Category: Scotland

Mcintosh v HM Advocate: HCJ 31 Oct 2000

An application for a confiscation order following a drugs trial, was subject to the requirement of a presumption of innocence. The assumptions required of a court under the Act as to the source of assets acquired by the convicted person violated that presumption of innocence. The section required nothing of the Crown to even suggest any justified grounds of suspicion. The absence of any charge or similar procedure would make it even more necessary to provide the person subject to the application with the right to a fair trial.

Citations:

Times 31-Oct-2000, [2000] DRA 12

Statutes:

Proceeds of Crime (Scotland) Act 1995, European Convention on Human Rights Art 6.1

Citing:

Appealed to – Her Majesty’s Advocate and Another v Mcintosh PC 5-Feb-2001
(From High Court of Justiciary (Scotland)) The defendant had been convicted of drug trafficking. He complained that the following confiscation order had infringed his human rights being based an assumption of guilt and which was incompatible with . .

Cited by:

Appeal from – Her Majesty’s Advocate and Another v Mcintosh PC 5-Feb-2001
(From High Court of Justiciary (Scotland)) The defendant had been convicted of drug trafficking. He complained that the following confiscation order had infringed his human rights being based an assumption of guilt and which was incompatible with . .
Cited – In re Norris, Application by Norris HL 28-Jun-2001
The applicant’s husband had been made the subject of a drugs confiscation order. Part of this was an order against the house. She had failed in asserting that the house was hers. Her appeal to a civil court had been disallowed as an abuse. It was . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Human Rights, Scotland

Updated: 09 April 2022; Ref: scu.83548

Mains v Uniroyal Englebert Tyres Ltd: IHCS 29 Sep 1995

An employer’s duties to provide a safe workplace exists despite the lack of forseeability of any accident of the type which occurred.

Citations:

Times 29-Sep-1995, [1995] SC 518

Statutes:

Factories Act 1961 29(1)

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.

Health and Safety, Scotland

Updated: 09 April 2022; Ref: scu.83328

Landcatch Ltd v The Braer Corporation and Others: OHCS 6 Mar 1998

The pursuers reared salmon eggs to the age of two years (smolt), before then selling them on. The defenders caused an oil spill, and the area was designated as an exclusion zone preventing the pursuers continuing their trade and could not sell their smolt save at a much reduced price or not at all.
Held: The liability for damages flowing from an oil spill at sea were limited. These damages were only relational economic loss occurring in the area of the spill.

Judges:

Lord Gill

Citations:

Times 06-Mar-1998, [1998] 2 Lloyd’s LR 552

Statutes:

Merchant Shipping (Oil Pollution) Act 1971

Cited by:

Appeal from – Landcatch Limited v The Braer Corporation and Williams and Jones and Hudner and Assurance Foreningen Skuld and the International Oil Pollution Compensation Fund IHCS 19-May-1999
The pursuers raised freshwater salmon (smolt) to the age of two before selling them on. An oil spill prevented them trading. They appealed a refusal of damages on the baiss that this was pure relational economic loss.
Held: The appeal failed. . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Lists of cited by and citing cases may be incomplete.

Environment, Scotland

Updated: 09 April 2022; Ref: scu.82941

King and Others v Eaton Ltd: IHCS 1 Feb 1995

The applicants were four of 20 employees selected for redundancy. One complaint was that, although they had been given details of their own marks, they were no allowed to see the ratings for others; another was that the supervisors responsible for the markings were insufficiently informed to make fair assessments. These complaints were upheld by the Industrial Tribunal, which was also critical of the fact that the member of senior management called to justify the assessment results was unable to speak of the detailed merits of the assessments made of the applicants by the supervisors who had marked their forms. The employer appealed.
Held: The appeal was allowed. Nothing suggested that the assessment process was carried out otherwise than honestly and reasonably: ‘In fact it appears to us that what the employers did in this case was to set up a good system of selection, reasonably administered. It may very well have been possible to argue about the individual markings of individual employees, but that is a comment which applies as much to the marking of those who were not selected for redundancy as to that of those who were. If the view taken by the Industrial Tribunal were carried to its logical conclusion, there could be no alternative but to require the employer, in every such case, to produce all the evidence bearing upon all the assessments out of which the redundancy decision arose. That seems to us to go far further than is proper.’ A consultation on a selection for redundancy is not complete if the selection criteria are not disclosed.

Citations:

Times 01-Feb-1995, [1995] IRLR 75

Statutes:

Employment Protection (Consolidation) Act 1978 57(3)

Cited by:

Cited – Alexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .
Cited – British Aerospace plc v Green and Others CA 18-Apr-1995
The employer was to make 530 members of its staff redundant. Each staff member was assessed and scored. The claimants said that the method of selection was unfair, and sought disclosure of the scores of all employees.
Held: It was wrong to . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 09 April 2022; Ref: scu.82782

King v East Ayrshire Council: IHCS 3 Nov 1997

An application for the closure of a school need not be based upon an assessment of school’s pupil capacity as at time of assessment. The court may exercise its discretion to refuse judicial review where that is appropriate, having regard to the public interest in public authorities and third parties not being kept in suspense as to the legal validity of a decision for any longer than is absolutely necessary in fairness to the person affected by it.

Citations:

Times 03-Nov-1997, 1998 SC 182

Statutes:

Education (Publication and Consultation (Scotland)) Regulations 1985 (1985 No 1558) am

Citing:

Applied – O’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .

Cited by:

Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Lists of cited by and citing cases may be incomplete.

Education, Scotland, Judicial Review

Updated: 09 April 2022; Ref: scu.82784

Kerr, Petitioner: HCJ 4 Jul 2000

It was appropriate for the court to prepare and rely upon notes prepared from its own records. The appellant had sought to argue that there had be an undue delay in the progress of his case. The court had, before the hearing prepared a schedule from its own records of the hearings. It was for the defendant asserting delay to prepare and present his own version of events. If that had conflicted with the court record, that could have been dealt with.

Citations:

Times 04-Jul-2000

Criminal Practice, Scotland

Updated: 09 April 2022; Ref: scu.82750

Finegan v Heywood: HCJ 10 May 2000

Parasomnia which resulted in the defendant driving his car after consuming an excess of alcohol but without being aware of his actions in so doing, did not amount to the defence of automatism, where he had previously suffered similar incidents after drinking.

Citations:

Times 10-May-2000

Crime, Scotland

Updated: 08 April 2022; Ref: scu.80545

Short’s Trustee v The Keeper of the Registers of Scotland: HL 7 Dec 1995

The limited scope for rectification of registered land titles was explained. If the Keeper were to recognise an error of a very minor nature, such as an obvious spelling mistake, he would amend it at his own hand. However, he would not adjust a boundary. Once an interest had been registered, in normal circumstances, the Keeper would have no reason to examine an entry for errors, unless they were drawn to his attention by others. In relation to the system of registration of title, a balance had to be struck between the interests of persons possessing competing titles. That balance had been settled in section 9 of the 1979 Act. There was no separate mechanism which could be employed in relation to such problems. An error might be found, possibly years after its occurrence, when it could be very difficult to examine the state of the previous title

Judges:

Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Mustill, Lord Woolf and Lord Nicholls of Birkenhead

Citations:

1996 SC (HL) 14, [1995] UKHL 21, 1996 SCLR 571, 1996 SLT 166

Links:

Bailii

Statutes:

Land Registration (Scotland) Act 1979

Jurisdiction:

Scotland

Citing:

Appeal from – Short’s Trustee v Keeper of the Registers of Scotland IHCS 30-Dec-1993
Trustee may not register decree but can seek to have register amended. . .

Cited by:

Cited – Safeway Stores Plc v Tesco Stores IHCS 6-Jun-2003
The parties appealed a decision of the Lands Tribunal for Scotland ordering rectification of the land register. A small area had been registered to two registers, and an error had occurred on the digitisation of the plan.
Held: The system of . .
Lists of cited by and citing cases may be incomplete.

Registered Land

Updated: 08 April 2022; Ref: scu.183239

Reid v Coyle: SCS 12 May 1892

Citations:

[1892] SLR 29 – 638

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

See Also – Reid v Coyle SCS 24-Dec-1893
In an action of damages by a midwife against a medical practitioner the jury returned a verdict for the pursuer on the first and fourth issues, which were in these terms (1) ‘Whether on 15th October 1891 . . the defender falsely and calumniously . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 06 April 2022; Ref: scu.613511

Reid v Coyle: SCS 24 Dec 1893

In an action of damages by a midwife against a medical practitioner the jury returned a verdict for the pursuer on the first and fourth issues, which were in these terms (1) ‘Whether on 15th October 1891 . . the defender falsely and calumniously stated to Stephen Moore that the pursuer had poisoned his wife Mrs Agnes Moore’ . . (4) ‘Whether on 20th October 1891 . . the defender falsely, calumniously, and maliciously, and without probable cause, stated to Archibald Mackenzie, detective-officer, that Mrs Moore, wife of Stephen Moore, had been poisoned by a drug given to her by the pursuer which had caused her death.’ . . The Judge directed the jury that the statements contained in the first issue were privileged, and that malice must be proved, and no objection was made by the pursuer.
The only evidence of malice adduced by the pursuer as affecting either the first or the fourth issue was the evidence of Mackenzie, who proved that the statements made to him were not volunteered by the defender, but were used in the course of the defender’s replies to Mackenzie’s inquiries made officially by him.
Held: that the verdict was unsupported by evidence, and a new trial granted.
Observations by Lord Trayner as to the limits within which the existence of malice at an earlier date may be inferred from proof of malice at a later date.

Judges:

Lord Trayner

Citations:

[1893] SLR 30 – 335

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Reid v Coyle SCS 12-May-1892
. .
Lists of cited by and citing cases may be incomplete.

Defamation

Updated: 06 April 2022; Ref: scu.613420

The King v Robert Lumisden of Mather: SCS 28 Nov 1533

Gif ony officiar or serjand commandit and send be ony persoun or judge havand powar thairto, arreistis cornis pertening to ony man for ony cause, and efter he has lauchfullie arreistit the samin scheiris, winnis, leidis, and stakkis the samin cornis upon the ground quhair thay grew, he doand the samin is understuid to mak lauchful intimatioun thairby to the awner of the saidis cornis, that he may not thairefter alledge or pretend justlie ony ignorance of the making of the said arreistment.

Citations:

[1533] Mor 685

Links:

Bailii

Jurisdiction:

Scotland

Scotland

Updated: 05 April 2022; Ref: scu.543976

Blake and another v Scottish Legal Complaints Commission: SIC 14 Mar 2013

Complaint correspondence – On 25 July 2012, Mr and Mrs Blake asked the Scottish Legal Complaints Commission (the SLCC) for information about a specific complaint. The SLCC withheld the information under section 26(a) of FOISA, on the basis that disclosure was prohibited by section 43(1) of the Legal Profession and Legal Aid (Scotland) Act 2007 (LPLA). Following an investigation, the Commissioner found that the SLCC was entitled to withhold the information under section 26(a) of FOISA.

Citations:

[2013] ScotIC 046 – 2013

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 05 April 2022; Ref: scu.514806

Dick and Glasgow City Council: SIC 18 Feb 2013

Positioning of parking signs – Mr Dick asked Glasgow City Council (the Council) for information about the positioning of parking signs. The Council failed to respond but, following a review, provided some information to Mr Dick while advising him that it did not hold other information he had asked for.
Following an investigation, the Commissioner found that the Council did hold some of the information it had told Mr Dick that it did not hold. She was satisfied by the end of the investigation that all relevant information had been provided to Mr Dick. She also identified failures to respond within the requisite timescales.

Citations:

[2013] ScotIC 019 – 2013

Links:

Bailii

Jurisdiction:

Scotland

Scotland, Information

Updated: 05 April 2022; Ref: scu.514789

Henderson v Falkirk Council: SIC 18 Feb 2013

Historical maps and potentially contaminated land sites – Mr Henderson asked Falkirk Council (the Council) for copies of historical maps (request 1) and for information relating to potentially contaminated land sites (request 2) held on the Council’s database.
With respect to request 1, the Council argued that the information was otherwise accessible to Mr Henderson, but also that providing the information would, or would be likely to, substantially prejudice the interests of the person who provided it with the information. With respect to request 2, the Council refused to provide the information on the basis that it was incomplete.
During the investigation, the Council stated that it did not actually hold the information sought by Mr Henderson in request 2, but also argued that this request was manifestly unreasonable. However, towards the end of the investigation, the Council provided Mr Henderson with the information he had asked for.
The Commissioner found that the Council had failed to deal with Mr Henderson’s requests for information in accordance with the EIRs.

Citations:

[2013] ScotIC 020 – 2013

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 05 April 2022; Ref: scu.514780

Simpson v South Lanarkshire Council: SIC 18 Feb 2013

Fees notice – Mr Simpson asked South Lanarkshire Council (the Council) for information about repairs to specific roads over a specified period. The Council issued a fees notice in terms of the EIRs. Following an investigation, the Commissioner found that the Council was entitled to issue a fees notice before providing the information requested and that the fee charged by the Council was reasonable.

Citations:

[2013] ScotIC 018 – 2013

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 05 April 2022; Ref: scu.514779

Goldie and Lothian Health Board: SIC 26 Feb 2013

Patients with psoriasis treated with Biologics – Mr Goldie asked Lothian NHS Board (NHS Lothian) for information about patients in their area suffering from psoriasis who had been treated with Biologics. NHS Lothian responded by advising Mr Goldie that it did not hold any information which would fulfil his request. Following a review, NHS Lothian confirmed it did hold the information, but that it would cost too much to provide it to him.
Following an investigation, the Commissioner was satisfied as to the format NHS Lothian held the information in and with the advice and assistance given to Mr Goldie.

Citations:

[2013] ScotIC 030 – 2013

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 05 April 2022; Ref: scu.514784

Global Alliance Against Industrial Aquaculture v Scottish Ministers: SIC 19 Feb 2013

SIC The Global Alliance Against Industrial Aquaculture (GAAIA) asked the Scottish Ministers (the Ministers) for sea lice data for all salmon farms in Scotland since 2000. Some information was provided to GAAIA. The Ministers withheld the remaining information under the Environmental Information (Scotland) Regulations 2004, as they considered disclosure would prejudice substantially the interests of the providers of the information. The Commissioner agreed with this approach.

Citations:

[2013] ScotIC 017 – 2013

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 05 April 2022; Ref: scu.514778

Sutherland and Scottish Criminal Cases Review Commissioner: SIC 19 Feb 2013

SIC Mr Sutherland asked the Scottish Criminal Cases Review Commission (the SCCRC) for the views or opinions it canvassed on the Cadder judgement. The SCCRC withheld the information covered by Mr Sutherland’s request, but released one document during the investigation.
The Commissioner found that the SCCRC had been entitled to withhold the remaining information under section 30(b) of FOISA (prejudice to effective conduct of public affairs).

Citations:

[2013] ScotIC 021 – 2013

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 05 April 2022; Ref: scu.514783

Gary Pearson and Renfrewshire Council: SIC 4 Dec 2012

SIC Information pertaining to the Council’s pre-2007 housing allocation policy – Mr Pearson asked Renfrewshire Council (the Council) for information about its pre-2007 housing allocation policy. The Council responded by providing some information, but withholding the remainder under sections 25(1), 36(1) and 38(1)(b) of FOISA. Further information was disclosed after a review and during the Commissioner’s investigation.
Following the investigation, while the Commissioner found that the Council had generally dealt with the request correctly, she identified certain information which should not have been withheld as subject to legal professional privilege and required its disclosure. She also identified certain information, disclosed during the investigation, which the Council had incorrectly described as reasonably obtainable by Mr Pearson.

Citations:

[2012] ScotIC 199 – 2012)

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 05 April 2022; Ref: scu.470170

Councillor Stuart Currie and East Lothian Council: SIC 21 Feb 2013

Support to political groups for manifestos – Councillor Currie asked East Lothian Council (the Council) for information on work done by Council officers on the manifestos of two political groups on the Council. The Council withheld the information on the basis that it was intended for future publication, subsequently changing its position and notifying Councillor Currie that the information was withheld because its disclosure would substantially prejudice the effective conduct of public affairs.
During the Commissioner’s investigation, the Council advised that it did not hold the requested information. The Commissioner accepted that this was the case, also finding that the Council had failed to give Councillor Currie the appropriate notice to this effect.

Citations:

[2013] ScotIC 026 – 2013

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 05 April 2022; Ref: scu.514776

Clatto Landscape Protection Group and Fife Council: SIC 4 Dec 2012

Wind turbine planning reports – Clatto Landscape Protection Group (CLPG) requested from Fife Council (the Council) information relating to two wind turbine planning applications. The Council released some information but withheld the preliminary case officer’s reports under regulation 10(4(e) (internal communications) of the EIRs. Following an investigation, the Commissioner accepted that the information related to internal communications, but found that the public interest favoured disclosure.

Citations:

[2012] ScotIC 200 – 2012)

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 05 April 2022; Ref: scu.470167

The Sailing Ship ‘Blairmore’ Co, Ltd v Macredie: SCS 4 Jun 1897

Citations:

[1897] SLR 34 – 678

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Appeal from – Sailing Ship ‘ Blairmore ‘ Company v Macredie HL 11-Jul-1898
The ‘BLAIRMORE’ was sunk by a storm while moored in San Franscisco Bay and abandoned to the insurers by her owner. The assured pleaded that the cost of raising and repairing the ship was such as to make her a constructive total loss at the time of . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 04 April 2022; Ref: scu.612475

Docherty and Others v The Secretary of State for Business, Innovation and Skills: SCS 21 Mar 2018

The House was asked: ‘Where a man, while working in Scotland, inhales asbestos fibres that cause injury to his body after he has become resident in England, which law is applicable to determine the admissibility of claims for damages made by his executors and relatives after his death?’

Citations:

[2018] ScotCS CSOH – 25

Links:

Bailii

Jurisdiction:

Scotland

Personal Injury, Jurisdiction

Updated: 01 April 2022; Ref: scu.609346

Wright v Stoddard International Plc and Another (No 2): SCS 23 Oct 2007

(Supplementary Opinion) Lord Uist applied the decision in Rothwell, although on the facts he would not have awarded damages anyway.

Judges:

Lord Uist

Citations:

[2007] ScotCS CSOH – 173, 2008 RepLR 37

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Wright v Stoddard International Plc and Another SCS 2-Aug-2007
. .
Applied – 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 by:

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 . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.

Personal Injury

Updated: 31 March 2022; Ref: scu.259996