Category: Scotland

Fox Cross and Others v Glasgow City Council and Others: EAT 25 Jan 2013

EAT EQUAL PAY ACT
TRANSFER OF UNDERTAKINGS – Transfer
Glasgow Council decided it would no longer perform work of providing leisure and recreational services; of providing parking and parking enforcement services; and of providing care services by using directly employed labour. Its staff in each of the three areas were transferred to respectively a Community Interest company, Glasgow Life, and two LLPs – ‘Parking’, and Cordia. The employees wished to be able to compare their terms and conditions of employment with those still in the direct employment of Glasgow Council in other departments for the purposes of equal pay claims. To do so, the CIC and the two LLPs both needed to be ‘associated employers’ within the meaning of s.1(6) Equal Pay Act 1970, or their pay had to be attributable to a ‘single source’. A Tribunal held that whereas the CIC was an associated employer, neither LLP was, since an LLP was not a ‘company’ within the meaning of the statute. Nor, despite the extremely close control which Glasgow Council maintained over the personnel of the boards of each, and over their operations, which were subject to the power to require them to act as Glasgow Council directed, and to audit by Glasgow Council, was there a single source within the meaning the law attributed to that concept. Held A ‘company’ within the meaning of s.1(6) EqPA was not restricted to a limited company registered under the Companies Acts. It could mean a body persons, and since s.1(6) was to be seen as an anti-avoidance provision should purposively be construed to that effect, such that an LLP was within its meaning. Though obiter, in consequence of the decision on 1(6), the rejection of there being a ‘single source’ was also in error. The appeals by two of the groups of claimants was therefore allowed, but a separate appeal by GMB claimants on a different point (whether a Respondent should be discharged from the proceedings) was rejected.
Permission was granted to appeal to the Inner House of the Court of Session.

Judges:

Langstaff J P

Citations:

[2013] UKEAT 0027 – 12 – 2501

Links:

Bailii

Statutes:

Equal Pay Act 1970 1(6)

Jurisdiction:

England and Wales

Employment, Scotland, Discrimination

Updated: 14 November 2022; Ref: scu.471779

Davies and Another (T/A All Stars Nursery) v The Scottish Commission for The Regulation of Care: SC 27 Feb 2013

The appellants ran a day care nursery regulated under the 2001 Act. The Commission, being concerned at the care provided, sought to revoke the registration in proceedings before the Sherriff’s Court. Before they were concluded, the Commission was dissolved. The transitional provisions appeared inadequate in failing to identify which body was to continue any proceedings, and whether the Commission was to be deemed to have continued in existence for this purpose.
Held: The appeal failed. The case was remitted to the Inner House for such further orders as were required to make progress. The matter was to be determined under the 2001 Act, since the case had not yet been determined.

Judges:

Lord Hope, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath

Citations:

[2013] UKSC 12, UKSC 2012/0048

Links:

Bailii, Bailii Summary, SC Summary, SC

Statutes:

Regulation of Care (Scotland) Act 2001

Jurisdiction:

England and Wales

Citing:

At Sherriff’s Court – Davies and Another v The Scottish Commission for The Regulation of Care ScSf 9-May-2011
The pursuers ran a day care nursery. They had been subject to proceedings for the cancellation of their registration. The Commission had been dissolved and replaced by a new body, and they said that the new body could not be substituted in that . .
Appeal from – Davies and Another (T/A All Star) v The Scottish Commission for The Regulation of Care SCS 24-Jan-2012
The Commission had begun proceedings seeking to revoke the Davies’ registration to provide nursery facilities. The Commission was dissolved and the Sherriff had found that the new body could not take over the proceedings.
Held: The appeal . .
Cited – Inco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .
Cited – 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 . .
Cited – Moore v The Scottish Daily Record and Sunday Mail Ltd SCS 9-Dec-2008
. .
Lists of cited by and citing cases may be incomplete.

Scotland, Health Professions

Updated: 14 November 2022; Ref: scu.471221

ABC (Ap), Re Judicial Review: SCS 22 Feb 2013

Outer House, Court of Session – The petitioner, from Afghanistan, sought asylum. The respondent decided to refuse the claim and remove the appellant to Afghanistan. He appealed to the First-tier tribunal on the grounds that he had a genuine fear of persecution if he were returned to Afghanistan, that he was a refugee and that his rights in terms of articles 2 and 3 of the Human Rights Convention would be breached if he were returned to Afghanistan.

Judges:

Lord Bannatyne

Citations:

[2013] ScotCS CSOH – 32

Links:

Bailii

Scotland, Immigration, Human Rights

Updated: 14 November 2022; Ref: scu.471188

Wills v Strategic Procurement (UK) Ltd: SCS 13 Feb 2013

The court considered: ‘The effect of error on the validity of a contract is one of the most uncertain areas in our private law. This is the result of a tension between two fundamental principles. Firstly, a contract is constituted by the agreement of the parties to it. It is based on mutual consent. Secondly, however, one party is entitled to hold the other to what he has said, even if he did not mean it. ‘When all the external indicia of agreement are present the fact of agreement will, as a general rule, be assumed’.’

Judges:

Lord Malcolm

Citations:

[2013] ScotCS CSPH – 26

Links:

Bailii

Scotland, Contract

Updated: 14 November 2022; Ref: scu.470961

Mitchell v Great Lakes Reinsurance UK Ltd: SCS 25 Jan 2013

The petitioners sought payment of the sum insured after the death of the policyholder. He was injured but not severely in a road traffic accident, became ill with pneumonia and died shortly. The insurers said that the cause of death was a pre-existing condition.

Judges:

Lord Malcom

Citations:

[2013] ScotCS CSOH – 14

Links:

Bailii

Scotland, Insurance

Updated: 13 November 2022; Ref: scu.470719

NM v Lanarkshire Health Board: SCS 23 Jan 2013

Inner House – The pursuer and reclaimer sought reparation for son after grave injury sustained at his birth in a maternity hospital run by the defenders and respondents. She attributes that injury to negligence in a consultant obstetrician. Following a proof, the Lord Ordinary concluded that negligence had not been established and he assoilzied the defenders. The pursuer now reclaimed against that decision.
Held: The Lord Ordinary’s judgment was upheld.

Judges:

Lord Eassie, Lord Hardie, Lord Emslie

Citations:

[2013] ScotCS CSIH – 3, 2013 SC 245, 2013 GWD 5-136

Links:

Bailii

Citing:

Appeal from – Montgomery v Lanarkshire Health Board SCS 30-Jul-2010
Outer House – The pursuer sought damages for personal injuries to her son at his birth, alleging negligence by the medical staff at the defender hospital. She said that she had been advised a cesarian birth for her child, but the doctors had not . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .

Cited by:

Appeal from – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Lists of cited by and citing cases may be incomplete.

Scotland, Professional Negligence, Personal Injury

Updated: 13 November 2022; Ref: scu.470538

Jackson v Murray and Another: SCS 27 Dec 2012

Extra Division, Inner House. The pursuer, a child, alighted from a school bus, and, on emerging into the road was hit by a car driven by the defender, suffering serious injury. She now appealed against a finding that she was 90% responsible for her injuries.
Held: The Division allowed the pursuer’s appeal and assessed her contributory negligence instead at 70%.

Judges:

Lord Drummond Yound

Citations:

[2012] ScotCS CSIH – 100, 2013 GWD 3-104, [2012] CSIH 100, 2013 Rep LR 30, 2013 SLT 153

Links:

Bailii

Statutes:

Law Reform (Contributory Negligence) Act 1945

Citing:

At Outer House – Jackson v Murray SCS 14-Jun-2012
Outer House – (Opinion) The pursuer child came out of a school bus and ran into the road behind it, being hit by a car driven by the defender. The court was asked as to the proprotions of responsibility.
Held: The pursuer was 90% responsible. . .

Cited by:

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

Scotland, Personal Injury, Negligence

Updated: 12 November 2022; Ref: scu.468833

Rule and Scottish Ministers: SIC 3 Feb 2012

This decision considers whether the Scottish Ministers (the Ministers) complied with the technical requirements of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to an information request made by Mr David Rule.

Citations:

[2012] ScotIC 023 – 2012)

Links:

Bailii

Statutes:

Freedom of Information (Scotland) Act 2002

Jurisdiction:

Scotland

Information

Updated: 12 November 2022; Ref: scu.451524

Meikle and Scottish Ministers: SIC 20 Feb 2014

Bute House accommodation – benefit in kind: failure to respond within statutory timescales – On 5 November 2013, Mr Meikle made a request to the Scottish Ministers (the Ministers) asking if the First Minister’s residence (Bute House) is treated as a ‘benefit in kind’. This decision finds that the Ministers failed to respond to the request within the timescales allowed by the Freedom of Information (Scotland) Act 2002 (FOISA). The decision also finds that the Ministers failed to comply with Mr Meikle’s requirement for review within the timescales set down by FOISA

Citations:

[2014] ScotIC 038 – 2014

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 12 November 2022; Ref: scu.522725

Mcfadyen v Blue Suite Medical Practice: SIC 20 Jul 2012

Number of warning letters issued – Mr McFadyen requested information from the Blue Suite Medical Practice (the Practice), including numbers of warning letters issued to patients over specified periods. He was informed that exact figures could not be provided. While finding some technical shortcomings in the Practice’s responses to Mr McFadyen, the Commissioner accepted that the Practice was not obliged to comply with his request, as the cost of doing so would exceed the statutory limit of andpound;600.

Citations:

[2012] ScotIC 123 – 2012)

Links:

Bailii

Jurisdiction:

Scotland

Scotland, Information

Updated: 10 November 2022; Ref: scu.466851

R and Scottish Prison Service: SIC 9 Jul 2012

Policy on family contact and access to postage stamps – Mr R requested from the Scottish Prison Service (the SPS) information about the SPS’s documented policies on family contact and access to postage stamps. The SPS replied, stating that it did not hold any information covered by the terms of Mr R’s request. The SPS provided some information which it did not consider to be policy, but which it believed to be relevant to Mr R’s request. Following a review, Mr R remained dissatisfied and applied to the Commissioner for a decision.
After an investigation, the Commissioner found that the SPS had dealt with Mr R’s request for information in accordance with Part 1 of FOISA, by giving notice that it did not hold any information falling within the scope of Mr R’s request. She did not require the SPS to take any action.

Citations:

[2012] ScotIC 115 – 2012)

Links:

Bailii

Scotland, Information, Prisons

Updated: 10 November 2022; Ref: scu.466857

Batley Pet Products v North Lanarkshire Council: SCS 7 Nov 2012

(Extra Division) The mid-landlord had requested the sub-tenant to execute repairs before the lease expired. The tenant said that the requirement should have been notified formally to create an obligation. The landlord now appealed against a finding that the informal notice was effective.
Held: The appeal succeeded. The reclaiming motion was granted, and the claim dismissed. Absent a written notice before the expiry of the sub-lease, the Council was not obliged under clause 2.5 of the Minute of Agreement to dismantle and remove the works and reinstate the sub-let premises. They also held that Batley had not averred a relevant basis for its alternative claim. They referred to the Council’s submission that Batley had not pleaded that they had given the Council any indication before the expiry of the sub-lease that any work was required under clause 3.12 of the head lease. They concluded that Batley had no sufficient averments of the obligations for which it sought relief.

Judges:

Lord Clarke, Lord Hardie and Lord Bonomy

Citations:

[2012] ScotCS CSIH – 83

Links:

Bailii

Citing:

Outer House – L Batley Pet Products Ltd v North Lanarkshire Council SCS 20-Dec-2011
(Outer House) The pursuers were mid-tenants and the responders their sub-tenants. Before the expiry of the sub-lease, the pursuer reqested re-instatement, but the responder now said that thie notice should have been formal to be effective.

Cited by:

Appeal from – 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, Landlord and Tenant

Updated: 09 November 2022; Ref: scu.466320

HM Advocate v Lauchlan and Another: SCS 17 Jul 2009

Decision as to preliminary issues raised.

Judges:

Lord Kinclaven

Citations:

[2010] ScotHC HCJ – 03

Links:

Bailii

Citing:

See Also – Lauchlan and Another v HM Advocate HCJ 5-Jun-2009
The appellants were charged with murder. They appealed against an extension of time given to allow the prosecution to proceed.
Held: The appeal failed. . .

Cited by:

See also – HM Advocate v Lauchlan and Another HCJ 14-Jan-2010
. .
See Also – HM Advocate v Lauchlan and Another HCJ 2-Jul-2010
. .
See Also – Lauchlan and Another v Her Majesty’s Advocate HCJ 8-Feb-2012
. .
See Also – Lauchlan and Another v HM Advocate HCJ 19-Apr-2012
. .
See Also – O’Neill v The United Kingdom ECHR 13-Nov-2012
. .
See Also – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice

Updated: 09 November 2022; Ref: scu.466315

Morris v Rae: SC 7 Nov 2012

The pursuer had bought land from the responder which in turn had bought from a company now in liquidation. On application for registration, the Keepr of the registers said the title had not been made out, and he was unable to complete the registration. The appeallant claimed breach of warrandice, the contractual warranty of title given by a vendor to a purchaser. There had been an eviction threat at an earlier stage, but the threat was made by someone whose own title had not been perfected. The Court was now asked whether the person who makes the threat of eviction has to have an unquestionable title to the property at the time when the threat is made and, if not, what the purchaser in those circumstances has to show in order to trigger the seller’s liability under the warrandice.
Held: The appeal succeeded. The Appellant was entitled to be given an opportunity to present his case before the court. A threat of eviction needd not always be made by someone with a title to the land. The law of warrandice had to allow that a threat may be properly acceeded to and therefore a claim made under warrandice, when the threat had proper substance.

Judges:

Lord Hope, Deputy President, Lord Walker, Lord Sumption, Lord Reed, Lord Carnwath

Citations:

[2012] UKSC 45, 2012 GWD 37-742, UKSC 2011/0118

Links:

Bailii, Bailii Summary, SC Summary, SC

Statutes:

Prescription and Limitation (Scotland) Act 1973

Jurisdiction:

England and Wales

Citing:

Cited – Clark v Lindale Homes Limited SCS 1994
The court set out the conditions to found a claim for breach of warrandice on a land purchase: ‘Although eviction did not mean physical removal, it did involve the emergence of a real or threatened burden on the property which had to come from a . .
Appeal from – Morris v Rae SCS 5-Apr-2011
The complainer had purchased land from the defender, but the Keeper of the Registers refused to register the transfer, saying that the disponer was not the owner. The claim was for breach of warrandice. . .
Lists of cited by and citing cases may be incomplete.

Scotland, Registered Land

Updated: 06 November 2022; Ref: scu.465602

DA v Strathclyde Joint Police Board: SCS 27 Jun 2012

The tribunal’s decision that the appellant had been unfairly dismissed by the respondent had been reversed at the EAT. The respondent had been allowed to withdraw a concession, and the appellant now sought to pursue a different argument. The appellant, a former police officer and latterly a training officer had a brother convicted of serious sex offences. That brother had absconded in breach of his sex offender’s registration requirements, and it was said that the appellant had failed to act properly in not revealing his whereabouts.
Held: The EAT had criticised the Tribunal for not properly understanding the relationship between the appellant’s employer and the associated Police Force, but had failed to criticise the respondent for itself wrongly conceding it’s separateness. It was not for the EAT to promote a point not taken by the parties. In the very particular circumstances of this case neither tribunal had dealt with the correct issues, and the case was remitted to a differently constituted tribunal for rehearing.

Judges:

Lord Clarke, Lord Hardie, Lord Osborne

Citations:

[2012] ScotCS CSIH – 75

Links:

Bailii

Statutes:

Sexual Offences Act 2003

Citing:

Cited – Kumchyk v Derby County Council EAT 1978
The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Employment, Police

Updated: 05 November 2022; Ref: scu.464695

Hannigan v Lanarkshire Acute Hospital NHS Trust: SCS 21 Sep 2012

Opinion – The pursuer alleged negligence in the defenders conduct of a hysterectomy.

Judges:

Lord Tyre

Citations:

[2012] ScotCS CSOH – 152

Links:

Bailii

Citing:

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

Scotland, Professional Negligence

Updated: 05 November 2022; Ref: scu.464412

Cairngorms Campaign and Others v Cairngorms National Park Authority: SCS 21 Sep 2012

(Opinion) The appellants objected to decisions by the respondent planning authority for the allocation of plots of land for residential and other development within the National Park.

Judges:

Lord Glennie

Citations:

[2012] ScotCS CSOH – 153

Links:

Bailii

Statutes:

Town and Country Planning (Scotland) Act 1997

Scotland, Planning

Updated: 05 November 2022; Ref: scu.464409

Procurator Fiscal, Fort William v Mclean and Another: HCJ 11 Aug 2000

A rule which restricted the amount payable to a defendant to cover his legal fees in defending a case brought against him to pounds 550.00 was not an infringement of his human rights. To demonstrate a breach of the right to a fair trial, the defendant must show not only prejudice, but also some material disadvantage involving an actual and material risk of harm to his defence.

Citations:

Times 11-Aug-2000

Statutes:

Criminal Legal Aid (Fixed payments)(Scotland) Regulations 1999 (SI 1999 No 491)

Jurisdiction:

Scotland

Legal Aid, Human Rights

Updated: 05 November 2022; Ref: scu.85053

Trump International Golf Club Scotland Ltd v Aberdeen City Council: SIC 10 Feb 2015

SIC European Offshore Wind Farm Development Centre and Related Substation at Blackdog, Aberdeenshire – On 28 May 2014, Trump International Golf Club Scotland Ltd (Trump International) asked Aberdeen City Council (the Council) for information concerning the European Offshore Wind Farm Development Centre (EOWFDC)1 and related substation at Blackdog, Aberdeenshire. The Council disclosed some information and stated that it did not hold other information.
The Commissioner investigated and found that, in responding to the request, the Council had failed to identify and retrieve some information covered by the request. She required the Council to respond to Trump International’s requirement for review for parts 2, 3, 5 and 6 of the request in terms other than regulation 10(4)(a) of the EIRs.

Citations:

[2015] ScotIC 016 – 2015

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 05 November 2022; Ref: scu.543118

Smith and East Ayrshire Council: SIC 10 Feb 2015

SIC Application of the Data Protection Act 1998 to independent coal report
On 17 January 2014, Mr Smith asked East Ayrshire Council (the Council) for information concerning the application of the Data Protection Act 1998 to an independent coal report.
The Council responded by providing some information to Mr Smith and withholding other information under various exemptions. Following a review, Mr Smith remained dissatisfied and applied to the Commissioner for a decision.
The Commissioner investigated and found that the Council had partially failed to respond to Mr Smith’s request for information in accordance with Part 1 of FOISA. She found that the Council has correctly applied the exemptions to most of the withheld information, but that it had been incorrect to withhold some of it on the basis of its effect on the free and frank exchange of views. She required the Council to disclose this information.

Citations:

[2015] ScotIC 018 – 2015

Links:

Bailii

Statutes:

Data Protection Act 1998

Jurisdiction:

Scotland

Information

Updated: 05 November 2022; Ref: scu.543115

David Willson and Scottish Public Services Ombudsman: SIC 26 Nov 2013

On 6 August 2013, Mr Willson asked the Scottish Public Services Ombudsman (the SPSO) to provide the information it had used to reach certain conclusions in relation to a complaint it had investigated, and for correspondence with the Minister for Transport. The SPSO withheld all information under section 26(a) of FOISA, and upheld this decision after review. Mr Willson requested and received information which was his own personal data under the Data Protection Act 1998 (the DPA), but believed that some information had not been provided. He applied to the Commissioner for a decision on how his request had been dealt with under FOISA.
The Commissioner found that the information held by the SPSO in relation to Mr Willson’s request was exempt from disclosure under section 26(a) of FOISA.

Citations:

[2013] ScotIC 269 – 2013

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 04 November 2022; Ref: scu.522797

H A Cook and Social Care and Social Work Improvement Scotland: SIC 26 Nov 2013

On 4 December 2012, Mr Cook asked Social Care and Social Work Improvement Scotland (SCSWIS) for the dates when two named Care Commission Officers were awarded their Regulation of Care Awards. SCSWIS refused the request under section 14(2) of FOISA, on the basis that it was repeated. Following an investigation, the Commissioner accepted this.

Citations:

[2013] ScotIC 268 – 2013

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 04 November 2022; Ref: scu.522801