropriateness of this approach. He or she might reflect that in a single sheriff court action a straightforward claim for damages for assault finds itself coupled with (a) a claim for breach of the substantive obligation under article 3 of the Convention and (b) claims against two defenders ‘severally’ for breaches of the obligation arising under the article as regards investigation and inquiry. One action is being brought against two separate defenders with three distinctive juristic bases of claim being made.’

Judges:

Lord Clarke (Opinion)

Citations:

[2011] ScotCS CSIH – 16, 2011 Rep LR 62, 2011 SLT 387, 2011 GWD 9-209, [2011] CSIH 16

Links:

Bailii

Statutes:

European Convention on Human Roghts 3

Jurisdiction:

Scotland

Cited by:

Appeal from – Ruddy v Chief Constable, Strathclyde Police and Another SC 28-Nov-2012
The pursuer said that he had been assaulted whilst in the custody of the responder’s officers. He began civil actions after his complaint was rejected. He repeated the allegation of the assault, and complained also as to the conduct of the . .
Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 13 July 2022; Ref: scu.430272

Re M (Minors): CA 17 Jan 1991

The appeal concerns an application to enforce in this jurisdiction an order for interim custody of three children made by the Scottish High Court under the provisions of the Family Law Act 1986.

Citations:

[1991] EWCA Civ 14, [1992] 1 FCR 201, [1992] 2 FLR 382

Links:

Bailii

Statutes:

Family Law Act 1986 29 30

Jurisdiction:

England and Wales

Children, Scotland

Updated: 12 July 2022; Ref: scu.262629

Saber v Secretary of State for the Home Department: HL 12 Dec 2007

The applicant sought asylum, saying that it would be unsafe to order his return. The issue before the House was as to when the need for protection should be assesed where, as here, there had been a series of appeals over time.
Held: The appeal was dismissed. ‘Common sense indicates that the final decision, whenever it is made, should be based on the most up to date evidence that is available. Facts which are of historical interest only do not provide a sound basis for a determination that an asylum seeker is entitled to protection now.’

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

Citations:

[2007] UKHL 57, [2008] 3 All ER 97, 2003 SLT 1409, (2008) 158 NLJ 30, 2008 SC (HL) 132, 2008 SCLR 151 171, (2008) 152(1) SJLB 22

Links:

Bailii

Statutes:

Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230) 32

Jurisdiction:

England and Wales

Cited by:

Cited – Mucelli v Government of Albania (Criminal Appeal From Her Majesty’s High Court of Justice) HL 21-Jan-2009
The House was asked whether someone who wished to appeal against an extradition order had an obligation also to serve his appellant’s notice on the respondent within the seven days limit, and whether the period was capable of extension by the court. . .
Lists of cited by and citing cases may be incomplete.

Immigration, Scotland

Updated: 12 July 2022; Ref: scu.262256

Assembly Solutions and Tools Ltd v Mitchell: SCS 7 Dec 2007

Citations:

[2007] ScotCS CSOH – 195

Links:

Bailii

Citing:

Cited – Office Angels Ltd v Rainer-Thomas CA 1991
Reasonability Test of Post Employment Restriction
The court re-stated the principles applicable in testing whether an employee’s restrictive covenant was reasonable: ‘The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee’s relevant legitimate . .
Lists of cited by and citing cases may be incomplete.

Scotland, Employment

Updated: 12 July 2022; Ref: scu.261924

Robertson and Another v Her Majesty’s Advocate: HCJ 7 Nov 2007

Gough, ‘the naked rambler’, argued that his desire to appear naked in court, an act which he characterised as a fundamental freedom, was not an act calculated to offend the authority and dignity of the court; in order for his naked appearance to constitute a contempt of court, it had to be established that it interfered with the due administration of justice, which he did not intend.
Held: The court gave examples of forms of contempt, including what were described as disciplinary matters of good order, such as taking photographs in court, citing Vincent D as an uncontroversial example at paragraph 32 of its decision, and the more serious ones where there was a direct challenge to the authority of the court and to the integrity of its proceedings, which included an attempt to pervert the course of justice.
Lord Gill, Lord Justice-Clerk said: ‘In each of the cases involving the complainer it is submitted that his conduct was not contemptuous. I do not agree. In my opinion, the appearance of anyone in court naked, whatever crimes that may constitute, is unquestionably a contempt. The court is entitled to enforce standards of decency and decorum in the dress and demeanour of those who appear before it, whether as witnesses, lawyers, jurors or accused. Conduct such as the complainer’s is not only indecorous. It can offend, upset or alarm those present. It can distract those engaged in the trial from the essential issues. It adds to the difficulties of the presiding judge or sheriff. In all of these ways it impairs the administration of justice.
It is fallacious, in my opinion, to suggest, as counsel for the complainer did, that the complainer had no mens rea because he sincerely believed that his conduct was not contemptuous. It is sufficient to establish mens rea that he intended to do that which, in the eyes of the law, constitutes contempt.’

Judges:

Lord Gill, Lord Justice-Clerk

Citations:

[2007] ScotHC HCJAC – 63

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – HM Solicitor General v Cox and Another QBD 27-May-2016
Applications for committal of the defendants for having taken photographs of court proceedings when their friend was being sentenced for murder and publishing them on Facebook. The SG urged that the offences had aggravating features taking the . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 12 July 2022; Ref: scu.261790

Patrick Campbell of Knapp, and Others, Burgesses and Inhabitants of The Burgh of Campbelton v John Hastie, Rector or Head-Master of The Grammar School of Campbelton: HL 14 Apr 1772

Public Office – Schoolmaster in Burgh – Appointment.- A schoolmaster, appointed by the Magistrates and Town Council of Campbelton, without any mention being made as to whether his office was for life or at pleasure: Held that it was a public office, and that he was liable to be dismissed for a just and reasonable cause, and that acts of cruel chastisement of the boys were a justifiable cause for his dismissal; reversing the judgment of the Court of Session

Citations:

[1772] UKHL 2 – Paton – 277, (1772) 2 Paton 277

Links:

Bailii

Jurisdiction:

Scotland

Employment

Updated: 12 July 2022; Ref: scu.561694

His Majesty’s Advocate, In Behalf of The Principal and Professor of The College of Glasgow v His Grace The Duke of Montrose, and Others: HL 15 Mar 1758

Teinds – Old Valuations Unratified.-
The Tithes of a parish were valued, but the decret of valuation was lost, and the only evidence was an old book, containing the valuation of the Subcommissioner of Teinds not ratified by the Chief Commissioners. Held it competent for the Teind Court, at the distance of 100 years, to ratify the report of the old valuation of the Subcommissioners.

Citations:

[1758] UKHL 2 – Paton – 15

Links:

Bailii

Jurisdiction:

England and Wales

Scotland

Updated: 12 July 2022; Ref: scu.558246

Major Arthur Forbes, Now Taking The Name of Maitland v William Gordon, Trustee of Katherine and Ann Maitland: HL 24 Mar 1760

Delivery of Deed – Prescription – Confusio – Bona Fide Consumption – Interest of Debt.-
Circumstances in which held, 1 st That debts acquired by a husband affecting his wife’s estate, do not prescribe during marriage; and that prescription does not run against these bonds during the minority of the person for whose behoof they were purchased. 2 nd, That a bond of provision granted by a brother to two sisters, in addition to their family provisions, was to be presumed in law delivered of its date, unless the contrary be proved, although it had not been delivered to them, and there was no clause dispensing with delivery. 3 d, That this bond of provision was onerous to the full extent. 4 th That the sums in said bonds were not deminished by the sisters having been alimented by their mother, while in family with her. 5 th, That the rents of the estate during Katherine’s possession were bona fide percepti et consumpti by her, and she not accountable therefor; But, 6 th, That she was not liable for behaviour as heir, but that the appellant was liable for principal and interest of the sister’s bonds, under the deduction of two-thirds of the annual rents, from their mother’s death to their brother’s death, in consideration of the aliment and necessaries furnished them by their brother.

Citations:

[1760] UKHL 2 – Paton – 43

Links:

Bailii

Jurisdiction:

England and Wales

Land, Family

Updated: 12 July 2022; Ref: scu.558284

Edward Maccullock v Janet Maccullock: HL 16 Jan 1759

Marriage.- Constitution.- Cohabitation in Foreign Parts.-
Held, where marriage was sought to be established by cohabitation, and habit and repute, that proof of cohabitation in the Isle of Man, where a different law prevails, did not constitute marriage in Scotland.

Citations:

[1759] UKHL 2 – Paton – 33

Links:

Bailii

Jurisdiction:

England and Wales

Scotland

Updated: 12 July 2022; Ref: scu.558272

Robert Blackwood of Petrevie v Henry Allan and Others: HL 23 Mar 1757

Inhibition.-
An inhibition sustained which was objected to as setting forth two separate debts by bond, in the narrative of the letters, while the will only referred to a bond without distinguishing which, the omission of the letter S in the word ‘bond’ being a clerical error.

Citations:

[1757] UKHL 1 – Paton – 640

Links:

Bailii

Jurisdiction:

Scotland

Scotland

Updated: 12 July 2022; Ref: scu.558242

John Stewart, Esq v Sir Kenneth Mackenzie, Bart: HL 20 Dec 1757

Entail – Debts – Provisions. –
(1) An entailed estate having been sold under an Act of Parliament, and this Act having been obtained by the fraudulent allegation of debt, which did not exist, the sale was set aside, and the entail held to be still a binding and subsisting entail, though the maker and the institute had concurred to put an end to it, before the Act had been obtained. (2) Held that two of the debts founded on were not true debts; but that Lady Anne’s bond of provision was a true debt, yet that no interest was chargeable against the estate on it, during Lord Royston’s possession, as during that possession he was bound to keep down the interest of the debt on the estate.

Citations:

[1757] UKHL 6 – Paton – 711

Links:

Bailii

Jurisdiction:

England and Wales

Scotland

Updated: 12 July 2022; Ref: scu.558243

Dineley v Lothian Health Board: SCS 29 Aug 2007

Opinion

Judges:

Lord Hodge

Citations:

[2007] ScotCS CSOH – 154

Links:

Bailii

Citing:

Cited – Hucks v Cole CA 1968
(Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward. She was suffering from septic spots on her skin though he knew them to contain organisms capable of leading to puerperal fever. Several . .
Lists of cited by and citing cases may be incomplete.

Scotland, Professional Negligence

Updated: 11 July 2022; Ref: scu.259074

Tonner and Another v Reiach and Hall: SCS 12 Jun 2007

In order to succeed in a minute asserting want of prosecution, the defender must show (i) that there had been both inordinate and inexcusable delay and (ii) that there was an ‘added element of unfairness . . specific to the particular factual context.’
A Scottish court can exercise its inherent jurisdiction in the case of an abuse of process by way of a procedural sanction such as dismissal without express parliamentary authority

Judges:

Lord Abernethy

Citations:

[2007] ScotCS CSIH – 48, 2008 SC 1

Links:

Bailii

Citing:

See Also – Tonner and Another v Reiach and Hall OHCS 5-Aug-2005
. .

Cited by:

Cited – Cameron and Another v Hughes Dowdall SCS 28-Oct-2008
The pursuer sought damages for negligence by his solicitors. They had sold their business, but the solicitors were said to have failed to include in their contracts clauses necessary for their protection. The defenders claimed that the action should . .
Cited – Davies and Another (T/A All Stars Nursery) v The Scottish Commission for The Regulation of Care SC 27-Feb-2013
The appellants ran a day care nursery regulated under the 2001 Act. The Commission, being concerned at the care provided, sought to revoke the registration in proceedings before the Sherriff’s Court. Before they were concluded, the Commission was . .
Lists of cited by and citing cases may be incomplete.

Scotland, Litigation Practice

Updated: 11 July 2022; Ref: scu.253423

Davie v Wastemaster Ltd: EAT 10 May 2007

EAT UNFAIR DISMISSAL – Automatically unfair reason
The claimant, who was dismissed for conduct reasons, was found to have been unfairly dismissed on account of the respondents’ failure to comply with the requirements of Part 1 of Schedule 2 to the Employment Act 2002. The tribunal found that if the proper procedures had been followed, the claimant would have been dismissed within three weeks in any event and that the basic award should be reduced by 90% in respect of the claimant’s own contribution to his dismissal. An appeal against the reduction of the basic award was dismissed but an appeal against the restriction of the compensatory award to a three week period was allowed on the basis that the tribunal had failed to follow the correct approach (see: Polkey v A E Dayton Services Ltd [1987] IRLR 503) and had made no findings in fact which entitled them so to restrict it. The case was remitted to the same tribunal for a rehearing restricted to the issue of amount of the compensatory award.

Judges:

Hon Lady Smith

Citations:

[2007] UKEAT 0058 – 06 – 1005, UKEATS/0058/06

Links:

Bailii, EAT

Employment, Scotland

Updated: 11 July 2022; Ref: scu.253160

DS v Her Majesty’s Advocate: PC 22 May 2007

An amendment to the 1995 Act placed restrictions on the questioning of the complainer in trials of persons charged with sexual offences. The defendant appealed, saying that the restrictions were incompatible with the right to a fair trial under article 6 of the Convention.
Held: The challenge failed. Where a defendant in a rape trial sought to bring in the complainant’s sexual history, the presumption should be that the defendant’s own record of sexual offences should also be put before the jury.

Judges:

Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2007] UKPC D1, Times 12-Jun-2007, 2007 SCCR 222, 24 BHRC 412, [2007] HRLR 28, 2007 SLT 1026, 007 SC (PC) 1

Links:

Bailii

Statutes:

Sexual Offences (Procedure and Evidence) (Scotland) Act 2002, European Convention on Human Rights 6, Scotland Act 1998, nal Procedure (Scotland) Act 1995

Cited by:

Cited – ANS and Another v ML SC 11-Jul-2012
The mother opposed adoption proceedings, and argued that the provision in the 2007 Act, allowing a court to dispense with her consent, infringed her rights under Article 8 and was therefore made outwith the powers of the Scottish Parliament.
Cited – Imperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
Cited – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
Lists of cited by and citing cases may be incomplete.

Scotland, Crime, Human Rights, Constitutional

Updated: 11 July 2022; Ref: scu.252558

McGraddie v McGraddie and Another: SCS 13 Mar 2012

The defender appealed against rejection of his assertion that monies paid to him by his father was by way of gift.
Held: His appeal succeeded. The Lord Ordinary’s conclusions were ‘plainly wrong’ when he stated that he did not find any of the other evidence materially to undermine the specifics of the pursuer’s account or his evidence more generally. On that basis, they concluded that they were entitled to overturn his decision and to substitute their own decision.

Judges:

Lady Paton

Citations:

[2012] ScotCS CSIH – 23, [2012] CSIH 23

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – McGraddie v McGraddie and Another SCS 3-Nov-2009
The parties, father and his and and his wife, disputed whether advances of money had been by way of a gift from the father or otherwise, and accordingly whether property purchased in the son’s own name was to be transferred to the father.
See Also – McGraddie v McGraddie and Another SCS 7-May-2010
Consequential opinion as to remedies. . .

Cited by:

See Also – McGraddie v McGraddie and Another SCS 13-Mar-2012
. .
See Also – McGraddie v McGraddie and Another (Scotland : Costs) SC 28-Jan-2015
The parties, father and son had fallen out. The father said that a property purhased by the son with money provided by the father, was held in trust for the father. The Court had rejected the argument of the son that this had been a gift. The . .
Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Lists of cited by and citing cases may be incomplete.

Trusts, Contract

Updated: 10 July 2022; Ref: scu.460275

McGraddie v McGraddie and Another: SCS 7 May 2010

Consequential opinion as to remedies.

Citations:

[2010] ScotCS CSOH – 60, [2010] CSOH 60

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – McGraddie v McGraddie and Another SCS 3-Nov-2009
The parties, father and his and and his wife, disputed whether advances of money had been by way of a gift from the father or otherwise, and accordingly whether property purchased in the son’s own name was to be transferred to the father.

Cited by:

See Also – McGraddie v McGraddie and Another SCS 13-Mar-2012
The defender appealed against rejection of his assertion that monies paid to him by his father was by way of gift.
Held: His appeal succeeded. The Lord Ordinary’s conclusions were ‘plainly wrong’ when he stated that he did not find any of the . .
See Also – McGraddie v McGraddie and Another SCS 13-Mar-2012
. .
See Also – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 10 July 2022; Ref: scu.414919

McGraddie v McGraddie and Another: SCS 3 Nov 2009

The parties, father and his and and his wife, disputed whether advances of money had been by way of a gift from the father or otherwise, and accordingly whether property purchased in the son’s own name was to be transferred to the father.
Held: The the pursuer was ‘a confident witness, capable of being firm and even robust in the face of cross-examination’, and that ‘there was an energy in his responses that had an air of conviction about it’. He acknowledged that the pursuer’s evidence ‘lacked much in the way of specifics or circumstantial detail’ in relation to the second transaction and that he had forgotten some matters. As to the defender: ‘The content of the first defender’s evidence and the manner in which he gave it raised sharp questions as to whether he was a witness in whom the court could have confidence.’ He was not a witness upon whom he coud rely.

Judges:

Lord Ordinary, Lord Brodie

Citations:

[2009] ScotCS CSOH – 142, [2009] CSOH 142

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

See Also – McGraddie v McGraddie and Another SCS 7-May-2010
Consequential opinion as to remedies. . .
See Also – McGraddie v McGraddie and Another SCS 13-Mar-2012
The defender appealed against rejection of his assertion that monies paid to him by his father was by way of gift.
Held: His appeal succeeded. The Lord Ordinary’s conclusions were ‘plainly wrong’ when he stated that he did not find any of the . .
See Also – McGraddie v McGraddie and Another SCS 13-Mar-2012
. .
See Also – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Lists of cited by and citing cases may be incomplete.

Trusts, Litigation Practice

Updated: 10 July 2022; Ref: scu.377366

The State Hospitals Board for Scotland v Hughes: EAT 8 Feb 2007

EAT In a claim for unfair dismissal where the claimant had written a document in which other employees were criticised and which gave rise to various concerns on the part of his employers, the Employment Tribunal approached the issue of whether or not there had been unfair dismissal on the basis that the onus of establishing that the dismissal was fair was on the respondents and that the claimant had not been dismissed on grounds relating to his conduct (or on any other potentially fair grounds). Despite that finding, the Tribunal went on to consider fairness. They appeared to have posed a test of whether a reasonable employer would have found the claimant’s conduct so wilful, gross or reckless that dismissal would be fair. They appeared to have substituted their own view as to whether or not dismissal was the appropriate response rather than apply the range of reasonable responses test. Further, they stated that the test of whether or not a dismissal was fair had to be applied having regard to all factors pertinent to the claimant, not primarily with regard to the interests of the respondent organisation. The Tribunal went on to consider remedy although they had not been asked to do so and had not heard evidence or submissions thereanent; they issued a provisional view that there should be an order for re-engagement but without any specification as to what might be contained in any such order. Further, the judgment they originally issued contained over forty errors and two sections at the end which had no understandable bearing on the decision but appeared to be extracts from the claimant’s submissions. A Certificate of Correction was issued in which the entire judgment was reissued. Not all errors had, though, been eliminated. Circumstances in which the respondents’ appeal was allowed; the Tribunal had made several fundamental errors of law and their apparently careless attitude to the issuing of the judgment was a cause for concern.

Citations:

[2007] UKEAT 0045 – 06 – 0802, UKEATS/0045/06

Links:

Bailii, EAT

Citing:

Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 10 July 2022; Ref: scu.251291

McE v Hendron and de La Salle Brothers: SCS 11 Apr 2007

(Opinion of Lord Osborne) The claimant sought damages saying that he had suffered abuse while a pupil at the approved school managed by the respondents. The claim was a test case as there were pending some 150 additional cases where abuse was alleged at the hands of brothers at that school.
Held: There was no basis upon which the allegation of vicarious liability on the part of the Institute could succeed and the claim was accordingly dismissed.

Judges:

Lord Osborne, Lord Clarke, Lord Marnoch

Citations:

2007 SCLR 360, [2007] ScotCS CSIH – 27, 2007 GWD 16-301, 2007 SC 556

Links:

ScotC, Bailii

Citing:

See Also – AM v Reverend Joseph Hendron and others OHCS 13-Sep-2005
Serious abuse was said to have been inflicted by monks of the De La Salle order on those in their charge at an approved school in Scotland. The former pupil claimant contended that the SED owed him a non-delegable duty which entitled him to . .
Lists of cited by and citing cases may be incomplete.

Scotland, Torts – Other, Vicarious Liability

Updated: 10 July 2022; Ref: scu.251054

Tods Murray Ws v Mcnamara and Another: SCS 21 Mar 2007

Action by a firm of solicitors for payment of professional accounts incurred by a former client, Arakin Limited (Arakin). There is a counter-claim for damages for professional negligence.

Judges:

ord Justice Clerk And Lord Maclean And Lord Philip

Citations:

[2007] ScotCS CSIH – 19

Links:

Bailii

Jurisdiction:

Scotland

Scotland

Updated: 10 July 2022; Ref: scu.251018

J and H Ritchie Ltd v Lloyd Ltd: HL 7 Mar 2007

The appellants had bought a seed drill from the respondents. It had been repossessed but sold as near new. A fault was noticed after two days use, and it was returned. The defendants repaired it without agreeing this with the appellant, and then refused to say what the repair had been. The claimant now appealed the refusal of his claim that at the time he had purported to reject the machine, it was in a proper state of repair, and was fit for purpose.
Held: The appeal succeeded. It was proper to imply a term to fill a gap left by the 1979 Act when dealing with returned goods and the loss of the right of rejection. Just what term is to be implied may vary with the circumstances. Until a buyer can be said to have accepted the goods, he has not lost the right to reject them. In this case the nature of the fault was not known to the buyer. He was not in a position to make an informed choice as to whether to accept the goods. The respondents had not behaved in accordance with sensible or reasonable commercial practice by refusing to state the nature of the defect, and that failure was in breach of the terms implied on the machine’s return for inspection.

Judges:

Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Mance

Citations:

[2007] UKHL 9, Times 08-Mar-2007

Links:

Bailii

Statutes:

Sale of Goods Act 1979 35(6)(a)

Jurisdiction:

England and Wales

Citing:

Appeal from – J and H Ritchie Ltd v Lloyd Ltd SCS 11-Jan-2005
The buyers sought repayment of the sum paid by them for agricultural machinery purchased from the respondent. The machinery was bought after a repossession, but returned when a vibration was found. The defendants repaired the machine, but would not . .
Cited – William Morton and Co v Muir Brothers and Co 1907
Lord McLaren said: ‘The conception of an implied condition is one with which we are familiar in relation to contracts of every description, and if we seek to trace any such implied conditions to their source, it will be found that in almost every . .
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .
Cited – Clegg v Olle Andersson (T/A Nordic Marine) CA 11-Mar-2003
Right oReject Survived Attempted Repair
The claimant agreed to purchase a yacht from the defendants with a keel to the manufacturer’s standard specifications. The keel actually installed was rather heavier. After correspondence, the claimant rejected the yacht and required the return of . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract, Consumer

Updated: 10 July 2022; Ref: scu.249892

Thomson v Kvaerner Govan Limited: HL 31 Jul 2003

The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient strength to hold his weight. The pursuer’s memory of the events was found to be faulty in several respects.
Held: An appellate court should only replace its own judgment on the facts where the opinion appealed was ‘plainly wrong’. The appeal court here appeared not to have followed that rule. There were difficulties in the pursuer’s explanation, but no other explanation offered itself. Nevertheless, in the absence of evidence, the claimant had to rely upon res ipsa loquitur. That was not available to the pursuer here, and the opinion dismissing his claim was restored.
Lord Hope said: ‘The rule which defines the proper approach of an appellate court to a decision on fact by the court of first instance is so familiar that it would hardly be necessary to repeat it, were it not for the fact that it appears in this case to have been overlooked.’ and: ‘It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion.’

Judges:

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry

Citations:

[2003] UKHL 45, 2003 SCLR 765, 2004 SLT 24, [2004] PIQR P7, 2004 SC (HL) 1

Links:

Bailii, House of Lords

Statutes:

Shipbuilding and Shiprepairing Regulations 1960 (SI 1960/1932) 17(1)

Jurisdiction:

Scotland

Citing:

Cited – Clarke v Edinburgh and District Tramways Co HL 1919
The House considered the ability of an appellate court to reconsider the facts.
Held: The privileges enjoyed by a trial judge extend not only to questions of credibility.
Lord Shaw said that the judge enjoys ‘those advantages, sometimes . .
Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Cited – McLaren v Caldwell’s Paper Mill Company Ltd 1973
(Lord Stott, dissenting) A Lord Ordinary’s view on the credibility or reliability of a witness is not sacrosanct. . .
Approved – Yuill v Yuill CA 1944
Appellate Court’s Caution in Reassessing Facts
The Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent).
Held: The court considered the caution needed when overturning . .
Cited – Scott v The London and St Katherine Docks Co CEC 1865
Requirements to set up Res Ipsa Loquitur
The maxim res ipsa loquitur applies only where circumstances are established which afford reasonable evidence, in the absence of explanation by the defenders, that the accident arose from their negligence. The doctrine of res ipsa loquitur is that: . .

Cited by:

Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Cited – Henderson v Foxworth Investments Limited and Another SC 2-Jul-2014
It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
Held: The appeal was allowed. The critical issue was whether ‘the alienation was made for . .
Cited – DB v Chief Constable of Police Service of Northern Ireland SC 1-Feb-2017
The appellant said that the police Service of Northern Ireland had failed properly to police the ‘flags protest’ in 2012 and 2013. The issue was not as to the care and effort taken, but an alleged misunderstanding of their powers.
Held: Treacy . .
Lists of cited by and citing cases may be incomplete.

Health and Safety, Litigation Practice

Updated: 10 July 2022; Ref: scu.185423

Aitken v Robson: SCS 6 Jan 1914

In a sequestration the creditors elected a trustee but failed to decide on the sufficiency of the caution, and the election of the trustee was never confirmed by the Sheriff. After the lapse of seven years, it being no longer competent under the Bankruptcy (Scotland) Act 1913 for the trustee to obtain confirmation, the Court, on the petition of the bankrupt, in the exercise of its nobile officium, without making a remit to the Accountant of Court, discharged the bankrupt but refused to reinvest him in his estates.

Citations:

[1914] SLR 184

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 10 July 2022; Ref: scu.616610

Apollo Engineering Ltd (In Liquidation) v James Scott Ltd: SCS 18 Jan 2012

The parties had for several years been involved in litigation and arbitration. Apollo’s funds had run out and a director sought permission to represent the company before the court. He had asked the court to make an order under article 6 of the European Convention on Human Rights which would allow him to represent the company.
Held: The court refused the motion enrolled by Mr Politakis in his own name. He was invited to make submissions on his own behalf, and he did so both orally and in writing. The court held that it was well established by the authorities that Scots law does not permit a company to be represented by a director or an employee of the company. It can be represented only by an advocate or a solicitor with a right of audience. The court also refused leave to appeal to the Supreme Court.

Judges:

Lady Paton, Lord Reed, Lord Bracadale

Citations:

[2012] ScotCS CSIH – 4, 2012 SC 282, [2012] CSIH 4, 2012 GWD 5-82

Links:

Bailii

Statutes:

European Convention on Human Rights 6, Court of Session Act 1988 88

Jurisdiction:

Scotland

Citing:

See also – James Scott Limited v Apollo Engineering Limited and others SCS 24-Jan-2000
. .
See Also – Apollo Engineering Ltd v James Scott Ltd SCS 7-Mar-2008
Outer House – Court of Session . .
Cited – John G McGregor (Contractors) Ltd v Grampian Regional Council HL 1991
The House dismissed the Council’s appeal as incompetent. An opinion of the court upon questions of law given on consideration of a case stated under provisions such as those in section 3 of the 1972 Act did not constitute a ‘judgment’ within the . .
Cited – Apollo Engineering Ltd v James Scott Ltd SCS 21-May-2009
Application for judicial review of arbitration . .

Cited by:

At SCS – Apollo Engineering Ltd v James Scott Ltd (Scotland) SC 13-Jun-2013
After long running litigation between the parties, a shareholder and director of Apollo sought to represent the company in person. He was refused leave by the Court of Session, and now sought to appeal. The Court considered the possibility of an . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Constitutional

Updated: 09 July 2022; Ref: scu.450339

Apollo Engineering Ltd v James Scott Ltd: SCS 27 Nov 2012

Application for leave to appeal to the Supreme Court against order refusing permission for a shareholder and director of a party to represent the company.
Held: Leave was refused.

Judges:

Lady Paton, Lord Menzies, Lord Bracadale

Citations:

[2012] ScotCS CSIH – 88

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – James Scott Limited v Apollo Engineering Limited and others SCS 24-Jan-2000
. .
See Also – Apollo Engineering Ltd v James Scott Ltd SCS 7-Mar-2008
Outer House – Court of Session . .
Cited – John G McGregor (Contractors) Ltd v Grampian Regional Council HL 1991
The House dismissed the Council’s appeal as incompetent. An opinion of the court upon questions of law given on consideration of a case stated under provisions such as those in section 3 of the 1972 Act did not constitute a ‘judgment’ within the . .

Cited by:

Leave refused – Apollo Engineering Ltd v James Scott Ltd (Scotland) SC 13-Jun-2013
After long running litigation between the parties, a shareholder and director of Apollo sought to represent the company in person. He was refused leave by the Court of Session, and now sought to appeal. The Court considered the possibility of an . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Company, Litigation Practice

Updated: 09 July 2022; Ref: scu.466319

Apollo Engineering Ltd v James Scott Ltd: SCS 21 May 2009

Application for judicial review of arbitration

Judges:

Lord Kingarth, Lord Eassie, Lord Carloway

Citations:

[2009] ScotCS CSIH – 39, [2009] CSIH 39

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – James Scott Limited v Apollo Engineering Limited and others SCS 24-Jan-2000
. .
See Also – Apollo Engineering Ltd v James Scott Ltd SCS 7-Mar-2008
Outer House – Court of Session . .

Cited by:

Cited – Apollo Engineering Ltd (In Liquidation) v James Scott Ltd SCS 18-Jan-2012
The parties had for several years been involved in litigation and arbitration. Apollo’s funds had run out and a director sought permission to represent the company before the court. He had asked the court to make an order under article 6 of the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 July 2022; Ref: scu.346247

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.

Judges:

Lord Dunedin

Citations:

[1920] UKHL 5, 1920 2 SLT 285, 1920 SC (HL) 195

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Appeal from – Carmichael v Carmichael’s Exx SCS 15-Jul-1919
. .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 09 July 2022; Ref: scu.279681