HM Advocate, Re 4th Criminal Court of Lisbon, A Porugese Judicial Authority: HCJ 9 Dec 2011

The Lord Advocate appealed against dismissal of extradition proceedings against the two defendants.

Citations:

[2011] ScotHC HCJAC – 121, [2011] HCJAC 121

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

CitedHH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 23 May 2022; Ref: scu.450154

Greater Glasgow Health Board v Baxter Clark and Paul: SCS 1990

Outer House Court of Session – Lord Clyde held (obiter) that the ordinary and natural meaning of the phrase ’caused as aforesaid’ included the distinct ingredient of causation by negligence: ‘The question is one of the interpretation of section 11(3) . . In my view . . the subsection looks for an awareness not only of the fact of loss having occurred, but the fact that it is a loss caused by negligence . . I do consider that the ordinary and natural meaning of the phrase [’caused as aforesaid’] involves an inclusion of the ingredient of causation by fault. The construction advocated by the defenders does not seem to me to give sufficient recognition to the presence of the critical three words. Indeed, if Parliament had intended what the defenders submit is the proper construction, the words could have been altogether omitted. Counsel for the defenders argued that it was necessary to refer to the fact that the loss was loss resulting from an act, neglect or default because it was with that that the section was concerned. As senior counsel for the defenders put it, the critical phrase was inserted to draw attention back to section 11(1) to show the kind of loss of which the creditor has to be aware without making awareness of the fact of causation an essential for the prescriptive period to start running. But the whole section is concerned with claims for reparation which involve damnum caused by injuria and it does not seem to me that the critical words could have been added simply as a reminder of that. They must be there for some purpose and they must be given some meaning. In accordance with the ordinary use of the language which is used, awareness of loss having occurred is not enough. What the subsection requires is awareness of loss caused by negligence having occurred.
Furthermore as senior counsel for the pursuers submitted, the logic of the scheme points to a requirement of knowledge that the right of action exists before the obligation is deemed to be enforceable and it would be illogical to omit one of the essential components of the right of action, namely the causation of the loss by fault. Even more compelling to my mind was his further submission that if it is only knowledge of the fact of loss, injury or damage having occurred which is intended, it is difficult to give much content to the reference to reasonable diligence. The more likely context for reasonable diligence is in the steps that may be taken after loss has been sustained to discover the cause of it . .’

Judges:

Lord Clyde

Citations:

1990 SC 237

Statutes:

Prescription and Limitation (Scotland) Act 1973

Jurisdiction:

Scotland

Cited by:

CitedDavid T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Another SCS 14-Mar-2013
Extra Division – Inner House – An explosion at the defenders’ neighbouring premises had damaged those of the pursuer. The defenders now appealed against a finding that the claim was out of time calculated from the time when it had sufficient . .
CitedDavid T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Others SC 30-Jul-2014
The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 20 May 2022; Ref: scu.552028

Wallis v Wallis: HL 5 Aug 1993

(Scotland) The valuation of the matrimonial home was to be taken as at the date of the couple’s separation. The House affirmed the decision of the Court of Session.

Judges:

Lord Keith of Kinkel

Citations:

Times 05-Aug-1993, 1993 SC (HL) 49, [1993] UKHL 16, [1993] EG 148 (CS), 1993 SLT 1348, 1993 SCLR 800

Links:

Bailii

Statutes:

Family Law (Scotland) Act 1985 8 9 10

Jurisdiction:

England and Wales

Citing:

Appeal fromWallis v Wallis SCS 1992
The effect of section 10(3)(b) of the 1985 Act was that the whole of the wife’s share of the increase in its value after the date of separation which passed to the husband as a result of the sheriff’s order had to be left out of account in the . .

Cited by:

CitedMiller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Lists of cited by and citing cases may be incomplete.

Scotland, Family

Updated: 20 May 2022; Ref: scu.90263

Stiell Ltd v Riema Control Systems Ltd: IHCS 28 Jun 2000

Contractors had been called upon to carry out work beyond that originally requested, and sought payment, and had arrested a payment in the hands of a third party. Before raising the action they had referred the matter to adjudication under the Act.
Held: The fact of the reference did not change the fact of the claim, and the effect of the arbitrator’s decision in rejecting the claim was not like that of a certifying engineer or architect.

Citations:

Times 28-Jun-2000

Statutes:

Housing Grants Construction and Regeneration Act 1996

Jurisdiction:

Scotland

Arbitration, Construction, Scotland

Updated: 20 May 2022; Ref: scu.89556

Dormer v Melville Dundas and Whitson Ltd: 1990

Citations:

1990 SLT 18

Jurisdiction:

Scotland

Cited by:

CitedFarstad 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: 20 May 2022; Ref: scu.410555

Mulvey v Secretary of State for Social Security: HL 20 Mar 1997

The appellant had had repayable awards from the social fund and also income support benefit. Deductions were made from the benefit to repay the awards. Her estate was sequestrated. She argued that the awards should no longer be deducted.
Held: Deductions by way of recoupment for overpayments of benefit were correctly continued after bankruptcy.
Lord Jauncey said: ‘By no stretch of the imagination could the respondent’s exercise of his statutory right be described as diligence for the purpose of the law of Scotland’.
The rule at common law rule was also disapplied: ‘The deductions made by the respondent were not, as in the normal case of compensation in bankruptcy, a result of the bankruptcy, but were made in pursuance of a statutory scheme which was already in operation at the time of sequestration and with which the permanent trustee can have no concern. Prior to sequestration, the appellant had no right to receive by way of income support benefit more than her gross entitlement under deduction of such sum as had been notified to her by the respondent prior to payment of the award by the respondent. This was the result of the statutory scheme and she could not have demanded more.’

Judges:

Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Slynn of Hadley, Lord Lloyd of Berwick

Citations:

[1997] UKHL 10, 1997 SC (HL) 105

Links:

House of Lords, Bailii

Statutes:

Social Security Administration Act 1992 167(3), Social Security Contributions and Benefits Act 1992 138(1)

Citing:

CitedFraser v Robertson 1881
A creditor in an obligation undertaken by a debtor prior to sequestration must, after sequestration, enforce that obligation against the estate vested in the trustee and can only seek a decree of constitution there anent against the debtor . .
CitedMacdonald’s Trustee v Macdonald 1938
So much income received by a debtor as exceeds his needs, as determined by the Sheriff, may require to be paid to the permanent trustee. The 1921 Act did not override . .
CitedBradley-Hole v Cusen CA 1953
The creditor was a tenant of rent-controlled premises who had been charged too much rent by his landlord. The bankrupt landlord’s trustee argued that the claim in respect of overpaid rent had been converted into a right to prove the debt in the . .
Appeal fromMulvey v Secretary of State for Social Security IHCS 24-Nov-1995
The claimant had first been granted a loan from the Social Fund. After her bankruptcy, the benefits loan was recoverable from benefits even after the bankruptcy if the loan was not proved in the bankruptcy. The right to recover by deduction was but . .

Cited by:

CitedSecretary of State for Work and Pensions v Payne and Another SC 14-Dec-2011
The appellant sought to recover overpayments of benefits and Social Fund Loans, after the respondent had had a Debt relief order.
Held: The Secretary of State’s appeal failed. The ‘net entitlement principle’ argued for did not exist. The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Benefits, Scotland

Updated: 19 May 2022; Ref: scu.84121

K (A Patient) v Craig: HL 3 Dec 1998

(Scotland) A move to supervised community care by a detained patient first requires a finding by a psychiatrist that detention is no longer necessary, but a report to that effect is not sufficient to allow requirement to release as such.

Judges:

Slynn, Lloyd, Hoffmann, Hope, Hutton LL

Citations:

Times 07-Dec-1998, [1998] UKHL 54, 1999 SCLR 67, 1999 SLT 219, 1998 GWD 40-2074, 1999 SC (HL) 1

Links:

Bailii

Statutes:

Mental Health (Scotland) Act 1984 Part V

Health, Scotland

Updated: 19 May 2022; Ref: scu.82652

Guild v Inland Revenue Commissioners: HL 6 May 1992

The will left land for a sports centre to a local authority which no longer existed. If the gift was charitable, the gift would be applied cy pres, but if not it would fail and pass to the family and be subect to Inheritance Tax.
Held: A gift to a local authority of land on which to construct a sports centre, was in its nature charitable, and the gift is exempt therefore from Inheritance Tax.

Judges:

Lord Keith of Kinkel, Lord Roskill, Lord Griffiths, Lord Jauncey of Tullichettle, Lord Lowry

Citations:

Gazette 06-May-1992, [1990] UKHL 10, [1992] 2 AC 310, [1992] UKHL 16, [1993] Imm AR 112, [1992] 1 WLR 1052, [1992] 4 All ER 673

Links:

Bailii, Bailii

Statutes:

Finance Act 1975 Sch 6 para 10, Income and Corporation Taxes Act 1970 360(3), Recreational Charities Act 1958 1

Citing:

CitedRussell’s Executor v Balden 1989
. .
CitedInland Revenue Commissioners v McMullen ChD 1978
The Football Association set up a trust to promote football and other sports in schools and universities. The parties disputed whether a valid charitable trust had been created.
Held: The trust was not valid as one for the advancement of . .
CitedInland Revenue Commissioners v McMullen HL 6-Mar-1980
HL Charity – Promotion of sport – Trust created ‘to organise or provide or assist in the organisation and provision of facilities which will enable and encourage pupils of schools and universities in any part of . .
CitedBaddeley (Trustees of the Newtown Trust) v Inland Revenue Commissioners HL 17-Feb-1955
Land had been conveyed to trustees for the moral, social and physical well-being of a community. The court considered whether the trust was charitable in nature, where it was said that it confined the benefits to a class of people who do not . .
CitedIncome Tax Special Commissioners v Pemsel HL 20-Jul-1891
Charitable Purposes used with technical meaning
The House was asked whether, in a taxing statute applying to the whole of the United Kingdom and allowing for deductions from and allowances against the income of land vested in trustees for charitable purposes, the words ‘charitable purposes’ . .
CitedInland Revenue Commissioners v McMullen CA 1979
The Football Association had set up a trust to promote football in universities and schools, claiming this was charitable under the 1958 Act.
Held: The trust was not charitable whether as being for the advancement of education, or in the . .
CitedWeir v Crum-Brown HL 6-Feb-1908
If a bequest in a will to a class of persons is capable of application by the trustees, or failing them, the court, the gift is not void for uncertainty. Lord Macnaghten said: ‘The testator has taken pains to provide competent judges. It is for the . .
CitedCommissioner of Valuation for Northern Ireland v Lurgan Borough Council CANI 1968
The respondent local authority owned an indoor swimming pool. It claimed exemption from rates under section 2 of the 1854 Act saying that it was used exclusively for the purposes of a recreational charity under the Act of 1958.
Held: (By a . .
CitedNational Deposit Friendly Society Trustees v Skegness Urban District Council HL 1959
The House considered the meaning of the phrase ‘the advancement of . . social welfare’ in the 1955 Act. Lord Denning said: ‘A person is commonly said to be engaged in ‘social welfare’ when he is engaged in doing good for others who are in need – in . .
Lists of cited by and citing cases may be incomplete.

Inheritance Tax, Charity, Scotland

Updated: 19 May 2022; Ref: scu.81079

Fraser v Mirza: HL 29 Mar 1993

A complaint made against a police officer may be libellous if it was made with an improper motive: ‘The motive with which a person made a defamatory communication can only be ascertained from an examination of his state of mind at the time he made it, which, as Lord Diplock said, can only be inferred from what he did or said or knew . . In the circumstances I am of the opinion that the respondent’s intentions in respect of what he was trying to convey by the letter are properly to be taken into account for the purpose of ascertaining what was the dominant motive operating on his mind at the time he wrote it . . Absent of belief in the truth of a defamatory allegation actually conveyed is, as Lord Diplock said [in Horrocks v Lowe], usually conclusive evidence of improper motive amounting to express malice. There is no valid reason for not holding that the same inference is necessarily to be drawn where the maker of the communication is proved to have intended by it to convey a defamatory allegation in the truth of which he did not believe, but which on a proper construction of the communication it is found not to bear.’

Judges:

Lord Keith of Kinkel

Citations:

Ind Summary 29-Mar-1993, [1993] SC (HL) 27, [1993] UKHL 14, 1993 SLT 527

Links:

Bailii

Citing:

CitedHorrocks v Lowe HL 1974
The plaintiff complained of an alleged slander spoken at a meeting of the Town Council. The council meeting was an occasion attracting qualified privilege. The judge at trial found that the councillor honestly believed that what he had said in the . .
Lists of cited by and citing cases may be incomplete.

Defamation, Police, Scotland

Updated: 19 May 2022; Ref: scu.80667

Elliott (Angus Gordon) v HM Advocate: HCJ 24 Mar 1995

New evidence on an appeal was admissible only in accordance with the Act.

Judges:

Lord Justice Clerk Ross

Citations:

Times 16-May-1995, 1995 JC 95, [1995] ScotHC HCJ – 2, 1995 SLT 612, 1995 SCCR 280

Links:

Bailii

Statutes:

Criminal Procedure (Scotland) Act 228(2)

Cited by:

CitedFraser 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.

Criminal Practice, Scotland

Updated: 19 May 2022; Ref: scu.80299

Drummond and Co v Lamb and Others; Drummond and Co, WS v Scottish Legal Aid Board: HL 29 Apr 1992

The cost of excess work carried out under the green form scheme, was not recoverable despite the LAB’s subsequent approval of the action.

Citations:

Gazette 29-Apr-1992, [1992] UKHL 13, 1992 SC (HL) 1, [1992] 1 WLR 163, 1992 SLT 337

Links:

Bailii

Statutes:

Legal Aid (Scotland) Act 1986 10

Jurisdiction:

Scotland

Legal Aid

Updated: 19 May 2022; Ref: scu.80137

Discovery Communications Inc v Discovery Fm Ltd: IHCS 25 Jan 2000

It was no defence to an action for trade mark infringement to assert that although the registration covered activities of the type undertaken, the claimant did not actually provide services of that precise type. It is in the nature of such registrations that they reserve to the mark holder the right to develop his activities within the registration class.

Citations:

Times 25-Jan-2000

Statutes:

Trade Marks Act 1994 10

Intellectual Property, Scotland

Updated: 19 May 2022; Ref: scu.80063

Crummock (Scotland) Ltd v Hm Advocate: HCJ 9 May 2000

A company was charged with causing a contamination of the water over a large area, and the jury was drawn from that same area, and therefore might contain members who had drunk the water alleged to have been contaminated. The issues surrounding the impartiality of a jury were different from those about a judge. They were selected at random from a wide area. It was fallacious to view them as potential complainants.

Citations:

Times 09-May-2000

Statutes:

European Convention on Human Rights

Criminal Practice, Human Rights, Scotland

Updated: 19 May 2022; Ref: scu.79701

Burke v Royal Infirmary of Edinburgh National Health Service Trust: OHCS 8 Jun 1998

A 26 year old man who had no pre-existing condition sustained damage to his lumbar spine in a fall. He suffered from constant lumbar pain and also sudden shooting pains through his left buttock and thigh to his knee. He developed an abnormal pain disorder, and was forced to retire from work on medical grounds about nine months after his accident.
Held: Where an accident victim had a pre-disposition to suffer pain and inability to work despite absence of actual physical cause, the psychological damage was claimable in damages.

Citations:

Times 08-Jun-1998, 1999 SLT 539

Cited by:

CitedIseabal 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, Scotland, Damages

Updated: 19 May 2022; Ref: scu.78751

Brooks v Civil Aviation Authority and Another: IHCS 28 Jul 2000

When the Pensions Ombudsman carried out an investigation under the Act, he was entitled to act on the information already gathered, and had no obligation to undertake a new factual enquiry. The issues in this case had been litigated repeatedly, and the ombudsman had a wide discretion as to the conduct of his investigation of the complaint, and in this case his decision could not be faulted.

Citations:

Times 28-Jul-2000

Financial Services, Administrative, Scotland

Updated: 18 May 2022; Ref: scu.78678

Boyter v Thomson: HL 15 Jun 1995

The parties bought and sold a boat. It proved defective. The pursuer sought to rely on the 1979 Act to imply a covenant for fitness. The defender denied that the pursuer thought it a business purchase.
Held: A purchaser can rely on implied covenants against a vendor in business despite the vendor’s non-disclosure. A private seller is liable as if in business when goods were sold through a professional agent.

Judges:

Lord Jauncey of Tullichettle, Lord Lloyd of Berwick, Lord Nolan, Lord Nicholls of Birkenhead and Lord Hoffman

Citations:

Gazette 06-Sep-1995, Times 16-Jun-1995, [1995] UKHL 20, [1995] 3 WLR 36, [1995] 2 AC 628, [1995] 3 All ER 135, 1995 SC (HL) 15, 1995 SLT 875, 1995 SCLR 1009

Links:

Bailii

Statutes:

Sale of Goods Act 1979 14(2) 14(3) 14(5)

Jurisdiction:

Scotland

Contract, Consumer

Updated: 18 May 2022; Ref: scu.78532

Birse v Hm Advocate: HCJ 28 Jun 2000

Where a magistrate had heard a proper description of the reasons for granting a search warrant, it was not an abuse of the suspect’s human rights to execute it, even though he had not had chance to make any representations about the search. The right to an effective remedy was not to be enshrined in UK law, and this came close to such a claim.

Citations:

Times 28-Jun-2000

Human Rights, Scotland, Criminal Practice

Updated: 18 May 2022; Ref: scu.78422

Bowers v Kennedy: IHCS 28 Jun 2000

A landowner who had no alternative means of access to his land could not lose a right of way to it by a failure to use it. It was not a right of servitude, but rather an incident of the rights inherent as owner. The inapplicability of periods and rules of limitation in such cases was well established.

Citations:

Times 27-Jul-2000, [2000] ScotCS 178, [2000] ScotCS 179

Links:

Bailii, Bailii

Land, Limitation, Scotland

Updated: 18 May 2022; Ref: scu.78518

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 AlsoBBC, 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 toBank 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 fromBank 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 AlsoThe 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 fromBank 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 toBank 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’. . .
CitedAMEC 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 AlsoThe Governor and Company of the Bank of Scotland v Dunedin Property Investment Company Ltd OHCS 8-Jun-1999
. .
CitedProfile 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 Wanser Ltd: 1891

A landlord of Scottish property began proceedings after a winding up order for sequestration of the company’s goods on the premises in order to answer for future rent.
Held: North J allowed the sequestration to continue, being satisfied that under Scottish law the landlord was a secured creditor at the date of commencement of the winding up, and therefore in the same position as a mortgagee Proceedings in insolvency begun without the stipulated leave should not be regarded as irretrievably null but rather as existing and capable of redemption by the late giving of leave.

Judges:

North J

Citations:

[1891] 1 Ch 305

Cited by:

CitedPark v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Scotland, Landlord and Tenant

Updated: 18 May 2022; Ref: scu.567273

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 fromAR, 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 HouseAR 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:

CitedVizcaya 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

Lord Advocate’s Reference (No 1 of 1985): HCJ 1986

The Court a claim as to the relevancy of an indictment of perjury.
Held:
Lord Justice General Emslie said: ‘All that is required is that it should be clearly understood that a charge of perjury will not lie unless the evidence alleged to be false was both competent and relevant at the earlier trial either in proof of the libel or in relation to the credibility of the witness’.

Judges:

Lord Justice General Emslie

Citations:

1986 JC 137

Cited by:

CitedHer Majesty’s Advocate v Coulson HCJ 1-Jun-2015
Note. The accused faced a charge of perjury. In an earlier trial, itself for perjury, the defender (the first defender), acting without legal representation had called the now accused to give evidence as to whether accused, as editor of the News of . .
Lists of cited by and citing cases may be incomplete.

Scotland, Crime

Updated: 18 May 2022; Ref: scu.547553

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:

CitedApollo 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 . .
CitedApollo 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 . .
CitedApollo 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:

CitedPrudential 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:

CitedRoberts 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:

CitedFarstad 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:

CitedCardle 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:

CitedLeech 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:

CitedRegina 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 . .
CitedRegina (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 . .
AppliedRegina 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 . .
CitedRegina (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 . .
CitedBowman 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 . .
CitedRegina 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 . .
CitedPrudential 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:

CitedJones 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:

CitedRoberts 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 . .
CitedLord 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 . .
CitedHiggs 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 . .
CitedBarton 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:

CitedRoyal 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:

CitedJohnston 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 . .
CitedAXA 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:

CitedMoncrieff 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:

CitedMelville 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:

CitedRobb 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

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:

CitedMajrowski 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:

CitedMajrowski 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:

CitedMajrowski 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

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:

CitedRegina 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

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:

FollowedDaks 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 . .
CitedBradford 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:

CitedSanderson 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:

CitedSanderson 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:

CitedWatson 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 . .
CitedB 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:

CitedMcTear 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

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:

CitedBritish 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 . .
CitedLondon 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 . .
CitedNirah 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

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:

CitedRegina 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 . .
CitedHer 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

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 followedRobertson v Turnbull HL 1982
. .
CitedJD 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:

CitedGregg 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

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:

CitedIseabal 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

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:

CitedPolkey 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:

CitedLambe 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 . .
CitedKing 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

Campbell v Dunoon HA: OHCS 1993

Citations:

[1993] IRLR 496

Jurisdiction:

Scotland

Citing:

CitedPolkey 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:

CitedDunnachie 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

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:

CitedBurnett’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

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:

CitedThomson 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

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:

AdoptedArcari v Dunbartonshire County Council 1948
. .
CitedGlasgow 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

Arcari v Dunbartonshire County Council: 1948

Judges:

Lord President Cooper

Citations:

1948 SC 62

Jurisdiction:

England and Wales

Citing:

AdoptedHarper 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

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:

CitedFree 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

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:

AppliedStuurman 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. . .
OverruledTudhope v McCarthy 1985
. .
OverruledMcGeown v HM Advocate 1989
. .
OverruledConnachan v Douglas 1990
. .
OverruledHM Advocate v Mechan 1991
. .

Cited by:

CitedDyer 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

McCusker v Saveheat Cavity Wall Insulation Ltd: 1987

Judges:

Lord Justice-Clerk Ross

Citations:

1987 SLT 24

Citing:

CitedBeattie 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:

CitedJackson 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:

CitedMcCusker v Saveheat Cavity Wall Insulation Ltd 1987
. .
CitedJackson 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

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:

CitedJackson 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

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:

CitedMcGraddie 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:

CitedL 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:

CitedImperial 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

Neill v Greater Glasgow Health Board: 1994

Citations:

[1996] SC 185, [1994] SLR 673

Cited by:

CitedBaker 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

Cameron v HM Advocate: 1991

Citations:

1991 JC 252

Cited by:

CitedFraser 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

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:

AppliedElliot 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 . .
MentionedFarstad 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:

CitedMulti-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

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:

CitedInveresk 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