Category: Scotland

BBC, Petitioners (No 2): HCJ 13 Jun 2000

A ban on the televising of the Lockerbie trial was not a breach of the broadcasters rights under article 10. The fact that arrangements had been made for the trial to be relayed by television under strict conditions to relatives of the deceased, but not for general use was not determinative. The exercise by the Lord Advocate after discussion with the US government of his discretion to allow such transmission, had not been demonstrated to give rise to a devolution issue.

Citations:

Times 13-Jun-2000

Statutes:

European Convention on Human Rights

Citing:

See Also – BBC, Petitioners HCJ 11-Apr-2000
The absence of a jury from a criminal trial was not sufficient of itself to set aside the rule against the broadcasting of criminal proceedings. To set aside the rule, the onus was on the broadcaster to justify the departure from the rule and to . .
Lists of cited by and citing cases may be incomplete.

Media, Human Rights, Scotland

Updated: 18 May 2022; Ref: scu.78301

Bank of Scotland v Dunedin Property Investment Co Ltd: OHCS 16 May 1997

The cost of an interest rate swap brokerage agreement was not covered by an indemnity against ‘all costs charges and expenses incurred’.

Citations:

Times 16-May-1997, 1998 SC 657

Citing:

Appealed to – Bank of Scotland v Dunedin Property Investment Co Ltd IHCS 24-Sep-1998
Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs. . .

Cited by:

Appeal from – Bank of Scotland v Dunedin Property Investment Co Ltd IHCS 24-Sep-1998
Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs. . .
See Also – The Governor and Company of the Bank of Scotland v Dunedin Property Investment Company Ltd OHCS 8-Jun-1999
. .
Lists of cited by and citing cases may be incomplete.

Financial Services, Contract, Scotland

Updated: 18 May 2022; Ref: scu.78161

Bank of Scotland v Dunedin Property Investment Co Ltd: IHCS 24 Sep 1998

Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs.

Judges:

Lord President (Rodger

Citations:

Times 24-Sep-1998, 1998 SC 658

Citing:

Appeal from – Bank of Scotland v Dunedin Property Investment Co Ltd OHCS 16-May-1997
The cost of an interest rate swap brokerage agreement was not covered by an indemnity against ‘all costs charges and expenses incurred’. . .

Cited by:

Appealed to – Bank of Scotland v Dunedin Property Investment Co Ltd OHCS 16-May-1997
The cost of an interest rate swap brokerage agreement was not covered by an indemnity against ‘all costs charges and expenses incurred’. . .
Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
See Also – The Governor and Company of the Bank of Scotland v Dunedin Property Investment Company Ltd OHCS 8-Jun-1999
. .
Cited – Profile Software Ltd v Becogent Ltd OHCS 16-Feb-2005
The pursuers claimed for breach of copyright and of a software licence. The defendants disputed the title or right of the pursuers to claim.
Held: The assignation of the rights in the software carried with it the rights to enforce intellectual . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract, Scotland

Updated: 18 May 2022; Ref: scu.78162

In Re AR (An Order Under The Child Abduction And Custody Act 1985): SCS 17 Jun 2014

The two girls were with their mother in Scotland. The father, living in France, sought their return to France:
Held: The court granted the father’s application. The Lord Ordinary: ‘After considering all the relevant evidence I am satisfied that the children had not immediately before 20 November 2013 lost their habitual residence in France. They had both been born there and lived there in family with their parents until 26 July. This was a French family living in France. There is nothing which happened thereafter which persuades me that they had ceased to be habitually resident in France. I conclude from the evidence and productions presented that the stay of the respondent and the two children in Scotland was to be of limited duration, consisting of the period of her maternity leave. I do not regard the sale of the family home in Narbonne as evidencing a joint intention to leave France for good. I am not persuaded that there was a joint decision to uproot themselves from France and relocate permanently to Scotland. The petitioner has his own expanding business in Narbonne, for which he relies on his livelihood (sic) and in order to maintain the respondent and children. He speaks little or no English. I reject as fanciful any suggestion that he intended to set up a business in Scotland. That would have involved abandoning his established business in France and attempting to set up a business in a country where he did not speak the language and had no obvious prospect of succeeding. He continued to live and work in France after the respondent and children came to live in Scotland, although he visited them regularly. The respondent and children returned to France on two occasions after their move to Scotland. Certain of the children’s belongings were in storage in France. The lease of the property in which the respondent and children were living in Scotland was in her name alone. Nothing in the communications between the parties indicates a joint intention to uproot themselves from France and relocate permanently to Scotland.’

Citations:

Unreported, 17 June 2014

Statutes:

Child Abduction And Custody Act 1985

Cited by:

Appeal from – AR, Re An Order Under The Child Abduction and Custody Act 1985 SCS 14-Nov-2014
(Extra Division, Inner House – Opinion of Lord Malcolm) – appeal in application for order of return of two children to their father in France. The partis disputed whether Scotland had become habitually resident in Scotland, and also whether the . .
At Outer House – AR v RN (Scotland) SC 22-May-2015
The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of . .
Lists of cited by and citing cases may be incomplete.

Children, Scotland

Updated: 18 May 2022; Ref: scu.566222

Jamieson v Northern Electricity Supply Corp (Private) Ltd: 1970

It was argued that there had been an implied submission to the Zambian courts by an employee because the contract of employment was entered into in, and to be performed in Zambia, and assumed to be governed by Zambian law, and that a Azambian judgement on the matter should be enforced.
Held: Lord Johnston (at 116) took the view that a submission was not lightly to be implied, and could not be implied from a conjunction of those factors. Registration of the Zambian judgment was set aside because the 1933 Act did not apply to Zambia.

Judges:

Lord Johnston

Citations:

1970 SLT 113

Cited by:

Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Scotland, Jurisdiction

Updated: 18 May 2022; Ref: scu.565131

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 meaning of section 40(1) of the 1988 Act.

Citations:

1991 SC (HL) 1

Statutes:

Administration of Justice (Scotland) Act 1972 3, Court of Session Act 1988 40

Jurisdiction:

Scotland

Cited by:

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

Constitutional

Updated: 18 May 2022; Ref: scu.526003

Creditors of Wamphray v Lady Wamphray: 1675

An advocate was not bound to disclose ‘any private advice or secret of his calling or employment’

Citations:

(1675) Mor 347

Cited by:

Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.

Scotland, Legal Professions

Updated: 18 May 2022; Ref: scu.470881

Armour v Glasgow Royal Infirmary: 1909

Lord Ordinary, Lord Skerrington said that in the ordinary case the action could be brought only at the instance of the trustees. But the testamentary trustees had been called as defenders, and concurred with the Infirmary in maintaining that the money was properly paid. Consequently in those circumstances ‘the pursuers have a good and sufficient title to maintain this action to the effect of demanding that the money shall be repaid to the trustees.’

Citations:

1909 SC 916

Jurisdiction:

Scotland

Cited by:

Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 May 2022; Ref: scu.415971

Taft v Clyde Marine Motoring Co Ltd: 1990

Judges:

Lord Dervaird

Citations:

1990 SLT 170

Jurisdiction:

Scotland

Cited by:

Cited – Farstad Supply As v Enviroco Ltd and Another SCS 23-Apr-2008
(Outer House) The pursuers alleged that the defendant service company was responsible in negligence for damage by fire to its oil rig supply vessel. It was said that oil they had failed to clear was released by piping when opened flowing onto a hot . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 18 May 2022; Ref: scu.410554

The Sea Insurance Company Of Scotland v Gavin, And Others: SCS 1829

Under a policy insuring a brigantine ” at and from L. to S., and thence to ‘Barcelona, and at and from thence and two other ports in Spain, to a ‘port in Great Britain : ‘–held, that Saloe, a place lying in a bay, having warehouses and a jetty, with a depth of water sufficient for feluccas, but not for large ships, and a good roadsted anchorage where ships lie and are loaded by means of small craft ; having also a custom-house and officers is a ”port’ within the meaning of the policy.

Citations:

[1829] EngR 244, (1829) 4 Bligh NS PC 578, (1829) 5 ER 206

Links:

Commonlii

Scotland, Transport, Insurance

Updated: 18 May 2022; Ref: scu.322112

HM Advocate v Kidd: 1960

The court set out the conditions for finding insanity in criminal law.

Citations:

1960 SLT 82

Cited by:

Cited – Cardle v Mulrainey HCJ 1992
The defendant drank lager into which a third party had put amphetamine. He then tried to start vehicles belonging to others with the intention of taking them away. He also took some property from one of the vehicles. The sheriff acquitted him. The . .
Lists of cited by and citing cases may be incomplete.

Scotland, Crime

Updated: 18 May 2022; Ref: scu.272897

Campbell v The United Kingdom: ECHR 25 Mar 1992

The applicant complained about the compatibility with the European Convention of the Prisons rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . . and it shall be within the discretion of the Governor to stop any letter if he considers that the contents are objectionable.’
Held: The interference with the applicant’s correspondence violated article 8. ‘Admittedly, as the Government pointed out, the borderline between mail concerning contemplated litigation and that of a general nature is especially difficult to draw and correspondence with a lawyer may concern matters which have little or nothing to do with litigation. Nevertheless, the Court sees no reason to distinguish between the different categories of correspondence with lawyers which, whatever their purpose, concern matters of a private and confidential character. In principle, such letters are privileged under Article 8. This means that the prison authorities may open a letter from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose. The letter should, however, only be opened and should not be read. Suitable guarantees preventing the reading of the letter should be provided, eg opening the letter in the presence of the prisoner. The reading of a prisoner’s mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature. What may be regarded as ‘reasonable cause’ will depend on all the circumstances but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication was being abused.’

Citations:

13590/88, (1992) 15 EHRR 137, [1992] ECHR 41

Links:

Worldlii, Bailii

Statutes:

Prison (Scotland) Rules 1952 (SI 1952/565) 74(4), European Convention on Human Rights 8

Citing:

Cited – Leech v Secretary of State for Scotland SCS 1991
The rule which allowed the prisons to read correspondence between an inmate and his legal adviser if legal proceedings had not yet been commenced was upheld as valid. . .

Cited by:

Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Applied – Regina v Secretary of State Home Department, ex parte Leech (No 2) CA 20-May-1993
Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Scotland

Updated: 17 May 2022; Ref: scu.165195

Allied London and Scottish Properties Plc v Riverbrae Construction Ltd: OHCS 12 Nov 1999

An adjudicator who acts under the Scheme upon the written submission of the parties and without any oral hearing was not able to consider making an order for payment of the award by installments where neither party had raised that issue in their written submissions. He was not required by the scheme to consider such a procedure.

Citations:

Times 12-Nov-1999

Statutes:

Housing Grants Construction and Regeneration Act 1996 108

Construction, Scotland

Updated: 17 May 2022; Ref: scu.77760

Allied Domecq Spirits and Wine Ltd v Murray Mcdavid Ltd: SCS 9 Dec 1997

Old Trade Mark infringement cases are to be viewed only with great care; on balance of convenience, the use of trade marked place name is to be allowed.

Citations:

Times 09-Dec-1997

Statutes:

Trade Marks Act 1994 11(2)(b)

Jurisdiction:

Scotland

Intellectual Property, Scotland

Updated: 17 May 2022; Ref: scu.77754

Lord Advocate v Lord Blantyre: HL 1879

The defender claimed ownership of land based on possession from time immemorial of foreshore and banks in the River Clyde of some 5 miles and 2 miles respectively in length and spread over some 750 acres.
Held: Lord Blackburn said: ‘Every act shewn to have been done on any part of that tract by the barons or their agents which was not lawful unless the barons were owners of that spot on which it was done is evidence that they were in possession as owners of that spot on which it was done. No one such act is conclusive, and the weight of each act as evidence depends on the circumstances; one very important circumstance as to the weight being, whether the act was such and so done that those who were interested in disputing the ownership would be aware of it. And all that tends to prove possession as owners of parts of the tract tends to prove ownership of the whole tract; provided there is such a common character of locality as would raise a reasonable inference that if the barons possessed one part as owners they possessed the whole, the weight depending on the nature of the tract, what kind of possession could be had of it, and what the kind of possession proved was. This is what is very clearly explained by Lord Wensleydale (then Baron Parke) in Jones v Williams. And as the weight of evidence depends on rules of common sense, I apprehend that this is as much the law in a Scotch as in an English Court. And the weight of the aggregate of many such pieces of evidence taken together is very much greater than the sum of the weight of each such piece of evidence taken separately.’

Judges:

Lord Blackburn

Citations:

(1879) 4 App Cas 770

Jurisdiction:

Scotland

Citing:

Cited – Jones v Williams ExcC 1837
A four-judge of the Court was asked as to the admissibility of evidence in a case as to trespass upon the bed of a river where title was uncertain and where the dispute was whether the claimant or defendant owned the very part of land upon which the . .

Cited by:

Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Cited – Lord Advocate v Lord Lovat 1880
Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in . .
Cited – Higgs v Nassauvian Ltd PC 1975
A claim was made for possession of two plots of land, one some 92 and the other some 12 acres. The land was part arable, part pine barren and not fenced or otherwise enclosed.
Held: Sir Harry Gibbs said: ‘It is clearly settled that acts of . .
Cited – Barton v The Church Commissioners for England ChD 15-Dec-2008
The commissioners claimed a right by prescription to all fish to be taken in a stretch of the River Wye. The claimant was to moor a barge on the river.
Held: The court explained the nature and legal status of fisheries in the law going back to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.267380

Kelly v Monklands District Council: 1986

A local authority’s housing duties may be owed to a child if that child is living independently of its parents.

Citations:

1986 SLT 169

Cited by:

Cited – Royal Borough of Kingston Upon Thames v Prince and Another CA 2-Dec-1998
The Borough’s tenant had died. His wife and daughter had lived with him, but the mother not for long enough to succeed to his tenancy. The daughter (aged thirteen) claimed to have done so having lived with him for three years.
Held: The 1985 . .
Lists of cited by and citing cases may be incomplete.

Scotland, Housing, Children, Local Government

Updated: 17 May 2022; Ref: scu.259630

Brown v North British Steel Foundry Ltd: OHCS 1968

The 1954 Act passed on 4 June 1954 but was not to affect any action or proceeding if the cause of action arose before that date. The Lord Ordinary found that the pursuer who sought damages for pneumoconiosis did not begin to suffer from until 1955. But the pursuer contended that the injury had been done to his lungs by 1949 because he had been inhaling dangerous dust for some years before that and, as subsequent events showed, he was susceptible to pneumoconiosis in 1949. So the cause of action had arisen at that date. The First Division of the Court of Session rejected that argument.
Held: Lord President Clyde said that there was no cause of action in 1949 and added: ‘To create a cause of action, injuria and damnum are essential ingredients. In the present case there is no evidence of any injuries to the workman’s lungs in 1949. He had then merely a deposit of dust in his lungs, which might or might not subsequently create an injury. But, in addition, he had then sustained no damnum. He could not then have been awarded damages for any loss, because at that stage he had sustained no loss of wages and had suffered none of the discomforts and disabilities which, he avers, followed upon the onset of pneumoconiosis and which in fact flowed from the outbreak of that disease in 1955.’

Judges:

Lord President Clyde

Citations:

1968 SC 51

Statutes:

Law Reform (Limitation of Actions etc) Act 1954

Cited by:

Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Lists of cited by and citing cases may be incomplete.

Scotland, Personal Injury, Limitation

Updated: 17 May 2022; Ref: scu.260124

Hill v Maclaren: 1879

A servitude right must be exercised ‘so as to impose the least possible burden on the servient tenement, consistently with the fair enjoyment of this right by the dominant proprietor.’

Judges:

Lord Justice Clerk Moncreiff

Citations:

(1879) 6 R 1363

Cited by:

Cited – 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.

Land, Scotland

Updated: 17 May 2022; Ref: scu.260034

Highland Engineering Ltd v Thomson: 1972

The liquidation of a company is treated as the equivalent as bankruptcy to prevent the hardship of a debtor who is also a creditor being forced to pay in full, when he will come in only as a creditor for a dividend for his debt as a result of ranking pari passu with the ordinary creditors.

Citations:

1972 SC 87

Jurisdiction:

England and Wales

Cited by:

Cited – Melville Dundas Ltd and others v George Wimpey UK Ltd and others HL 25-Apr-2007
The appellant sought an interim payment for works of construction undertaken for the respondents under a JCT contract. The respondents contended that, having terminated the contract on their receivership, the contract and Act meant that the interim . .
Lists of cited by and citing cases may be incomplete.

Scotland, Company, Insolvency

Updated: 17 May 2022; Ref: scu.251596

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 previous accidents had occurred; nor whether the victims of these accidents had, or had not, been contributorily negligent. The test is objective and impersonal. Is the part such in its character, and so circumstanced in its position, exposure, method of operation and the like, that in the ordinary course of human affairs danger may reasonably be anticipated from its use unfenced, not only to the prudent, alert and skilled operative intent on his task, but also to the careless or inattentive worker whose inadvertent or indolent conduct may expose him to risk of injury or death from the unguarded part?’

Judges:

Lord Justice Clerk Cooper

Citations:

1945 JC 69

Statutes:

Factories Act 1937 14(1)

Cited by:

Cited – 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.

Health and Safety, Scotland

Updated: 17 May 2022; Ref: scu.247756

Muir v HM Advocate: 1933

The jury in a murder trial had not been directed on the possible verdict of culpable homicide on the ground of diminished responsibility.
Held: The defendant’s appeal was allowed. Lord Sands said: ‘A brutal crime had been committed, and a measure of mental weakness might have been regarded from quite a different angle if the jury were aware that its affirmance did not involve complete acquittal.’

Judges:

Lord Sands

Citations:

1933 JC 46

Jurisdiction:

Scotland

Cited by:

Cited – Regina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 May 2022; Ref: scu.243356

MacMillan v Wimpey Offshore Engineers and Constructors Ltd: 1991

Citations:

1991 SLT 515

Statutes:

Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976

Jurisdiction:

Scotland

Cited by:

Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Health and Safety

Updated: 17 May 2022; Ref: scu.243289

McGlennan v McKinnon: 1998

Citations:

1998 SLT 494

Jurisdiction:

Scotland

Cited by:

Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Lists of cited by and citing cases may be incomplete.

Torts – Other

Updated: 17 May 2022; Ref: scu.243291

McGuire v Kidston: ScSf 2002

Citations:

2002 SLT (Sh Ct) 66

Statutes:

Protection from Harassment Act 1997

Jurisdiction:

Scotland

Cited by:

Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Lists of cited by and citing cases may be incomplete.

Torts – Other

Updated: 17 May 2022; Ref: scu.243290

Watson-Towers Ltd v McPhail: 1986

The pursuer submitted a motion for summary judgment for the value of goods which had been supplied subject to a reservation of title clause. The pursuer’s evidence consisted of a letter from the defender making an offer expressed to be without prejudice but which attached a schedule listing the goods in its possession.
Held: The schedule was admissible because it was, on the true construction of the letter, not a ‘hypothetical admission or concession for the purpose of securing a settlement’ but a statement of fact.

Judges:

Lord Wylie

Citations:

1986 SLT 617

Cited by:

Followed – Daks Simpson Group plc v Kuiper 1994
The creditor sought summary judgment for an account for commissions earned. In a ‘without prejudice’ letter the defendant’s director said that he was prepared to accept that he had received such commissions in stated amounts.
Held: Lord . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract, Limitation

Updated: 17 May 2022; Ref: scu.243123

M v Kennedy: 1993

Competency of young child to give evidence.

Citations:

1993 SCLR 69

Jurisdiction:

Scotland

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.

Children

Updated: 17 May 2022; Ref: scu.237535

F v Kennedy (No. 1): 1993

The evidence of a child who is not a competent witness is not admissible.

Citations:

1993 SLT 1277

Jurisdiction:

Scotland

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.

Children, Evidence

Updated: 17 May 2022; Ref: scu.237537

Hamilton v Fife Health Board: 1993

A child was born but with injuries incurred while in utero alleged to have been caused by the negligence of the doctors attending the mother. The parents sued the health board for loss of the child’s society. The Board argued the action to be irrelevant as the child had not been a person for the purposes of the 1976 Act at the time when the injuries were sustained. The Lord Ordinary held that personal injuries could only be sustained by a person and that the child had not been a person at the relevant time. The pursuers reclaimed.
Held: Reversing the judgment of the Lord Ordinary, the case depended on the construction of section 1(1) of the Damages (Scotland) Act 1976, that there could be no liability until both damnum and iniuria concurred, but once the child was born and became a person the necessary concurrence was established and the child acquired the right to sue the person whose breach of duty resulted in its loss; and it followed that the defenders were liable to pay damages to the pursuers in accordance with section 1(1) of the 1976 Act.
Lord McCluskey said: ‘As the act or omission must be one giving rise to liability to pay damages, there can be no liability until both damnum and iniuria concur. There can be no liability to pay damages until there is a person in respect of whose loss the claim to damages arises.’
Lord Caplan said: ‘However the duty is not breached nor does a right of action arise at the point when the careless act is committed (assuming there were such an act). The duty which rests on a person charged with taking care is not the academic responsibility of not being negligent but rather the duty not to cause harm by negligence. The delict is only committed when the initial negligent act actually causes harm. That is to say the concurrence of iniuria and damnum is required. ‘

Citations:

1993 SC 369

Statutes:

Damages (Scotland) Act 1976 1(1)

Jurisdiction:

Scotland

Citing:

Cited – Watson v Fram Reinforced Concrete Co (Scotland) Ltd HL 1960
A workman had been injured through the breaking of a defective part in the machine with which he was working. He brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had . .
Cited – B v Islington Health Authority; De Martell v Merton and Sutton Health Authority CA 6-May-1992
A doctor’s duty of care to an unborn child is an established duty in common law despite some cases apparently to the contrary. Phillips J: ‘The duty in the law of negligence is not a duty to exercise reasonable care to avoid risk of causing injury. . .

Cited by:

Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 17 May 2022; Ref: scu.226699

Chalmers v HM Advocate: HCJ 1954

Where a defendant failed to prevent a statement being admitted in evidence, and sought to be able to challenge it again before the jury, this was a situation where logic must yield, since the jury cannot be asked to accept as an item of evidence a statement made by an accused, while being prevented from considering the circumstances under which it was made. So the jury must be able to take account of those circumstances in deciding what weight and value to attach to the confession.
The law must reconcile two principles: (1) that no accused person is bound to incriminate himself, and (2) that what an accused person says is admissible evidence against him, provided he says it freely and voluntarily.

Judges:

Lord Justice Clerk Thomson

Citations:

1954 JC 66

Jurisdiction:

Scotland

Cited by:

Cited – Regina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
Cited – Her Majesty’s Advocate v P SC 6-Oct-2011
(Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
Held: The admission of the . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 May 2022; Ref: scu.224425

Grampian Regional Council v City of Aberdeen District Council: 1984

The extinguishment of a private right is not a proper matter for a condition attached to a planning permission, even though a negative condition preventing development until a highway has been stopped up is unobjectionable.

Citations:

(1984) 47 PandCR 633, [1984] JPL 371

Cited by:

Cited – British Railways Board v Secretary of State for the Environment and Another HL 29-Oct-1993
Permission had been given for residential development of land provided that access was provided. The access specified was to be over land owned by the council. It was known that the Council would not allow such access. The land owner sought an order . .
Cited – London Borough of Bexley v Maison Maurice Ltd ChD 15-Dec-2006
The council had taken land by compulsory purchase in order to construct a dual carriageway. It then claimed that it had left undedicated a strip .5 metre wide as a ransom strip to prevent the defendant restoring access to the road.
Held: The . .
Cited – Nirah Holdings Ltd v British Agricultural Services Ltd and Another ComC 11-Sep-2009
The parties entered into an option agreement giving the claimant a right to purchase the defendant’s land. The consideration would be affected by the costs of complying with a section 106 agreement to construct local ancillary services. The parties . .
Lists of cited by and citing cases may be incomplete.

Planning, Scotland

Updated: 17 May 2022; Ref: scu.225279

Dick v Burgh of Falkirk: HL 1976

Their lordships were prepared to contemplate the idea of a defender owing a common law duty of care to the victim’s relatives.

Citations:

1976 SC (HL) 1

Jurisdiction:

Scotland

Cited by:

Not followed – Robertson v Turnbull HL 1982
. .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 16 May 2022; Ref: scu.224420

Kyle v P and J Stormonth Darling WS: 1992

Where a loss of opportunity which was the subject of a claim was part of the causal sequence which might or might not have led to the damnum or loss resulting from the injuria, the damnum lay not in the loss of opportunity but in the loss of the eye or the necrosis.

Judges:

Lord Prosser

Citations:

1992 SLT 264

Jurisdiction:

Scotland

Cited by:

Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 16 May 2022; Ref: scu.222508

Steel Stockholders (Birmingham) Ltd v Kirkwood: EAT 1993

The tribunal considered the use of the word ‘procedural’ in the Polkey, and doubted whether Lord Bridge could have meant to classify matters such as the choice of a pool for redundancy, or the adoption of criteria for selection as procedural as opposed to substantive: ‘In any given case, therefore, it is necessary to consider whether the unfairness can properly be classified as procedural or substantive.’

Judges:

Lord Coulsfield

Citations:

[1993] IRLR 515

Jurisdiction:

England and Wales

Citing:

Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .

Cited by:

Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
Cited – King v Eaton Ltd (No 2) IHCS 1998
Employees were made redundant. The tribunal held the dismissals to be unfair because that there had been no consultation worthy of the name with any of the employees and because it was impossible to decide whether the selection criteria had been . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 16 May 2022; Ref: scu.200300

McWhinney v British Coal Corporation: 1993

A 41 year old man claimed that as a result of an accident, he was able to walk only 50 yards at a time and that with the assistance of a stick, and who was described as being for all practical purposes unlikely to ever work again.

Citations:

1993 SLT 467

Jurisdiction:

England and Wales

Cited by:

Cited – Iseabal Emslie v Anne Bell OHCS 12-Aug-2004
The defender had driven into the back of the pursuer’s car, causing the injuries. She claimed that the accident had aggravated a pre-existing slight injury to her knee.
Held: The pursuer’s accounts of her injuries had not been entirely . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages, Scotland

Updated: 16 May 2022; Ref: scu.200618

Orr v Mitchell: 1893

Until the interest of the purchaser has been recorded or registered the seller remains vested in the real right. His relationship with the purchaser is controlled by the rights and obligations which were created by their contract. When the disposition is delivered the general rule is that it becomes the sole measure of the contracting parties’ rights if there is a dispute about the subject to which right has been acquired by the purchaser.

Citations:

(1893) 20 R (HL) 27

Jurisdiction:

England and Wales

Cited by:

Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 16 May 2022; Ref: scu.194223

Campbell v Dunoon HA: OHCS 1993

Citations:

[1993] IRLR 496

Jurisdiction:

Scotland

Citing:

Cited – Polkey v A E Dayton Services Limited CA 1986
The employee had been made redundant with no attempt at consultation and in breach of procedures.
Held: His claim of unfair dismissal was dismissed because even if the procedures had been followed, the result would have been the same. What . .

Cited by:

Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 16 May 2022; Ref: scu.194788

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.

Judges:

Lord Stott

Citations:

1973 SLT 153

Cited by:

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

Scotland

Updated: 16 May 2022; Ref: scu.186350

UCB Bank Plc v Dundas and Wilson: SCS 1990

It would not be competent for the Court of Session to restrict the pursuers’ entitlement to a fraction or percentage of the sums brought out as being payable in terms of the accounts, after they had been taxed by the Auditor.

Citations:

1990 1 SLT 90

Cited by:

Cited – Free and others v British Steel Plc and Another SCS 18-Jul-2003
(Outer House) The pursuer had sought damages from the defender, but failed to submit the claim for expenses. The defenders said they were prejudiced by the delay.
Held: ‘Comparing the prejudice the pursuers would suffer, were the motion to be . .
Lists of cited by and citing cases may be incomplete.

Scotland, Costs

Updated: 16 May 2022; Ref: scu.184713

Arcari v Dunbartonshire County Council: 1948

Judges:

Lord President Cooper

Citations:

1948 SC 62

Jurisdiction:

England and Wales

Citing:

Adopted – Harper v Inspector of Rutherglen 1903
Lord Trayner said: ‘Every judgment of an inferior Court is subject to review, unless such review is excluded expressly or by necessary implication’. . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 16 May 2022; Ref: scu.184724

Harper v Inspector of Rutherglen: 1903

Lord Trayner said: ‘Every judgment of an inferior Court is subject to review, unless such review is excluded expressly or by necessary implication’.

Judges:

Lord Trayner

Citations:

(1903) 6 F 23

Cited by:

Adopted – Arcari v Dunbartonshire County Council 1948
. .
Cited – Glasgow City Council v DH and Another IHCS 17-Jul-2003
Exclusion orders had been sought under the Act, but refused for non-compliance with procedures under the Act. New applications were made to different courts, and the applicant said it was not open to the Authorities to make the same application . .
Lists of cited by and citing cases may be incomplete.

Scotland, Litigation Practice

Updated: 16 May 2022; Ref: scu.184723

McFadyen v Annan: 1992

The accused, a police officer, was subject of a complaint by the person arrested of assault. The defendant complained that the delay in bringing charges (7 months) was excessive so as to be unfair.
Held: The question should be whether the delay would so prejudice the prospects of a fair trial to the extent that any such trial would be oppressive. A former, two stage, test was no longer to be followed. Delay before as well as after proceedings were begun could be looked at. In this case there was no such risk of prejudice from any delay.

Citations:

[1992] JC 53, [1992] CLY 5466, 1992 SLT 163

Citing:

Applied – Stuurman v HM Advocate 1980
The court was asked whether a fair trial could take place at all in the light of the pre-trial publicity.
Held: The court noted that the palliative of judicial directions can never be absolutely effective, but the judge had done what he could. . .
Overruled – Tudhope v McCarthy 1985
. .
Overruled – McGeown v HM Advocate 1989
. .
Overruled – Connachan v Douglas 1990
. .
Overruled – HM Advocate v Mechan 1991
. .

Cited by:

Cited – Dyer v Watson and Burrows PC 29-Jan-2002
Parties challenged the compliance of proceedings with the convention where there had been considerable delay.
Held: The reasonable detention provision (article 5(3)) and the reasonable time requirement (article 6(1)) conferred free-standing . .
Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice

Updated: 16 May 2022; Ref: scu.182771

Porter v Strathclyde Regional Council: 1991

The Inner House should not interfere with the Lord Ordinary’s apportionment of negligence except in exceptional circumstances which must demonstrate that ‘he has manifestly and to a substantial degree gone wrong’.

Citations:

1991 SLT 446

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: 16 May 2022; Ref: scu.559412

McCusker v Saveheat Cavity Wall Insulation Ltd: 1987

Judges:

Lord Justice-Clerk Ross

Citations:

1987 SLT 24

Citing:

Cited – Beattie v Halliday 4-Feb-1982
The court considered a contribution between joint wrongdoers, where the court is concerned with the comparative responsibility of persons who are both liable for the damage.
Held: Lord Justice-Clerk Wheatley said: ‘An appeal court will not . .

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

Updated: 16 May 2022; Ref: scu.559414

Beattie v Halliday: 4 Feb 1982

The court considered a contribution between joint wrongdoers, where the court is concerned with the comparative responsibility of persons who are both liable for the damage.
Held: Lord Justice-Clerk Wheatley said: ‘An appeal court will not lightly interfere with an apportionment fixed by the judge of first instance. It will only do so if it appears that he has manifestly and to a substantial degree gone wrong.’

Judges:

Lord Justice-Clerk Wheatley

Citations:

Unreported 4 February 1982

Cited by:

Cited – McCusker v Saveheat Cavity Wall Insulation Ltd 1987
. .
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, Litigation Practice

Updated: 16 May 2022; Ref: scu.559415

Brownlee’s Executrix v Brownlee: 1908

A party claiming that a property transfer was by way of gift has the onus of displcing the presumption in law against donation.

Citations:

1908 SC 232

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 . .
Lists of cited by and citing cases may be incomplete.

Scotland, Family

Updated: 15 May 2022; Ref: scu.540460

Duke of Portland v Wood’s Trustees: 1926

Judges:

Lord President Clyde

Citations:

1926 SC 640

Cited by:

Cited – L Batley Pet Products Ltd v North Lanarkshire Council SC 8-May-2014
The appellant was mid-landlord and the respondent the sub-tenant under a now-expired lease. The appellant had wanted repairs to be executed but told the tenant informally. The tenant argued that the lease required formal notice to create an . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 15 May 2022; Ref: scu.526348

Sinclair Collis Ltd v Lord Advocate: SCS 2012

The pursuer, a cigarette vending machine operator, challenged section 9 of the 2010 Act saying that the section was incompatible with its rights under article A1P1 of the Convention, and with article 34 of the Treaty on the Functioning of the European Union.
Held: The claim failed.

Citations:

[2012] CSIH 80

Statutes:

European Convention on Humana Rights A1P1

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Scotland, European, Commercial, Human Rights

Updated: 15 May 2022; Ref: scu.468782

Cameron v HM Advocate: 1991

Citations:

1991 JC 252

Cited by:

Cited – Fraser v Her Majesty’s Advocate SC 25-May-2011
The defendant appealed against his conviction for murder, saying that the prosecution had failed to disclose certain matters.
Held: The appeal succeeded, the conviction was quashed and the case remitted to the Scottish courts to consider . .
Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice

Updated: 15 May 2022; Ref: scu.440846

Neill v Greater Glasgow Health Board: 1994

Citations:

[1996] SC 185, [1994] SLR 673

Cited by:

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.

Scotland, Health and Safety

Updated: 15 May 2022; Ref: scu.440438

Muir v City of Glasgow Bank: HL 1878

The bank had failed as the result of a fraud perpertrated by its directors. The liability of the members was unlimited. Lord President Inglis said: ‘Persons becoming partners of a joint stock company, such as the Western Bank, and being registered as such, cannot escape from the full liabilities of partners either in a question with creditors of the company or in the way of relief to their copartners, by reason of the fact that they hold their stock of the company in trust for others, and are described as trustees in the register of partners and the other books and papers of the company.’

Judges:

Lord President Inglis

Citations:

(1878) 6 R 392

Jurisdiction:

Scotland

Cited by:

Applied – Elliot v Mackie and Sons Ltd; Elliot v Whyte 1935
Executors of the deceased founder of the company had executed transfers of shares in favour of two of their number and a third party to qualify them as directors of the company under the articles, the trustees and executors wanting adequate . .
Mentioned – Farstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .
Lists of cited by and citing cases may be incomplete.

Scotland, Company

Updated: 15 May 2022; Ref: scu.432931

Arthur Bell and Sons v Assessor for Fife: 1985

Lord Avonside said, with reference to the estimation of the annual value of subjects under the 1956 Act, that it was notorious that one must take a building according to its use at the time of the valuation.

Judges:

Lord Avonside

Citations:

[1965] RA 535

Statutes:

Valuation and Rating (Scotland) Act 1956

Cited by:

Cited – Multi-Link Leisure Developments Ltd v Lanarkshire Council SC 17-Nov-2010
The parties disputed the effect of an option clause in a lease, and particularly whether, when fixing the price, potential for development was to be included. The clause required the ‘full market value’ to be paid. The tenant appealed.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Rating

Updated: 15 May 2022; Ref: scu.426443

John Haig and Co v Boswell-Preston: 1915

A tenant may be able to retain rent where the landlord was in material breach of his duty under the lease to maintain fixed equipment.

Citations:

1915 SC 339

Cited by:

Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC 5-May-2010
The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .
Lists of cited by and citing cases may be incomplete.

Scotland, Landlord and Tenant

Updated: 15 May 2022; Ref: scu.410704

Council of the Law Society of Scotland v McKinnie (No 2) and Caledonian Railway Company v Glasgow Corporation: 1905

Citations:

1905, 7 F 1020

Cited by:

Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SCS 15-Feb-2008
The defenders had sold their business assets to the pursuers. The parties now disputed the sale terms, and in particular the calculation of a clause settling additional consideration.
Held: The court repelled the defenders’ pleas-in-law, . .
Lists of cited by and citing cases may be incomplete.

Scotland, Legal Professions

Updated: 15 May 2022; Ref: scu.410701

William Muir (Bond 9) Ltd v Lamb: EAT 1985

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

Citations:

[1985] IRLR 95

Statutes:

Employment Protection (Consolidation) Act 1978 74(4)

Cited by:

Cited – Lock v Connell Estate Agents EAT 10-May-1994
The employee had failed to meet targets in a difficult sales market. He was dismissed. The ET had found that the sales targets were impossible. The EAT considered what was the effect of his failure to appeal against his dismissal.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 15 May 2022; Ref: scu.402934

Ulhaq v HM Advocate: HCJ 1991

Citations:

1991 SLT 614

Cited by:

Cited – Kane v HM Advocate; MacAngus v HM Advocate HCJ 27-Jan-2009
The defendants appealed against convictions for culpable homicide. In each case they had supplied a drug to the victim who had then self-administered the drug and died as a consequence.
Held: The appeals failed. The court considered whether . .
Lists of cited by and citing cases may be incomplete.

Crime, Scotland

Updated: 15 May 2022; Ref: scu.332841

Visionhire Ltd v Britel Fund Trustees Ltd: 1991

Citations:

1991 SLT

Cited by:

Cited – Simmers v Innes HL 16-Apr-2008
The House was asked whether an option to purchase certain land had been validly exercised. The farm assets had been transferred into a company in order to generate cash. Mr Simmers was apparently gven a right for five years to purchase the business. . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 15 May 2022; Ref: scu.271071

Duncanson v South Ayrshire Council: 1999

A steel storage cabinet was held to be work equipment.

Citations:

1999 SLT 519

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 . .
Lists of cited by and citing cases may be incomplete.

Scotland, Health and Safety

Updated: 15 May 2022; Ref: scu.270711

Smith (Inspector of Taxes) v Woodhouse and Others; Fitzpatrick and Others v Commissioners of Inland Revenue: HL 18 Feb 1994

An allowance paid to a journalist by his employer to pay for newspapers he was to buy and read as part of his work was taxable under Sch E. It was not actually part of his job to read them.

Citations:

Times 18-Feb-1994, Independent 18-Feb-1994

Statutes:

Income and Corporation Taxes Act 1970 189(1)

Jurisdiction:

Scotland

Income Tax

Updated: 15 May 2022; Ref: scu.89315

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 fought any common law duty to take reasonable care in the course of their firefighting operations.

Judges:

Lord Macfadyen

Citations:

Times 03-Nov-1995, 1995 SLT 1362

Jurisdiction:

Scotland

Cited by:

Applied – 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 . .
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.

Negligence

Updated: 15 May 2022; Ref: scu.80157

Conti v Ueberseebank Ag: IHCS 15 Mar 2000

A former director of a company could apply to have it restored to the register of companies even though he had played a significant part in the decisions to wind the company up in the first place. The time for testing whether he had an appropriate grievance which might found an application was at the time of the application being made and not at any earlier time.

Citations:

Times 15-Mar-2000

Statutes:

Companies Act 1985 653

Citing:

Appeal from – Fabrizio Conti v Ueberseebank A G OHCS 2-Oct-1998
(Scotland) A company director and shareholder who had agreed with board’s decision to apply for company to be wound up could not later apply to set aside that application on the grounds that he was a person ‘aggrieved’ by that decision. . .

Cited by:

Appealed to – Fabrizio Conti v Ueberseebank A G OHCS 2-Oct-1998
(Scotland) A company director and shareholder who had agreed with board’s decision to apply for company to be wound up could not later apply to set aside that application on the grounds that he was a person ‘aggrieved’ by that decision. . .
Lists of cited by and citing cases may be incomplete.

Company, Scotland

Updated: 15 May 2022; Ref: scu.79468

The Lord Provost, Magistrates, and Council of The City of Edinburgh v North British Railway Co: SCS 12 May 1904

It was not possible that a public right of way ‘which it would be ultra vires to grant can be lawfully acquired by user’

Citations:

[1904] SLR 41 – 492

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 15 May 2022; Ref: scu.609965

Ellice’s Trustees v The Commissioners of The Caledonian Canal: SCS 28 Jan 1904

The commissioners of the canal did not have the power to grant a right of way which was not compatible with the exercise of their statutory duties, and that this also meant that no private right of way or servitude could arise by virtue of user of the land over many years by those claiming such a right of way

Citations:

[1904] SLR 41 – 260, (1904) 6 F 325

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 15 May 2022; Ref: scu.609891

Bovis Construction (Scotland) Ltd v Whatlings Construction Ltd: HL 19 Oct 1995

The managing contractors sought damages from a sub-contractor. The contract was on a printed form and in letters. A letter limited time related damages to pounds 100,000. The main contractors sought a much larger sum.
Held: A clause seeking to limit liability must be clear in what it restricts, and is to be read strictly. The sub-contractors had wholly failed to show that the clause could cover their repudiatory breach leading to a termination of the contract. Time was not relevant for this clause after the breach. Appeal dismissed.

Citations:

Gazette 24-Jan-1996, Times 19-Oct-1995, [1995] CLY 5569, 1995 SLT 1339

Jurisdiction:

England and Wales

Citing:

Applied – Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd HL 26-Nov-1981
Even though a shipowner who had carried cargo on deck was not entitled to rely on the exceptions to liability in his contract, a limitation clause was different and should not be construed by reference to the specially exacting standards applicable . .
Appeal from – Bovis Construction (Scotland) Ltd v Whatlings Construction Ltd OHCS 1994
Correspondence preceding a contract could be looked at to determine the circumstances in which a provision in the contract was intended to apply.
Lord President Hope said: ‘In my opinion the issue which has arisen between the parties in this . .
Lists of cited by and citing cases may be incomplete.

Contract, Construction, Scotland

Updated: 15 May 2022; Ref: scu.78513

Credit Lyonnais v George Stevenson and Co Ltd: 1901

Lord Kyllachy explained the relationship between a claim and a defence in the law of unjustified enrichment: ‘The money in question was paid in error under a mistake of fact. It was therefore reclaimable, unless (the pursuer’s remedy being equitable) there was an equitable defence to repetition.’

Judges:

Lord Kyllachy

Citations:

(1901) 9 SLT 93

Cited by:

Cited – Sempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
Lists of cited by and citing cases may be incomplete.

Damages, Scotland

Updated: 14 May 2022; Ref: scu.260131

McLaren v City of Glasgow Union Railway Co: 1878

The court considered the implication by necessity of an implied right of access for land on severance which would otherwise be landlocked.

Judges:

Lord Justice Clerk Moncreiff

Citations:

(1878) 5 R 1042

Cited by:

Cited – 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.

Land, Scotland

Updated: 14 May 2022; Ref: scu.260025

Steven v Broady Norman and Co: 1928

Citations:

1928 SC 351

Cited by:

Cited – Heaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 14 May 2022; Ref: scu.251632

Denvir v Denvir: 1969

Citations:

1969 SLT 301

Cited by:

Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Scotland, Trusts

Updated: 14 May 2022; Ref: scu.251490

Galloway v Galloway: 1929

Citations:

1929 SC 160

Cited by:

Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Scotland, Trusts

Updated: 14 May 2022; Ref: scu.251488

Dawsons Ltd v Bonnin: HL 1922

The House considered whether a provision was a warranty rather than a representation, allowing the contract to be avoided for its breach. It was an inadvertently inaccurate statement by the insured in the proposal form which was expressly incorporated in the policy, as was a clause which expressly rendered the policy void for material misstatement.
Held: The inaccuracy was found to be immaterial but a majority of the House decided that there could be no claim under the insurance.
Lord Haldane said: ‘It is clear that the answer was textually inaccurate. I think that the words employed in the body of the policy can only be properly construed as having made its accuracy a condition. The result may be technical and harsh, but if the parties have so stipulated, we have no alternative, sitting as a Court of justice, but to give effect to the words agreed on. Hard cases must not be allowed to make bad law . . It was a specific insurance, based on a statement which is made of foundational if the parties have chosen, however carelessly, to stipulate that it should be so. Both on principle and in the light of authorities such as those I have already cited, it appears to me that when the answers, including that in question, are declared to be the basis of the contract this can only mean that their truth is made a condition exact fulfilment of which is rendered by stipulation foundational to its enforceability.’
Lord Cave said: ‘But it is contended . . that the ‘basis’ clause is limited or qualified by the fourth condition on the back of the policy [relating to material misstatement’].
And it is argued that, having regard to this condition, a misstatement in the proposal does not avoid the policy unless it is a material misstatement. I do not take that view. The ‘basis’ clause and the fourth condition do not cover the same ground. The former includes promissory statements which are apparently not within the condition; and the condition covers misstatements and concealments outside the proposal with which the ‘basis’ clause is not concerned. I think the two clauses are independent and cumulative provisions, each of which must take effect’
Lord Dunedin said: ‘I think that ‘basis’ cannot be taken as merely pleonastic and exegitical of the following words, ‘and incorporated therewith’. It must mean that the parties held that these statements are fundamental – ie go to the root of the contract – and that consequently if the statements are untrue the contract is not binding’

Judges:

Lord Haldane, Lord Cave, Lord Dunedin

Citations:

[1922] SC (HL) 156, [1922] 2 AC 413

Jurisdiction:

England and Wales

Cited by:

Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Genesis Housing Association Ltd v Liberty Syndicate Management Ltd CA 4-Oct-2013
The housing association was to develop an estate of social housing, supported by an insurance guarantee. The insurance proposal contained a clause stating that the information in the proposal was to form the basis of the policy, and that the policy . .
Cited – Genesis Housing Association Ltd v Liberty Syndicate Management Ltd TCC 8-Nov-2012
Insurers had rejected a claim under the policy, saying that the proposal form had included a basis of insurance declaration warranted by the proposer, and that since it had named a main contractor different to the one named, there was no liability . .
Lists of cited by and citing cases may be incomplete.

Contract, Insurance, Scotland

Updated: 14 May 2022; Ref: scu.251141

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 instance they are founded either on universal custom or in the nature of the contract itself. If the condition is such that every reasonable man on the one part would desire for his own protection to stipulate for the condition, and that no reasonable man on the other part would refuse to accede to it, then it is not unnatural that the condition should be taken for granted in all contracts of the class without the necessity of giving it formal expression.’

Judges:

Lord McLaren

Citations:

1907 SC 1211

Cited by:

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

Scotland, Contract

Updated: 14 May 2022; Ref: scu.249910

Chapman v Aberdeen Construction Group: 1991

It having been conceded that contracts of service fell within section 15 of the 1977 Act, the court found that the question whether the contract was a consumer contract depended on the circumstances. Though the employee pursuer was to be regarded as a consumer in relation to his contract of employment with the defenders, the term consumer may not sit comfortably on an employee in relation to his work.

Judges:

Lord Caplan

Citations:

[1991] IRLR 505

Statutes:

Unfair Contract terms Act 1977 15

Cited by:

Cited – Brigden v American Express Bank Ltd 2000
A clause providing that the employer could dismiss an employee in the first two years of employment without implementing the disciplinary procedure was not void under the 1977 Act. Section 3 extended to contracts of employment and although the . .
Cited – Commerzbank Ag v Keen CA 17-Nov-2006
The bank had sought summary dismissal of a claim for non-payment of bonuses to the claimant a former employee, and now appealed refusal of its request for summary dismissal, saying that the claim had no prospect of success. The claimant said that . .
Lists of cited by and citing cases may be incomplete.

Contract, Employment, Scotland

Updated: 14 May 2022; Ref: scu.246222

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 their work’.

Judges:

Lord Justice General Normand

Citations:

1944 JC 1

Cited by:

Cited – 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.

Health and Safety, Scotland

Updated: 14 May 2022; Ref: scu.247760

Ayr Harbour Trustees v Oswald: 1883

The appellant trustees could not competently preclude themselves from exercising their powers under the Ayr Harbour Act in respect of certain land acquired by them for the purposes of that statute bearing in mind that their discretionary powers were such as to be capable of exercise whenever and as often as they considered it appropriate to exercise them in the public interest.
A statutory body had no power to alienate lands which it had acquired for a statutory purpose or to grant any right over such land which was inconsistent with its use for statutory purposes.

Citations:

(1883) 8 AC 623

Cited by:

Cited – Kilby v Basildon District Council Admn 26-Jul-2006
Tenants complained that the authority landlord had purported to vary a clause in his secure tenancy agreement which gave certain management rights to tenants.
Held: The powers to let on secure tenancies were governed by statute. The clause . .
Explained – Stourcliffe Estates Co Ltd v Bournemouth Corporation 1910
. .
Cited – Blake v Hendon Corporation CA 1962
Devlin LJ said: ‘For example, a man selling a part of his land might object to a refreshment pavilion on his boundary. Provided that the erection of a refreshment pavilion on that spot was not essential to the use of the land as a pleasure ground, . .
Cited – Smoke Club Ltd, Regina (on The Application of) v Network Rail Infrastructure Ltd Admn 29-Oct-2013
The claimant had been refused leave to bring judicial review. It then renewed its application before finally wthdrawing it. The court now considered liability for costs.
Held: ‘There are particular reasons for the particular rules governing . .
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .
Lists of cited by and citing cases may be incomplete.

Local Government, Scotland

Updated: 14 May 2022; Ref: scu.244728

Moore v Electoral Registration Officer for Borders: ScSf 1980

(Sheriff Court of Lothian and Borders) The court considered the construction of the words ‘unable or likely to be unable to go in person to the polling station’, so as to qualify somebody to apply for a postal vote under the 1949 Act. This led to the question of just how difficult it had to be for a voter to be able to attend the polling station before he could be characterised as being ‘unable’ to go in person.
Held: The words were to be construed with regard to the legislative purpose of the statute: ‘I should have thought that the exceptions laid down in section 12(1) were designed to encourage an elector to exercise his vote rather than put difficulties in his way.’

Citations:

1980 SLT 39

Statutes:

Representation of the People Act 1949 12(1)

Cited by:

Cited – Secretary of State for the Home Department, Regina (on the Application of) v Asylum Support Adjudicator and others Admn 16-May-2006
The Asylum Support adjudicators had allowed appeals by the asylum failed seekers, and had awarded them support. The Secretary of State now appealed. The failed asylum seekers had been unable to leave the country and having been refused support were . .
Lists of cited by and citing cases may be incomplete.

Scotland, Elections

Updated: 14 May 2022; Ref: scu.244197

William Martin and Co v Mills Brothers and Co: 1907

Citations:

1907 SC 1211

Cited by:

Cited – Fraser v The Professional Golfers Association Ltd OHCS 25-Aug-2006
The pursuer a former competitive golfer who wished to become a trainer complained that the defendant which controlled a substantial portion of the professional golf world, had by its rules permanently debarred him from qualification after he three . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract

Updated: 14 May 2022; Ref: scu.244741

P and M Sinclair v The Bamber Gray Partnership: 1987

A motion for summary decree is not intended to replace a hearing on the procedure roll which is designed for the disposal of legal questions requiring more detailed and extensive legal debate.

Judges:

Lord Prosser

Citations:

1987 SC 203

Cited by:

Cited – Henderson v 3052775 Nova Scotia Ltd HL 10-May-2006
The liquidator had sought to set aside a transfer of company property as having been made at an undervalue. The defence was that the buyer had assumed some of the company’s debt in addition, and in effect that it was a preference on other creditors. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Scotland

Updated: 14 May 2022; Ref: scu.241641

Mortensen v Peters: 1906

The Danish master of a Norwegian steam-trawler was prosecuted for using a particular method of fishing in the Moray Firth. He argued that, although the statute banning the method would have caught a British fisherman, it should be construed as impliedly excepting all foreigners fishing from foreign vessels outside the territorial jurisdiction of the British Crown.
Held: The defence failed. Lord Salvesen said that it could scarcely be supposed that the British Parliament should pass legislation placing British fishermen under a disability which did not extend to foreigners: ‘I think, it was a just observation of the Solicitor General that, if legislation of this nature had been proposed, and the words inserted which the Dean of Faculty maintained were implied, it would never have been submitted by a responsible minister or have received the approval of Parliament.’

Judges:

Lord Salvesen

Citations:

(1906) 8 F (J) 93

Cited by:

Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
Lists of cited by and citing cases may be incomplete.

Scotland, Constitutional, Agriculture

Updated: 14 May 2022; Ref: scu.240007

Wilson v Craig: 1983

Citations:

1983 SLT 556

Cited by:

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

Scotland, Legal Professions

Updated: 14 May 2022; Ref: scu.238926

McKenzie v Skeen: HCJ 1983

Citations:

1983 SLT 121

Statutes:

Misuse of Drugs Act 1971 28(2)

Cited by:

Cited – Salmon and Moore v Her Majesty’s Advocate HCJ 13-Nov-1998
The court considered the burden of proof placed on the prosecution under s28 of the 1971 Act.
Held: ‘Subsections (2) and (3) of Section 28 are both designed to come into play at a stage when the Crown have proved all that they need to prove in . .
Lists of cited by and citing cases may be incomplete.

Crime, Scotland

Updated: 14 May 2022; Ref: scu.237681

Bell v Secretary of State for Scotland: 1933

The Lord Ordinary granted interim interdict against the respondent. There was no any contradictor and the court relied on two English cases.

Citations:

1933 SLT 519

Jurisdiction:

Scotland

Cited by:

Cited – Reclaiming Motion In Petition of Scott Davidson for Judicial Review of A Decision To Continue To Detain the Prisoner In Inhuman and Degrading Prison C SCS 18-Dec-2001
A prisoner sought an order for his removal from a prison found to have a regime which breached his human rights. The Crown replied that an order could not be made under s21 of the 1947 Act.
Held: The prisoner had followed through his rights to . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 14 May 2022; Ref: scu.237561

Gollan v Thompson Wyles Company: 1930

Lord President Clyde discussed the order of consideration of the elements of defamation: ‘The question of the admissibility of an innuendo necessarily arises in Scotland at the relevancy stage. If – as here – the statement complained of is not defamatory in its own terms, it is for the pursuer to aver on record what he says it really means, and to set out in his pleadings any circumstances (leading up to or surrounding the utterance of the statement, or affecting the minds of those to whom it was uttered) which may throw light on its true meaning. What then is the test which the Court must apply in determining the admissibility of an innuendo. It is, I think, necessary to look behind the generality of the question – Can the statement bear the meaning which the pursuer puts upon it? – for there is no end to the ambiguity of words, written and spoken, even when construed in the light of the circumstances in which they were used.’ and ‘The test of admissibility is therefore not whether the statement is capable of construction as an attack upon the pursuer’s character, for that leaves the answer open to a wide range of conjecture. It is whether the statement itself, and the circumstances in which it is alleged to have been made, provide grounds for a reasonable inference that an attack upon the pursuer’s character was intended.’

Citations:

1930 SC 599

Cited by:

Cited – Mccann v Scottish Media Newspapers Ltd SCS 18-Feb-1999
Three articles which appeared in one edition of a newspaper had to be read together and treated as ‘constituting a whole’ for the purposes of determining meaning, where the first ended with a cross-reference to the second, and the second ended with . .
Lists of cited by and citing cases may be incomplete.

Scotland, Defamation

Updated: 14 May 2022; Ref: scu.236349

Clements v HM Advocate: 1991

An offence charged was a contravention of the 1971 Act. Observing that the criminal enterprise with which the appellants were concerned was the whole network or chain of supply, right up to the end of the chain where the harmful effects were to be felt, the court.
Held: ‘The underlying mischief at which these provisions are directed is the supply or offer to supply of a controlled drug to another, and to look to the place of the mischief as the place where jurisdiction can be established against all those involved would be consistent with the idea that the courts of the place where the harmful acts occur may exercise jurisdiction over those whose acts elsewhere have those consequences: see Lord Diplock’s discussion of this point in R v Treacy [1971] AC 537, 562. This is not to say that the courts in other parts of the United Kingdom might not also have jurisdiction in an appropriate case. But, as Lord Diplock pointed out, the risk of double jeopardy is avoided by the common law doctrines in bar of trial, in England, of autrefois convict and, in Scotland, that the accused has tholed his assize.

Judges:

Lord Justice General Hope

Citations:

1991 JC 62, 1991 SLT 388

Statutes:

Misuse of Drugs Act 1971 4(30(b)

Cited by:

Cited – Office of the King’s Prosecutor, Brussels v Cando Armas and others HL 17-Nov-2005
The defendant resisted extradition to Brussels saying that the offence had been committed in part in England. He had absconded and been convicted. Application was made for his return to serve his sentence. The offences associated with organisation . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Lists of cited by and citing cases may be incomplete.

Crime, Scotland

Updated: 14 May 2022; Ref: scu.235138

Pringle, Petitioner: 1991

A case was brought to challenge legislation which introduced the community charge in Scotland before it was introduced in England.
Held: The First Division of the Court of Session reserved its position on the effect of the Treaty of Union.

Citations:

1991 SLT 330

Cited by:

Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 13 May 2022; Ref: scu.231152