Category: Scotland

Sellar v Highland Railway Co (No.1): HL 24 Jan 1919

The House considered whether a judge should recuse himself in a case involving a company in which he owned shares.

Judges:

Lord Buckmaster

Citations:

[1919] UKHL 1, 1919 1 SLT 149, 1919 SC (HL) 19

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Kaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Natural Justice

Updated: 09 July 2022; Ref: scu.279678

Apollo Engineering Ltd v James Scott Ltd: SCS 7 Mar 2008

Outer House – Court of Session

Judges:

Lord Malcolm

Citations:

[2008] ScotCS CSOH – 39, [2008] CSOH 39

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – James Scott Limited v Apollo Engineering Limited and others SCS 24-Jan-2000
. .

Cited by:

See Also – Apollo Engineering Ltd v James Scott Ltd SCS 21-May-2009
Application for judicial review of arbitration . .
See Also – 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 . .
See Also – 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. . .
See Also – 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.

Arbitration

Updated: 09 July 2022; Ref: scu.266150

Smith v KD Scott, Electoral Registration Officer: SCS 24 Jan 2007

The prisoner claimed that his right to vote had not been re-instated despite a year having passed since the European Court of Human Rights had found that the withdrawal of that right for prisoners was an infringement.
Held: It was not possible to read down the provision of the 1983 Act, and a declaration of incompatibility was necessary. The Court of Session was a body able to make such an order. The 2000 Act had already restored the rights of prisoners held on remand, but more was required.

Judges:

Lord Abernathy

Citations:

[2007] ScotCS CSIH – 9, 2007 SLT 137, [2007] CSIH 9, 2007 SC 345, 2007 GWD 3-46, 2007 SCLR 268

Links:

Bailii

Statutes:

Representation of the People Act 1983 3(1), Representation of the People Act 2000

Citing:

Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgender Male to Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
Cited – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .

Cited by:

Cited – Tovey and Others v Ministry of Justice QBD 18-Feb-2011
The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Scotland, Elections, Prisons, Human Rights

Updated: 09 July 2022; Ref: scu.248025

Transocean International Resources Ltd and others v Russell and others: EAT 4 Oct 2006

EAT The claimants were offshore workers the vast majority of whom were employed to work on installations situated on or over the UK Continental Shelf (‘UKCS’). They presented applications to the Employment Tribunal in which they claimed that their employers were in breach of the Working Time Regulations 1998 in relation to their rights to paid annual leave. The employers asserted that the regulations did not apply to the UKCS. After a pre-hearing review, the Employment Tribunal held that they did. The employers appealed (by which time the regulations had been amended so as to expressly cover the UKCS but only as from 1 October 2006, leaving parties in dispute regarding the earlier period). The EAT held that the regulations had applied to the UKCS prior to the 2006 amendment.

Judges:

Smith J

Citations:

[2006] UKEAT 0074 – 05 – 0410, UKEATS/0074/05

Links:

Bailii

Cited by:

See Also – Craig and Others v Transocean International Resources Ltd EAT 16-Dec-2008
EAT Working Time Regulations.
Annual leave of offshore workers. Whether employers had given regulation 15 notices. Whether annual leave could be taken out of onshore ‘field breaks’.
Appeal allowed and . .
Appeal from – Tl Russell and Others v Transocean International Resources Ltd and Others SCS 19-Oct-2010
. .
At EAT – Russell and Others v Transocean International Resources Ltd and Others SC 7-Dec-2011
russell_transocean
The appellants worked on various shifts for the defendants in off-shore oil-fields. They were given on-shore rest breaks, which the employers said should count toward their holiday entitlements.
Held: The Court dismissed the employees’ appeal . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 09 July 2022; Ref: scu.247832

Burnett v Grampian Fire and Rescue Service: SCS 9 Jan 2007

SCS At this debate on a preliminary plea the court was asked to decide if Grampian Fire and Rescue Service owed a duty of reasonable care to Mr Burnett when fighting a fire which caused to his property. Mr Burnett raised the action in 2002.
Held: Lord Macphail decided that if the circumstances of the fire were as Mr Burnett claimed them to be, Grampian Fire and Rescue Service would owe himdid have a duty of reasonable care at common law.

Judges:

Lord Macphail

Citations:

[2007] ScotCS CSOH – 03

Links:

Bailii, ScotC

Citing:

Applied – Duff v Highland and Islands Fire Board SCS 3-Nov-1995
(Scots) Firemen were not immune from suit for negligence as are police; no discretion. Lord Macfadyen observed obiter that he would have rejected a submission that the defenders did not owe to the owners of property affected by a fire which they . .
Not followed – Capital and Counties Plc and Another v Hampshire County Council; Etc CA 20-Mar-1997
Three cases were brought against fire services after what were said to be negligent responses to call outs. On one, the fire brigade was called to a fire at office premises in Hampshire. The fire triggered the operation of a heat-activated sprinkler . .

Cited by:

Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
Lists of cited by and citing cases may be incomplete.

Scotland, Local Government, Negligence

Updated: 09 July 2022; Ref: scu.247657

Robb v Salamis (M and I) Ltd: HL 13 Dec 2006

The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had contributed to the accident by his negligence.
Held: The employee’s appeal succeeded. The aim in both regulations is the same. It is to ensure that work equipment which is made available to workers may be used by them without impairment to their safety or health: see article 3(1) of the Work Equipment Directive. This is an absolute and continuing duty, which extends to every aspect related to their work. The employer had a duty to anticipate accidents. The accident was caused by the defender’s failure to comply with the regulations, but the pursuer contributed to the extent of 50%.

Judges:

Lord Hope of Craighead, Lord Clyde, Lord Scott of Foscote, Lord Rudger of Earlsferry and Lord Carswell

Citations:

[2006] UKHL 56, Times 22-Dec-2006, 2007 SC (HL) 71, [2007] 2 All ER 97, [2007] ICR 175

Links:

Bailii

Statutes:

Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) 4 20, Framework Directive 89/391/EEC, Work Equipment Directive 89/655/EEC

Jurisdiction:

England and Wales

Citing:

Appeal from – Robb v Salamis (M and I) Limited OHCS 16-Mar-2005
. .
See Also – Salamis (Marine and Industrial) Limited v Douglas Forbes OHCS 14-Jul-2005
. .
Cited – Hindle v Birtwistle 1897
The employer considering the use of dangerous machinery must allow for ‘the contingency of carelessness on the part of the workman in charge of it and the frequency with which that contingency is likely to arise’ . .
Cited – Horton v Taplin Contracts Limited CA 8-Nov-2002
The employee claimed damages after injury at work using scaffolding equipment supplied by his employers which was upset by the violent act of a fellow employee.
Held: The equipment when used properly was safe. It only became dangerous if . .
Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Cited – Pickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
Cited – John Summers and Sons Ltd v Frost HL 1955
Construction of Workmen Safety Statutes
The normal rule that penal statutes must be strictly construed has not been allowed to stand in the way of the protection given to the workman by the statutory language. The House considered the requirement under section 14(1) of the 1937 Act that . .
Cited – Mitchell v North British Rubber Co Ltd 1945
The court considered the meaning of the term ‘dangerous’ in the Act. Lord Justice Clerk Cooper: ‘The question is not whether the occupiers of the factory knew that it was dangerous; nor whether a factory inspector had so reported; nor whether . .
Cited – Mcfarlane v Ferguson Shipbuilders Limited OHCS 16-Mar-2004
. .
Cited – Griffiths v Vauxhall Motors Ltd CA 12-Mar-2003
The court considered the effect of the regulations: ‘Regulation 4 and indeed 5 are concerned with the physical condition of the equipment on the assumption that they will be properly operated by properly trained and instructed personnel.’ A risk . .
Cited – Hughes v Lord Advocate HL 21-Feb-1963
The defendants had left a manhole uncovered and protected only by a tent and paraffin lamp. A child climbed down the hole. When he came out he kicked over one of the lamps. It fell into the hole and caused an explosion. The child was burned. The . .
Cited – Owners of the ‘Boy Andrew’ v Owners of the ‘St Rognvald’ HL 1947
The House should not alter the apportionment of responsibility for an accident assessed by the judge save in exceptional circumstances. . .
Cited – Close v Steel Company of Wales Ltd 1962
The pursuer sought damages after injury arising from the use of a tool for a purpose other than that for which it was intended to be used. Lord Denning quoted Sir Frederick Pollock to say: ‘Judicial authority belongs not to the exact words used in . .
Cited – Miller v South of Scotland Electricity Board HL 1958
An employer should recognise that it is not possible to predict all the ways in which dangers may arise, especially where the risk is created by carelessness. The employer is liable even if he did not foresee the precise accident that happened. In . .
Cited – John Summers and Sons Ltd v Frost HL 1955
Construction of Workmen Safety Statutes
The normal rule that penal statutes must be strictly construed has not been allowed to stand in the way of the protection given to the workman by the statutory language. The House considered the requirement under section 14(1) of the 1937 Act that . .
Cited – Lyon v Don Brothers, Buist and Co 1944
Lord Justice General Normand said that the circumstances which can reasonably be expected by an employer in the context of health and safety ‘include a great deal more than the staid, prudent, well-regulated conduct of men diligently attentive to . .
Cited – Smith (formerly Westwood) v National Coal Board HL 1967
Lord Reid said that an employer ‘must always have in mind, not only the careful man, but also the man who is inattentive to such a degree as can normally be expected.’ . .

Cited by:

Cited – Spencer-Franks v Kellogg Brown and Root Ltd and others HL 2-Jul-2008
The deceased worked for the defendants on an oil rig. He was injured by a door closer he was attempting to repair. The defendants denied that the mechanism was equipment within the Regulations.
Held: The appeal was allowed. The door closer was . .
Cited – Baker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .
Lists of cited by and citing cases may be incomplete.

Health and Safety, Scotland

Updated: 08 July 2022; Ref: scu.247398

Common Services Agency v Scottish Information Commissioner: IHCS 1 Dec 2006

The Agency rejected a request to provide statistics on certain children, saying that the numbers were so small that individuals might be identified.
Held: Since the whole purpose of 2002 Act is the release of information, it should be construed in as liberal a manner as possible. The table setting out the census ward data, anonymised as described, would not constitute personal data of any of the children resident in the area who had in a relevant year been diagnosed with leukaemia. It was information that was held by the Agency at the time when the request was received, and the Commissioner was entitled to require the Agency to provide this data in the exercise of his supervisory powers under the Act.

Judges:

Lord President And Lord Marnoch And Lord Nimmo Smith

Citations:

[2006] ScotCS CSIH – 58, 2007 SC 231, [2006] CSIH 58

Links:

Bailii, ScotC

Statutes:

Freedom of Information (Scotland) Act 2002, Data Protection Act 1998

Citing:

Cited – Durant v Financial Services Authority CA 8-Dec-2003
The appellant had been unsuccessful in litigation against his former bank. The Financial Services Authority had subsequently investigated his complaint against the bank. Using section 7 of the Data Protection Act 1998, he requested disclosure of his . .

Cited by:

Appeal from – Common Services Agency v Scottish Information Commissioner HL 9-Jul-2008
An MP had asked the Agency under the 2002 Act for details of all incidents of childhood leukaemia for both sexes by year from 1990 to 2003 for all the DG (Dumfries and Galloway) postal area by census ward. The Agency replied by saying that the . .
Cited – Sugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .
Lists of cited by and citing cases may be incomplete.

Scotland, Information

Updated: 08 July 2022; Ref: scu.246819

Morgan v Stirling Council: SCS 10 Oct 2006

(Outer House) Lord Glennie pointed out that anyone who is homeless is also vulnerable, and accordingly it follows that section 189(1)(c) must contemplate homeless people who would be more vulnerable than many others in the same position (especially given the words ‘or other special reason’ which show that vulnerability arising from many causes is covered).

Judges:

Lord Glennie

Citations:

[2006] ScotCS CSOH – 154, [2006] Hous LR 95, 2006 SLT 962

Links:

ScotC, Bailii

Statutes:

Housing Act 1996 189(1)

Cited by:

Cited – Hotak and Others v London Borough of Southwark and Another SC 13-May-2015
The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those . .
Lists of cited by and citing cases may be incomplete.

Scotland, Housing

Updated: 08 July 2022; Ref: scu.245477

La Torre v Her Majesty’s Advocate: HCJ 14 Jul 2006

The applicant resisted his extradition to Italy, saying that the provisions of Part 2 of the 2003 Act were engaged because the case started life before Italy ratified the Framework Decision and so adopted the EAW system. La Torre had been found guilty of extradition crimes in Italy and sentenced, but this first instance process was not final in the eye of Italian law.
Held: The section distinguished between an accused person and a person alleged to be unlawfully at large after conviction. Since it is agreed that the accused is not alleged to be unlawfully at large after conviction, it follows, in our view, that he has to be categorised as an accused person within the meaning of section 70(4)(a). The key consideration is the fact that the accused’s sentence is still subject to appeal and his conviction cannot be said to be final.

Judges:

Lord Justice Clerk And Lord Macfadyen And Lord Nimmo Smith

Citations:

[2006] ScotHC HCJAC – 56, 2008 JC 23, [2007] Eu LR 70, 2006 GWD 31-667, 2006 SCCR 503, 2006 SLT 989

Links:

ScotC, Bailii

Statutes:

Extradition Act 2003

Cited by:

See Also – La Torre v The Lord Advocate and Another HCJ 8-Nov-2006
The Lord Advocate had conceded that devolution minutes were competent in proceedings under the 2003 Act. . .
Cited – Caldarelli v The Court of Naples Admn 12-Jul-2007
The court certified a point of law for the House of Lords as follows: ‘Where a fugitive has been convicted and sentenced in his absence in the requesting state, but the conviction and sentence are neither final nor enforceable, may his case be . .
Cited – Caldarelli v Court of Naples HL 30-Jul-2008
The appellant challenged his extradition saying that the European Arrest Warrant under which he was held wrongly said that he was convicted, whilst he said he was wanted for trial. He had been tried in his absence, and the judgment and sentence were . .
Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
See Also – La Torre v Italy Admn 20-Jun-2007
Laws LJ considered the decision in Kakis and said: ‘All the circumstances must be considered in order to judge whether the unjust/oppressive test is met. Culpable delay on the part of the State may certainly colour that judgment and may sometimes be . .
Lists of cited by and citing cases may be incomplete.

Scotland, Crime, Extradition

Updated: 07 July 2022; Ref: scu.244044

The Scottish Lion Insurance Company Ltd, Re Sanction of A Scheme of Arrangement: SCS 8 Mar 2006

Sanction had been sought for a scheme of arrangement on the winding up of an insurance company. There were objections. The original scheme had been proposed under English law, and it would be inappropriate for a Scottish court to try to sanction such an arrangement. Payment of et fess of Engliah lawyers was sought.
Held: the court could not sanction the payment in the manner requested. The court set out how the Auditor must look at the English solicitor’s fee account.

Citations:

[2006] ScotCS CSOH – 37

Links:

Bailii

Statutes:

Companies Act 1985 425, Court of Session Act 1988, Interpretation Act 1978 811

Jurisdiction:

Scotland

Citing:

Cited – Wilson v Craig 1983
. .
Cited – Wimpey Construction (UK) Ltd v Martin Black and Co (Wire Ropes) Ltd 1988
The provisions of the Table of Fees under the Rules of Court were only applicable to Scottish solicitors. The court set out how fees incurred to solicitors practising outside Scotland are recovered in a Scottish taxation of expenses. In summary: 1. . .
Cited – Laing v Scottish Arts Council SCS 15-Dec-2000
A Lord Ordinary has power to correct an interlocutor to bring it into line with the court’s original intention. . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, Costs

Updated: 07 July 2022; Ref: scu.238902

Thom’s Executrix v Russel and Aitken: 1983

The court was asked as to how the value of the interest of a deceased partner was to be calculated.
Held: There had been prior dealings at book value as between the partners, and the payment of the deceased partner’s share was restricted to book value of the capital. The court considered the case law and ‘That is sufficient for the disposal of the case but there is another and equally cogent reason for reaching the same conclusion namely, the actings of the parties under the contract. It was clearly recognised in the three cases to which I have referred that even if the contract is silent as to the accounting principles to be applied fair market valuations of assets will not be required to appear in the accounts if it can reasonably be inferred from the actings of the partners that they intended otherwise. ‘ and ‘Taking all the foregoing factors into account I conclude that even if the correct position were that the contract of co-partnery were silent on the matter nevertheless the actings of the partners thereunder and under the two preceding contracts demonstrate clearly that there was no intention on their part that a partner leaving the partnership either by retiral or by death should receive his share calculated other than by reference to book value.’

Judges:

Lord Jauncey

Citations:

1983 SLT 335

Jurisdiction:

Scotland

Citing:

Cited – Cruikshank v Sutherland HL 1923
The executors of a deceased partner of the respondents sought relief. The assets had been taken over from an earlier partnership between the parties and had been brought into the accounts of the new partnership at the values at which they had stood . .
Cited – Noble v Noble OHCS 1965
A father took his son into a farming partnership. The agreement recited that they agreed that ‘the heritable property should be taken as of the value of eight thousand pounds, but which is burdened with a heritable security for three thousand five . .
Cited – Shaw v Shaw OHCS 1968
‘The authorities to which I was referred, including, in particular, Noble v Noble; Inner House, 28th January 1966 (unreported), and Cruickshank’s Trustees v Sutherland, satisfy me that, as a general principle, where in a partnership it is necessary . .

Cited by:

Cited – In Re White (Dennis) Deceased; White v Minnis and Another CA 25-May-2000
A family partnership had carried freehold property at its historic cost value in the books, rather than at a market value. After the death of one partner the share came to be valued.
Held: Being a family partnership there was presumption that . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 July 2022; Ref: scu.238864

Noble v Noble: OHCS 1965

A father took his son into a farming partnership. The agreement recited that they agreed that ‘the heritable property should be taken as of the value of eight thousand pounds, but which is burdened with a heritable security for three thousand five hundred pounds’. Proper books of account were to be kept. Until 1963 the books of account were prepared on the basis of those values. In 1963 the father sought a declaration that he was entitled to have the capital value of the assets of the partnership entered in the balance sheet at a real and not an arbitrary or notional value.
Held: The issue is one of construction: what did the partners intend by the agreement which they made. Lord Strachan, sitting in the Outer House of the Court of Session, granted the declaration. As to Cruikshank v Sutherland: ‘The fact that Cruikshank was dealing with the share of a deceased partner is not, in my opinion, a material ground for distinguishing it from the present case. Similar issues are involved in this case, because under clause seventh of the contract a retiring partner or the representatives of a deceased partner are to be paid the sum at his credit as shown in the last preceding balance sheet. The same issues are therefore raised, but ab ante. It was argued for the defender, however, that there is vital distinction between Cruikshank and the present case in respect that the agreement that the heritable property is to be taken as of the value of andpound;8,000 laid down a definite figure which was to be adopted in preparing the accounts and that it therefore cannot be said that the contract is silent as to the principle to be adopted in entering the heritable property. That point is the crux of the case, and with some hesitation, I have come to the opinion that the narrative references in the contract and the disposition cannot reasonably be read as meaning that the figure of andpound;8,000 was to be entered in every balance sheet. It was a figure which was agreed for the purpose of fixing the capital of the company but on a construction of the whole deeds I find insufficient warrant for holding that it was intended to be a permanent valuation to be entered in every balance sheet. If that were so, a retiring or deceased partner would have no share whatever in any increase in the market value of the property, and if such an apparently unfair result had been intended, I think it would have been provided for in the eight clauses in which the terms and conditions of the partnership are reduced to writing, and would not have been left to be inferred from the narrative clauses. In my opinion, therefore, the contract is silent as to the principle to be adopted in framing the balance sheet, and Cruikshank is not distinguishable on that ground.’
Lord Clyde: ‘In my opinion the provision requiring the keeping of proper books annually balanced and regularly audited requires the inclusion in the balance sheet of the assets of the partnership at their true value at the end of the year in question. The language of cl.6 of the contract of co-partnery will not therefore be complied with if any of the assets, one of which is the farm itself, is entered at a mere nominal value which was fixed by agreement between the parties when the contract was made. I can find nothing in art. 6 of the contract to support the view that the value of the farm itself – the main asset – was to be frozen year by year at a constant figure throughout the partnership . . . It was contended by the defender that in solicitors’ partnership agreements it is quite common to provide that the heritable property in which the business is carried on should be entered at a constant figure in the balance sheets of the partnership throughout its term. It is of course quite legitimate for parties to make such a provision, but clear language to that effect is essential. There is no such provision in the present case.’
Lord Migdale: ‘As I understood their arguments counsel on both sides are agreed that it is always open to partners to provide that an asset acquired by the partnership should continue to appear in the partnership books at its original value. The question raised here is not whether it can be so agreed but whether in this case it was so agreed.’

Judges:

Lord Migdale, Lord Strachan, Lord Clyde

Citations:

[1965] SLT 415

Jurisdiction:

Scotland

Citing:

Cited – Cruikshank v Sutherland HL 1923
The executors of a deceased partner of the respondents sought relief. The assets had been taken over from an earlier partnership between the parties and had been brought into the accounts of the new partnership at the values at which they had stood . .

Cited by:

Cited – In Re White (Dennis) Deceased; White v Minnis and Another CA 25-May-2000
A family partnership had carried freehold property at its historic cost value in the books, rather than at a market value. After the death of one partner the share came to be valued.
Held: Being a family partnership there was presumption that . .
Cited – In Re White (Dennis) Deceased; White v Minnis and Another CA 25-May-2000
A family partnership had carried freehold property at its historic cost value in the books, rather than at a market value. After the death of one partner the share came to be valued.
Held: Being a family partnership there was presumption that . .
Appeal from – Noble v Noble IHCS 26-Jan-1966
. .
Cited – Thom’s Executrix v Russel and Aitken 1983
The court was asked as to how the value of the interest of a deceased partner was to be calculated.
Held: There had been prior dealings at book value as between the partners, and the payment of the deceased partner’s share was restricted to . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 July 2022; Ref: scu.238858

Clark v Watson: 1982

Two dentists practised in partnership. The co-partner said that on the death of one, to his estate should be paid ‘the Capital standing to the credit of the deceased Partner in the Accounts of the Partnership’. The court was asked whether that provision would require accounts to be taken as at the date of death.
Held: The practice would have to draw up accounts to the date of death, but: ‘If this conclusion is incorrect and, contrary to my opinion, the phrase ‘the Accounts of the Partnership’ in cl. Fourteenth falls to be construed as meaning inter alia a balance sheet as at 31 March 1977, it nevertheless follows from my opinion that there is nothing in this contract of copartnery to take it outwith the scope of the general rule that the pursuer qua executrix of the deceased is entitled to have the assets entered at their fair value in a fresh balance sheet as at 31 March 1977. This is certainly so if the deceased is not proved to have approved these existing accounts prepared as at 31 March 1977. Although I have heard no debate on what would be the effect of his approval of the accounts, I venture to think that his approval would not bind the pursuer to accept payment in accordance with these accounts. They were prepared upon the assumption that the partnership would continue. The deceased may have agreed to the assets being inserted at a book value in accounts prepared upon that assumption, but I do not, as at present advised, see how the deceased’s approval of accounts for that purpose can bind the pursuer to accept that valuation of the assets for the purpose of obtaining payment of the deceased’s share of capital on dissolution of the partnership by his death.’

Judges:

Lord Dunpark

Citations:

1982 SLT 450

Jurisdiction:

Scotland

Cited by:

Cited – In Re White (Dennis) Deceased; White v Minnis and Another CA 25-May-2000
A family partnership had carried freehold property at its historic cost value in the books, rather than at a market value. After the death of one partner the share came to be valued.
Held: Being a family partnership there was presumption that . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 July 2022; Ref: scu.238867

Scott v Lothian University Hospitals NHS Trust: SCS 13 Jun 2006

Outer House

Judges:

Lord Hodge

Citations:

[2006] ScotCS CSOH – 92

Links:

Bailii, ScotC

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: 06 July 2022; Ref: scu.242479

Inland Revenue Commissioners v Korner: HL 19 Feb 1969

Income tax, Schedule D – D eduction – Farm ing – Maintenance, etc., expenditure on farm house – Whether expenditure for domestic purposes distinct from those of the trade – Income Tax A c t 1952 (15 and 16 Geo. 6 and 1 Eliz. 2, c. 10) 55. 124, 137(6) and (d) and 526(1).
The House was asked whether expenses in repairing and maintaining a farmhouse, the House of Elrig, could be set off against income tax. The farmhouse had twenty rooms, but only one was used for the farm.
Held: The expenditure could be set off in full. The test of whether property was such as could benefit from income tax relief as an agricultural property was that of the reasonable man.
Lord Upjohn said: ‘My Lords, the Special Commissioners in the Case Stated said that they were not satisfied that the House of Elrig was ‘the farmhouse’, within the meaning of the Income Tax Act 1952, of the land occupied for the purposes of husbandry by the Korner family. In its Case before your Lordships’ House the Crown said that it shared those doubts but was prepared to make the concession, so your Lordships are not directly concerned with the question. But I think it right to say that I am no more satisfied than were the Special Commissioners that this house could properly be described as ‘the farmhouse’ within section 526. This is a matter of fact to be decided in the circumstances of each case, and I would think that to be ‘the farmhouse’ for the purposes of the section it must be judged in accordance with ordinary ideas of what is appropriate in size, content and layout, taken in conjunction with the farm buildings and the particular area of farmland being farmed and not part of a rich man’s considerable residence.’
And ‘The result of . . Schedule D was that, apart altogether from s.526, the farmer occupying a house (no doubt with his wife and children) for the purpose of his farming activities would be entitled to claim a proportion of the reasonable and necessary expenditure upon the maintenance of his house as a deduction from his assessment to tax for the purposes of Schedule D. This practice is very old, works great justice between the Crown and the subject and I trust will never be disturbed. Thus speaking generally the grocer living above his shop, the doctor who has a surgery in his house and the barrister who works in his house where he keeps or brings his law books and works on his briefs in the evenings and at weekends is allowed by the Crown a reasonable sum in respect of the necessary upkeep of his dwelling as being properly attributable to his trading or professional activities.
So that in the present case there is no doubt, and indeed it is not disputed, for I did not understand the Solicitor- General for Scotland to challenge this proposition in his reply, that, apart from s.526, the respondents are, in any event, entitled to a proportion of the expenses, and it is agreed between the parties that this proportion should be one tenth .’

Judges:

Lord Upjohn

Citations:

[1969] 1 All ER 679, [1969] 1 WLR 554, [1969] UKHL TC – 45 – 287, 1969 SLT 109, [1969] 1 WLR 554, 45 TC 287

Links:

Bailii

Statutes:

Income Tax Act 1952 124(1) 137 526

Jurisdiction:

England and Wales

Cited by:

Cited – Lloyds TSB Private Banking Plc (personal representative of Rosemary Antrobus deceased) v Inland Revenue (Capital Taxes); Re Cookhill Priory (No 2) LT 10-Oct-2005
LT TAX – Inheritance Tax – agricultural property relief – agricultural value – agricultural property – farmhouses – whether house occupied by ‘lifestyle’ farmer could be farmhouse – held bid of such person could . .
Cited – Lloyds TSB Bank Plc (Antrobus Deceased) v Inland Revenue (No 1) SCIT 17-Oct-2002
SCIT INHERITANCE TAX – agricultural property relief – freehold house which was owned and occupied by the deceased – agreed that it was a farmhouse – whether it was of a character appropriate to the property – yes . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Scotland

Updated: 06 July 2022; Ref: scu.242348

Docherty v H M Advocate: 1945

At trial, the judge had failed to make clear to the jury that the conviction of the appellant on a charge of murder depended on whether there was satisfactory proof of having acted in concert with others.
Held: Lord Moncrieff commented on an illustration which the trial judge had given to the jury in the course of his charge, saying: ‘It is true that if people acting in concert have reason to expect that a lethal weapon will be used – and their expectation may be demonstrated by various circumstances, as, for example, if they themselves have carried arms or if they know that arms and lethal weapons are being carried by their associates – they may then under the law with regard to concert each one of them become guilty of murder if the weapon is used with fatal results by one of them. In view of their assumed expectation that it might be used, and of their having joined together in an act of violence apt to be completed by its use, they will be assumed in law to have authorised the use of the fatal weapon, and so to have incurred personal responsibility for using it. If, on the other hand, they had no reason to expect that any one among them would resort to any such act of violence, the mere fact that they were associated in minor violence would not be conclusive against them; and the lethal act, as being unexpected, will not be ascribed to a joint purpose so as to make others than the principal actor responsible for the act’. This distinction had the support of many authorities. Secondary responsibility for a criminal act arises only in cases of reasonable expectation. Commenting on the circumstances of the case: ‘But in this case the weapon which was used was a hatchet which was the property of the appellant and which must have been present visibly in the room; and it seems to me that in these circumstances either of the assailants must have ascribed to him a common expectation that in the stress of the event the other might snatch up anything which was handy and which was adapted to achieve the joint purpose’.

Judges:

Lord Moncrieff

Citations:

1945 J C 89

Jurisdiction:

Scotland

Cited by:

Cited – McKenna v Her Majesty’s Advocate ScHC 30-Dec-1999
The appellant was charged with murder. A witness had since died, and he objected to the introduction of his written statement, on the basis that this would infringe his right to a fair trial. The evidence was likely to be decisive.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 06 July 2022; Ref: scu.181204

BMB Recruitment v Hunter: EAT 18 Jan 2006

EAT Practice and Procedure – Striking-out/dismissal. – Claimant’s claim struck out on grounds of having conducted his claim in a scandalous manner, tribunal having issued a prior warning to him about his conduct. Scandalous conduct of case continued notwithstanding warning. On appeal to the Employment Appeal Tribunal, it was held that his notice of appeal disclosed no reasonable grounds but, rather, evidenced an intention to persist with the same conduct.

Judges:

The Honourable Lady Smith

Citations:

UKEATS/0056/05, [2006] UKEAT 0056 – 05 – 1801

Links:

Bailii, EAT

Employment, Scotland

Updated: 05 July 2022; Ref: scu.240202

Revenue and Customs v RBS Deutschland Holdings Gmbh: SCS 13 Jan 2006

SCS The taxpayer, a German subsidiary of a UK bank, carried on a banking and leasing business in Germany. It did not have a place of establishment in the UK. It was registered in the UK for VAT as a non-established taxable person. It bought cars in the UK from an unconnected seller, and leased the cars back to the same group, with a put option requiring the cars to be bought back later. It paid VAT on the purchases but did not charge VAT on the leases. Under UK legislation the leases were treated as supplies made in Germany, and not subject to VAT in the UK, whereas under German law, having regard to the particular terms of the leases, they were treated as supplies made in the UK and therefore not subject to VAT in Germany. On the exercise of the put option, UK VAT was charged on the sale, but the taxpayer sought to deduct the input tax incurred on the purchase.

Judges:

Lord Clarke And Lady Dorrian And Lord Osborne

Citations:

[2006] ScotCS CSIH – 10

Links:

Bailii

Jurisdiction:

Scotland

Citing:

At VDT (1) – RBS Deutschland Holdings Gmbh v Customs and Excise VDT 16-Nov-2004
VDT Application: Interlocutory Hearing – Jurisdiction – whether appeal raised in Edinburgh should be transmitted to London in respect that there was another connected appeal there – whether Appellants with . .
Appeal from – RBS Deutschland Holdings Gmbh v Revenue and Customs VDT 3-May-2005
VDT Applications – opposed motion to sist part of the proceedings in the appeal pending an ECJ Decision: Application for an order for disclosure of documents – necessity of documents, relevance to issue . .

Cited by:

At Inner House – RBS Deutschland Holdings Gmbh v Revenue and Customs VDT 24-Jul-2007
VDT VAT – deduction of input tax – leasing of cars within UK by German subsidiary company – cars purchased within UK, remaining there and subject to VAT in UK – leasing deemed to be supply of services in Germany . .
At Inner House – Commissioners for Her Majesty’s Revenue and Customs v RBS Deutschland Holdings ECJ 30-Sep-2010
ECJ Opinion – Interpretation of Article 17(3)(a) of the Sixth VAT Directive – Transactions carried out with the sole aim of obtaining a tax advantage – Provision of vehicle leasing services in the United Kingdom . .
At Inner House – Commissioners for Her Majesty’s Revenue and Customs v RBS Deutschland Holdings ECJ 22-Dec-2010
ECJ Sixth VAT Directive – Right to deduction – Purchase of vehicles and use for leasing transactions – Differences between the tax regimes of two Member States – Prohibition of abusive practices
‘taxable . .
Lists of cited by and citing cases may be incomplete.

VAT, European

Updated: 05 July 2022; Ref: scu.238710

Forsyth v A F Stoddard and Co Ltd: OHCS 1985

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.’

Judges:

Lord Justice Clerk Wheatley

Citations:

1985 SLT 51

Jurisdiction:

Scotland

Citing:

Approved – Donald v Rutherford IHCS 1984
A pedestrian was injured in a road traffic accident on 3 November 1975 but only raised an action on 13 February 1981. The failure to raise a timeous action was attributable to the fault of his former solicitors.
Held: He was allowed to proceed . .

Cited by:

Cited – David Lannigan v Glasgow City Council OHCS 12-Aug-2004
The pursuer said the teachers employed by the defendant had failed to identify that was dyslexic, leading him to suffer damage. The defenders said the claim was time barred, which the pursuer admitted, but then said that the claim ought to go ahead . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 05 July 2022; Ref: scu.200279

Blair and Others v Sir William Moncrieff, Bart: HL 5 Jan 1766

Contravention of Marriage Contract – Service – Minority – Passive Title – Ratification.- 1. Held that the heir of the marriage is entitled to reduce a deed executed in fraud of the marriage contract, without expeding a general service; 2. Held such heir is entitled to set aside a general service expede in his name in minority, to his hurt and prejudice, in so far as it made him universally liable for his father’s debts; 3. Also held, that as his ancestor died in apparency in regard to Moncrieff estate, he was entitled to pass him over and serve heir to his grandfather, without being liable for the debts; and as to the other provision, or estate of andpound;5555. 11s. 1d., and 100,000 merks, he was not liable passive, he not having taken benefit from that estate, and that a sum of andpound;2500 received to ratify these did not make him liable passive.

Citations:

[1766] UKHL 2 – Paton – 126, (1766) 2 Paton 126

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 04 July 2022; Ref: scu.560634

David Orme, Writer In Edinburgh v John Leslie of Balquhain, Esq: HL 25 Feb 1780

Entail – Leases – Alienation.-
How far leases for four nineteen years’ duration of an entailed estate were reducible as an ‘alienation’ thereof. Leases sustained, in the special circumstances, for the granter’s life, and the life of the heir who ratified them; but a lease of a mansion house, offices, and gardens, andc. reduced, and also of the lands beyond the lifetime of these parties.

Citations:

[1780] UKHL 2 – Paton – 533, (1780) 2 Paton 533

Links:

Bailii

Jurisdiction:

Scotland

Landlord and Tenant

Updated: 04 July 2022; Ref: scu.561496

The Earl of Roseberry v The Creditors of Hugh Lord Viscount Primrose, Deceased: HL 3 Apr 1767

Entail – Registration – Act 1685 – Passive Representation. – (1.) An entail Mas made, and charter and infeftment passed thereon some years before the Act 1685, regarding the recording of entails, Held, that in order to protect against creditors, such an entail must be recorded. (2.) An heir succeeding, not by an universal title, but as heir under a particular destination, and not haeres alioquin successurus, found only liable to the extent of the value to which he succeeded.

Citations:

[1767] UKHL 3 – Paton – 651, (1767) 3 Paton 651

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 04 July 2022; Ref: scu.560700

Robert Hogg Esq, of Ramoir v Mary Hogg, Widow of Deceased Robert Gordon: HL 14 Feb 1780

Irritancy of Lease – Penalty.-
A lease provided, that if two terms rent were allowed to be ‘resting and owing unpaid at one time, the tack should eo ipso become void and null,’ with a fifth part more of termly moiety in case of failure. The tenant fell four years in arrear of rent. In an action brought under the annulling clause in the lease: Held the irritancy purgeable at the bar; and that the penalty, in case of failure of a fifth part more, was not exigible.

Citations:

[1780] UKHL 2 – Paton – 516a, (1780) 2 Paton 516a

Links:

Bailii

Jurisdiction:

Scotland

Landlord and Tenant

Updated: 04 July 2022; Ref: scu.561497

Mrs Eupham Hamilton, Widow of Charles Hamilton, Esq, and Bethia and Charlotte Hamilton, Their Daughters v Archibald Hamilton, Esq of Rosehall: HL 5 Apr 1767

Heir and Executor – Apparency – Rents.- Held, reversing the judgment of the Court of Session, that the executors, and not the heir of a party who died in possession of an estate on apparency, was entitled to the arrears of rents unuplifted at her death.

Citations:

[1767] UKHL 2 – Paton – 137, (1767) 2 Paton 137

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 04 July 2022; Ref: scu.560701

Alexander Burnet, Charge Des Affaires At The Court of Berlin v Sir Thomas Burnet, Bart: HL 30 Apr 1766

Succession – Adjudications – Destination – Heirs Whatsoever – Confusio.- Adjudications were purchased up by the heir succeeding to an estate specially destined to ‘ heirs male.’ He took the conveyances of these adjudications to himself and his ‘heirs whatsoever.’ Held, that when the estate descended to an heir male, different from the heir of line, or heir whatsoever, that the heirs of line were not entitled to succeed as such, to the adjudications; and that these, as collateral and accessory rights, had accrued to the family estate, and were not now a separated estate, but extinguished confusione in the person of the heir male.

Citations:

[1766] UKHL 2 – Paton – 122, (1766) 2 Paton 122

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 04 July 2022; Ref: scu.560636

John Hamilton, of Pumpherston, Esq v Katherine Lady Cardross: HL 8 Apr 1712

A tack sustained, which, in the recital, bore to be granted by a Minor with consent of his Curators, but was signed by the landlord only.
Homologation. – In a reduction of a Tack on the ground of nullity, it being found that the receipt of the rent by the Grantor’s heir for more than 30 years, imported no homologation, the Judgment is reversed.

Citations:

[1712] UKHL Robertson – 37, (1712) Robertson 37

Links:

Bailii

Jurisdiction:

Scotland

Children

Updated: 04 July 2022; Ref: scu.553458

Chapman and East Lothian Council: SIC 24 Jun 2015

Council’s Response To Report On National Planning Framework (NPF3) – On 5 September 2014, Mr Chapman asked East Lothian Council (the Council) for information pertaining to the formulation of specific parts of the Council’s formal response to a report on the National Planning Framework (NPF3).
The Council provided Mr Chapman with some information. Following a review, Mr Chapman remained dissatisfied as he believed the Council held further information, and applied to the Commissioner for a decision.
The Commissioner investigated and found that the Council had not provided Mr Chapman with all the information it held. By the close of the investigation, the Commissioner was satisfied that the Council had provided Mr Chapman with all further information held. She did not require the Council to take any action.

Citations:

[2015] ScotIC 094 – 2015

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 04 July 2022; Ref: scu.550857

Mckie and others v Macrae and Another: OHCS 23 Dec 2005

Judges:

Lord Glennie

Citations:

[2005] ScotCS CSOH – 175

Links:

Bailii, ScotC

Citing:

Cited – Bremer Vulkan Schiffbau und Maschineenfabrik v South India Shipping Coroporation HL 1981
The parties had referred their dispute to arbitration, but there had been inordinate delay, and the plaintiffs complained that the delay had prejudiced them, and sought an injunction to prevent further contuance of the arbitration, saying that the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Jurisdiction

Updated: 04 July 2022; Ref: scu.236853