Category: Scotland

Stewart v Kennedy: HL 10 Mar 1890

As a general rule of Scottish law, extrinsic evidence of the parties’ intention as to whether or not they intended to be bound by obligations which they have entered into in writing is inadmissible. There may however be exceptional cases.
For a plea of error to succeed, it had to be shown that there was uninduced unilateral error going to the ‘substantials’ of the contract.
A party must take his contract as bearing whatever meaning the court will assign to it when it is called upon to interpret it. He is bound ‘by the interpretation which a court of law may put upon the language of the instrument.’

Judges:

Lord Watson

Citations:

[1890] UKHL 1, (1890) 17 R (HL) 25, (1890) LR 15 App Cas 108

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 04 July 2022; Ref: scu.236514

Donaldson v Hays Distribution Services Limited Cb Hillier Parker Management Services Limited Cb Hillier Parker Limited National Britannia Health and Safety Limited: OHCS 25 Feb 2004

Judges:

Lord Menzies

Citations:

[2004] ScotCS 44

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

See Also – Candace Donaldson v Hays Distribution Services Limited C B Hillier Parker Management Services Limited and C B Hillier Parker Limited National Britannia Health and Safety Limited OHCS 14-Jun-2005
A visitor who was crushed between a lorry and a loading bay while collecting her purchases at a shopping centre did not have a strict liability claim under the 1992 Regulations against the lorry driver’s employers or the controllers of the bay. . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 04 July 2022; Ref: scu.194372

Haddow v Glasgow City Council: SCS 23 Nov 2005

Outer House – The pursuer sought damages from her employers, saying that she had slipped on a wet floor, and had not been provided with non-slip shoes.

Judges:

Lord MacPhail

Citations:

[2005] ScotCS CSOH – 157

Links:

Bailii

Statutes:

Personal Protective Equipment at Work Regulations 1992 4 10

Scotland, Personal Injury, Health and Safety

Updated: 04 July 2022; Ref: scu.235245

Bacica v Muir: EAT 20 Sep 2005

EAT Working Time Regulations – Holiday pay – Working Time Regulations; holiday pay. Claimant sought holiday pay after working for respondent on a self employed basis. The tribunal held that he was a worker and entitled to receive holiday pay. The Employment Appeal Tribunal found that the tribunal had erred in their assessment of the evidence as to the circumstances of his employment which included that he worked under the CIS scheme, that he had and was free to work for other customers and had self employed accounts made up by an accountant. He did not qualify as a worker within the meaning of the regulations.

Judges:

The Honourable Lady Smith

Citations:

EATS/0004/05, [2005] UKEAT 0004 – 05 – 2009

Links:

Bailii, EAT

Employment, Scotland

Updated: 04 July 2022; Ref: scu.234464

Logan v Scottish Water: OHCS 1 Nov 2005

Judges:

Lord Osborne and Lady Cosgrove And Lord Philip

Citations:

[2005] ScotCS CSIH – 73, 2006 SC 178, [2005] CSIH 73

Links:

Bailii, ScotC

Citing:

Cited – Ocean Leisure Ltd v Westminster City Council LT 31-Dec-2003
LT COMPENSATION – injurious affection – hoardings erected in street during construction works outside shop premises – preliminary issue – whether claim under Compulsory Purchase Act 1965 s 10 valid – held . .

Cited by:

Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land, Damages

Updated: 04 July 2022; Ref: scu.234483

Hilton UK Hotels Ltd v McNaughton: EAT 20 Sep 2005

EAT Equal Pay Act – Article 141 – Damages/compensation
The claimant instituted a claim on the ground that she had been excluded from the respondents’ pension scheme during a period of part-time employment. The Employment Tribunal determined, as a preliminary issue, that a compromise agreement entered into between the parties did not have the effect of preventing the claimant from advancing her claim, considering the claimant’s solicitor’s lack of knowledge that the claimant had had a period of part-time employment as a key issue. The Employment Appeal Tribunal disagreed with the Employment Tribunal’s assessment of the claimant’s solicitor’s knowledge as being a key issue but found that, properly interpreted, the compromise agreement did not exclude the claim being advanced.

Judges:

Lady Smith

Citations:

[2005] UKEAT 0059 – 04 – 2009, EATS/0059/04

Links:

Bailii, EAT

Employment, Scotland

Updated: 04 July 2022; Ref: scu.234467

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 financial redress for his suffering.
Held: The case could not be dismissed for irrelevancy.
Lady Paton said: ‘In the present case, I have ultimately concluded that the reasoning of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215, the developing jurisprudence relating to the concept of a non-delegable duty of care in certain contexts, and underlying policy reasons, make it necessary for the courts to recognise the existence of a common law non-delegable duty of care on the part of a government body such as that represented by the eighteenth defender in respect of children allocated by the government to government-created residential schools such as St. Ninian’s. Such a non-delegable duty of care may be particularly relevant where it is not possible to establish more traditional liability such as direct or vicarious liability. In the context of a non-delegable duty of care, liability may arise even where there has been no fault on the part of the government body.
In reaching that conclusion, I have not overlooked the concerns expressed by Gleeson C.J., Callinan J., and Gummow and Hayne J.J. in Lepore, when they point out that an unrestricted development of the concept of a non-delegable duty of care could result in an unacceptable extension of liability. I also accept the force of Lord Bridge’s observations in D and F Estates Ltd v Church Commissioners for England [1989] 1 A.C. 177, at pages 210D-E. However it seems to me that, in the context of abuse by staff of inmates of residential establishments, those concerns and observations are met and answered by the guidelines laid down by the House of Lords in Lister v Hesley Hall Ltd [2002] A.C.215′ and
‘the underlying policy reasons referred to in paragraph [113] above include a perception that it is unacceptable for a government body responsible for a system of residential schools to have no liability for abuse inflicted on pupils by staff whose task it is to care for, supervise, or instruct those pupils, on the technical ground that certain functions (such as entering into contracts of employment with members of staff) have been delegated to others such as unpaid members of the community performing what might be seen as civic duties. If the obvious link of employer-employee is not clearly available in relation to the government body, then the pupil is left to attempt to recover damages in respect of injuries suffered at the hands of those placed in authority over him, from others fulfilling certain functions within the system. There is no reason in principle or precedent why a government body should in such circumstances be free of liability for abuse in a situation such as is envisaged in Lister – that is, where there is a close connection between the work which the staff were engaged to perform and the type of abuse inflicted. In such circumstances, the concept of a non-delegable duty of care at common law is in my view appropriate, and would be fair, just and reasonable to impose. The medical context offers a useful parallel, in particular the dicta of Lord Denning in Cassidy v Ministry of Health [1951] 2 K.B. 343; the observations of Lord Phillips M.R. at paragraph 63 of A v Ministry of Defence [2004] EWCA Civ 641; and the views of Mason J. in Introvigne, referred to in paragraphs [23] and [25] of New South Wales v Lepore.’

Judges:

Lady Paton

Citations:

[2005] ScotCS CSOH – 121

Links:

Bailii, ScotC

Cited by:

Cited – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
See Also – 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 . .
Cited – Woodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
Lists of cited by and citing cases may be incomplete.

Scotland, Personal Injury, Education, Negligence

Updated: 04 July 2022; Ref: scu.230233

Tonner and Another v Reiach and Hall: OHCS 5 Aug 2005

Judges:

Lady Smith

Citations:

[2005] ScotCS CSOH – 103

Links:

Bailii, ScotC

Cited by:

See Also – 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 . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 03 July 2022; Ref: scu.229395

Salamis (Marine and Industrial) Limited v Douglas Forbes: OHCS 14 Jul 2005

Judges:

Lord Hamilton And Lord Marnoch And Lord Reed

Citations:

[2005] ScotCS CSIH – 57

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Robb v Salamis (M and I) Limited OHCS 16-Mar-2005
. .

Cited by:

See Also – 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 . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 03 July 2022; Ref: scu.229407

Pratt v the Scottish Ministers: OHCS 4 May 2005

Judges:

Lord Brodie

Citations:

[2005] ScotCS CSOH – 59

Links:

Bailii, ScotC

Citing:

Cited – Barber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .
Lists of cited by and citing cases may be incomplete.

Scotland, Personal Injury

Updated: 03 July 2022; Ref: scu.229460

Bain v Hugh LS McConnell Ltd: 1991

The court discussed procedures to correct fundamental miscarriages of justice.

Citations:

1991 SLT 691

Jurisdiction:

England and Wales

Cited by:

Cited – Alexander Cameron (Ap) v Ian Macintyre Gibson, As Executor Dative of the Late Dugald Macintyre and Another SCS 2-Dec-2003
An adoption order had been made, but at the time, the adopted child was over the maximum age. Application was made to set it aside.
Held: Adoption orders could not be set aside save for where some fraud could be demonstrated to have been . .
Lists of cited by and citing cases may be incomplete.

Scotland, Litigation Practice

Updated: 03 July 2022; Ref: scu.194032

Hill v General Accident Fire and Life Assurance Corporation Plc: SCS 13 Aug 1998

Judges:

Lord Hamilton

Citations:

[1998] ScotCS 10

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Mihlenstedt v Barclays Bank International CA 1989
The company’s pension scheme provided that the trustees were to form an opinion as to the employee’s ability or otherwise to work. The plaintiff sought payment of an ill-health pension under the Bank Pension Scheme.
Held: A pension scheme . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 03 July 2022; Ref: scu.170456

Daljit Singh v The Secretary of State for the Home Department: SCS 20 Nov 1998

Judges:

Lady Cosgrove

Citations:

[1998] ScotCS 72

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Petition of Daljit Singh v The Right Honourable Jack Straw, MP for Judicial Review SCS 7-Jan-2000
The point made by Collins J in Chugtai may be particularly relevant where ‘a question of credibility arises which has to be resolved by an adjudicator”. . .
Lists of cited by and citing cases may be incomplete.

Scotland, Immigration

Updated: 03 July 2022; Ref: scu.169756

Brixey v Lynas: HL 2 Jul 1996

Delay after a hearing will increase the reluctance of an appellate court to interfere with the decision of a court on the evidence.

Citations:

1996 SLT 908, 1996 SC (HL) 1, [1996] UKHL 17

Links:

Bailii

Citing:

Appeal from – Brixey v Lynas 1994
‘However difficult it may be, the Court must as we have mentioned take a long term view in relation to the interests of a child. We agree with what is said in Wilkinson at page 212 (Wilkinson and Norrie: The Law Relating to Parent and Child in . .

Cited by:

Cited – Sanderson v McManus HL 6-Feb-1997
An order had been made refusing an unmarried father access to his child by the court after evidence that it would not be in the child’s best interests. The father appealed.
Held: The father could not appeal on a question of fact alone. There . .
Lists of cited by and citing cases may be incomplete.

Scotland, Children

Updated: 01 July 2022; Ref: scu.229104

Scott and Co v Richardson: EAT 26 Apr 2005

EAT REASON FOR DISMISSAL
The Tribunal erred in its approach to substantial other reason (contrary to Hollister, Banerjee, Harper and Gilham) by expressing its own view as to the commercial decision leading to the business re-organisation requiring alteration to the terms and conditions of the Applicant’s employment, rather than addressing the employer’s reasons. It consequently found the decision unfair due to lack of a statutory reason, and prevented proper consideration (in the alternative) of reasonableness. Conclusion that dismissal was for a substantial other reason substituted, and the issue as to fair dismissal remitted, and to a different Tribunal.

Judges:

The Honourable Mr Justice Burton President

Citations:

EATS/0074/04, [2005] UKEAT 0074 – 04 – 2604

Links:

Bailii

Cited by:

Cited – Willow Oak Developments Ltd. (T/A Windsor Recruitment) v Silverwood and others CA 25-May-2006
The employer appealed a finding that he had been unreasonable in seeking to vary the employment contracts of his staff by adding post employment restrictive covenants, and that the consequent dismissals were unfair. Copies of the new contracts had . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 30 June 2022; Ref: scu.225208

Barras v Aberdeen Steam Trawling and Fishing Co: HL 17 Mar 1933

The court looked at the inference that a statute’s draughtsman could be assumed when using a phrase to rely on a known interpretation of that phrase.
Viscount Buckmaster said: ‘It has long been a well established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it.’

Judges:

Viscount Buckmaster, Lord Russell of Killowen,Lord Macmillan

Citations:

[1933] UKHL 3, (1933) 45 Ll L Rep 199, [1933] All ER Rep 52, 1933 SC (HL) 21, [1933] AC 402, 1933 SLT 338

Links:

Bailii

Statutes:

Merchant Shipping (International Labour Conventions) Act, 1925 1

Jurisdiction:

England and Wales

Cited by:

Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
Explained – Regina v Chard HL 1983
The defendant appealed his conviction which had been obtained but based upon the evidence of a ‘super-grass’. His appeal failed, but the witness then withdrew his evidence. The matter was referred back to the court under the section, which then . .
Cited – Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints HL 30-Jul-2008
The House considered whether certain properties of the Church were subject to non-domestic rating. Various buildings were on the land, and the officer denied that some fell within the exemptions, and in particular whether the Temple itself was a . .
Cited – Adorian v The Commissioner of Police of the Metropolis CA 23-Jan-2009
The claimant received injuries when arrested. He was later convicted of resisting arrest. The defendant relied on section 329 of the 2003 Act. The claimant said that the force used against him was grossly disproportionate. The commissioner appealed . .
Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Cited – Carey v HSBC Bank plc, Yunis v Barclays Bank plc and similar QBD 23-Dec-2009
(Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give . .
Applied – BBC Scotland v Souster SCS 7-Dec-2000
English and Scottish are Separate Racial Groups
The English and Scottish peoples are recognised as separate racial groups. Discrimination on the basis that someone was English or Scottish was therefore discrimination for the purposes of the 1976 Act. Since Parliament had not amended or defined . .
Cited – ZH and CN, Regina (on The Applications of) v London Boroughs of Newham and Lewisham SC 12-Nov-2014
The court was asked whether the 1977 Act required a local authorty to obtain a court order before taking possession of interim accommodation it provided to an apparently homeless person while it investigated whether it owed him or her a duty under . .
Cited – Routier and Another v Revenue and Customs CA 16-Sep-2016
Executors appealed against a decision that a residual gift in a will was not charitable and that it was therefore subject to Inheritance Tax arguing that the section if construed in this way was an unlawful restriction on the free movement of . .
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .
Cited – Lalchan, Regina v CACD 27-May-2022
Conviction withoiut required Consent was Unsafe
Whether a conviction for an offence which requires the consent of the Attorney General before the proceedings are instituted can stand when no such consent was obtained.
Held: The appellant’s arguments were well-founded and his conviction on . .
Lists of cited by and citing cases may be incomplete.

Scotland, Employment, Transport, Litigation Practice

Leading Case

Updated: 30 June 2022; Ref: scu.279695

Robert Lord Blantyre, and George Season of Barnes Esq; v Mr John Currie, Minister of Haddington: HL 1 Jun 1714

Teird Court, Minister’s Stipend. – A Parish bring disjoined the stipend formerly modified upon the whole, a allocates upon the original remaining parish, notwithstanding the use of payment had remained for so years, and the same after the disjunction as before.
It was not necessary to call the heritors of the new parish, as parties.
It was no sufficient defence, that the stipend still remaining was above the minimum setteled by the parliament.
A stipend is objected to as above the maximum of 1633, c. 19. but this stipend is allocated and decreed to be paid.

Citations:

[1714] UKHL Robertson – 88, (1714) Robertson 88

Links:

Bailii

Jurisdiction:

Scotland

Ecclesiastical

Updated: 29 June 2022; Ref: scu.553474

McFarlane v Scottish Borders Council: OHCS 3 Mar 2005

Judges:

Sir David Edward

Citations:

[2005] ScotCS CSIH – 23, 2005 SLT 359

Links:

Bailii, ScotC, ScotC

Cited by:

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

Scotland, Negligence

Updated: 29 June 2022; Ref: scu.223407

ICL Plastics Ltd and Others, Re Application for Judicial Review: SCS 11 Mar 2005

The applicants were concerned at the decision to exclude them from their premises to investigate the cause of an explosion leading to the collapse of the factory.

Judges:

Lord McEwan

Citations:

[2005] ScotCS CSOH – 35

Links:

Bailii, ScotC

Cited by:

See Also – David T Morrison and Co Ltd v ICL Plastics Ltd and Others SCS 9-Mar-2012
Outer House – Opinion – In May 2004 an explosion at the defenders factory caused nine deaths. A pipeline carrying LPG gas had not been assessed for risks. Morrison owned neighbouring premises which were damaged. They began an action for damages. The . .
See Also – David T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Another SCS 14-Mar-2013
Extra Division – Inner House – An explosion at the defenders’ neighbouring premises had damaged those of the pursuer. The defenders now appealed against a finding that the claim was out of time calculated from the time when it had sufficient . .
See Also – David T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Others SC 30-Jul-2014
The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Personal Injury

Updated: 29 June 2022; Ref: scu.223388

Thomas Dagg and Son Ltd v Taycove Limited Dickensian Property Co Ltd: ScSf 20 Jan 2005

Judges:

Sheriff Principal E.F. Bowen

Citations:

[2005] ScotSC 7

Links:

ScotC, Bailii

Citing:

Cited – Alexander Ward and Co Ltd v Samyang Navigation Co Ltd HL 1975
The House explained the distinction between an arrestment to found jurisdiction and an arrestment on the dependence. The purpose of the latter was to freeze the subject arrested in the hands of the common debtor or in the case of a ship to prevent . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 29 June 2022; Ref: scu.222441

Moncrieff and Another v Jamieson and others: IHCS 4 Feb 2005

Judges:

Lord Hamilton And Lord Philip And Lord Marnoch

Citations:

[2005] ScotCS CSIH – 14, 2005 SLT 225

Links:

ScotC, Bailii, ScotC

Jurisdiction:

Scotland

Cited by:

Appeal from – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 29 June 2022; Ref: scu.222401