Category: Scotland

The Advocate General for Scotland v A Decision of The Upper Tribunal, Re Assessments To Tax Made On Murray Group Holdings Ltd and Others: SCS 4 Nov 2015

Second Division Inner House) The AG appealed from a finding that a tax avoidance was not a sham. TH AG brought a new argument, that the payment of the sums to the remuneration trust involved a redirection of the employee’s earnings and accordingly did not exclude those earnings from the charge to income tax.
Held: The argument succeeded. The appeal was allowed. The central concept in the tax regime governing employment income is the payment of emoluments or earnings derived from employment; and an employer who pays emoluments or earnings to or on account of an employee is obliged to deduct tax in accordance with the PAYE Regulations.
Income, which is derived from an employee’s work qua employee, is an emolument or earnings, and that it is assessable to income tax, even if the employee requests or agrees that it be redirected to a third party. The Inner House held that the scheme, which involved payments into the Principal Trust and the application of the funds through the sub-trusts, amounted to a redirection of the employee’s earnings and did not remove the employer’s liability to pay income tax under the PAYE system. It held that the redirection occurred when the employing company paid the sums to the Principal Trust; the fact that the employee took the risk that the trustee would not apply the funds as he requested was irrelevant. The payments by the employing company into the Principal Trust were derived from the employee’s work as an employee and so were emoluments or earnings.

Judges:

Lord Drummond Young

Citations:

[2015] ScotCS CSIH – 77, 2016 SCLR 485, [2016] STC 468, [2015] BTC 36, 2016 SC 201, 2015 GWD 36-583

Links:

Bailii

Statutes:

Income and Corporation Taxes Act 1988

Jurisdiction:

Scotland

Citing:

At FTTTx – Murray Group Holdings and Others v Revenue and Customs FTTTx 29-Oct-2012
FTTTx Income Tax and NIC – Schedule E – emoluments/earnings – tax avoidance scheme – Remuneration Trust – employees’ individual sub-trusts – ‘protectors’ – (1) whether payments by employer into trust represent . .
Appeal From – Revenue and Customs v Murray Group Holdings Ltd and Others UTTC 8-Jul-2014
UTTC Income Tax and NIC – emoluments/earnings – tax avoidance scheme – remuneration trust – employees’ individual sub-trusts – ‘protectors’ – (1) whether payments into sub-trusts were emoluments/earnings subject . .

Cited by:

Appeal from – RFC 2012 Plc (Formerly The Rangers Football Club Plc) v Advocate General for Scotland SC 5-Jul-2017
The Court was asked whether an employee’s remuneration is taxable as his or her emoluments or earnings when it is paid to a third party in circumstances in which the employee had no prior entitlement to receive it himself or herself.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 18 August 2022; Ref: scu.558138

Aberdeen Asset Management Plc v HM Revenue and Customs: SCS 23 Oct 2013

Inner House – The Court analysed the nature of the rights which a tax avoidance scheme, involving an offshore employee benefits trust and family benefit trusts and shares in Isle of Man companies, had conferred on the relevant employees. The employing company had accepted that the sums which it had paid though the employee benefits trust to an Isle of Man company were taxable as emoluments and that the scheme was ineffective to reduce the value of those emoluments. The question was whether the employing company was liable to pay the tax under the PAYE system or the benefited employees individually should pay. The issue, to which the gloss was unexceptionably applied, was whether the money in an Isle of Man company, whose shares the employee had acquired through the scheme, was to be treated as being received by the employee so that there was ‘payment’ within the meaning of section 203 of ICTA and the 1993 Regulations.
Held: Lord Drummond Young said: ‘In considering what amounts to payment for the purposes of the PAYE legislation, it is important in my opinion to bear in mind that money is a medium of exchange. In practical terms, therefore, the crucial question is whether funds have been placed in a position where as a practical matter they may be spent by the employee as he wishes; it is at that point that the employee can be said to obtain the benefit of those funds. If the PAYE legislation is construed purposively it is in my view obvious that it is such a benefit that is to be taxed. For this purpose it is not appropriate to deconstruct the precise legal nature of the employee’s rights, drawing fine distinctions according to the methods that he must adopt in order to use the funds for his benefit. The fact that the employee has practical control over the disposal of the funds is sufficient to constitute a payment for the purposes of the legislation.’

Judges:

Lord Drummond Young, Lord President (Lord Gill) and Lord Glennie

Citations:

[2013] ScotCS CSIH – 84, 2014 SC 271, 2013 GWD 40-773, [2013] BTC 726, [2014] STC 438, 2014 SLT 54

Links:

Bailii

Jurisdiction:

Scotland

Citing:

At FTTTx – Aberdeen Asset Management Plc v Revenue and Customs FTTTx 29-Oct-2010
Income Tax; emoluments; money’s worth; transfer of shares; readily convertible asset; Ramsay approach; tax avoidance scheme; Employee Benefit Trust; Discounted Options Scheme for employees in financial services industry; establishment of employee . .
At UTTC – Aberdeen Asset Management Plc v HMRC UTTC 9-Dec-2011
UTTC Income Tax; emoluments; tax avoidance scheme; transfer of shares; whether a payment -No; whether shares a readily convertible asset – Yes; Income and Corporation Taxes Act 1988 sections 1, 19, 131, 202AandB, . .

Cited by:

Cited – RFC 2012 Plc (Formerly The Rangers Football Club Plc) v Advocate General for Scotland SC 5-Jul-2017
The Court was asked whether an employee’s remuneration is taxable as his or her emoluments or earnings when it is paid to a third party in circumstances in which the employee had no prior entitlement to receive it himself or herself.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Income Tax

Updated: 18 August 2022; Ref: scu.517015

Cramaso Llp v Viscount Reidhaven’s Trustees: SCS 11 May 2010

Outer House – The pursuer said that it had been misled into taking a lease of a grouse moor by the responders making a repesentation to Mr Erskine who had conducted negotiations, and then created the pursuer as a vehicle for the lease. He sought the reduction of the contract and damages.
Held: Mr Erskine was the directing mind of the appellant, and that he had decided to enter into the contract in reliance upon a negligent misrepresentation contained in an email sent to him some weeks before the appellant was formed. Howeer the allegation of fraud had not been established. The request was refused. The appellant could not recover damages because it had not been in existence at the time when the email was sent. Although the respondents had owed a duty of care to Mr Erskine, no such duty could in his view have been owed at that time to the appellant, since a non-existent entity could not hold any right or be owed any duty.

Judges:

Lord Hodge

Citations:

[2010] ScotCS CSOH – 62

Links:

Bailii

Citing:

Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .

Cited by:

Appeal from – Cramaso Llp v Rt Hon Ian Derek Francis OgilIe-Grant, Earl of Seafield and Others SCS 7-Dec-2011
Inner House The defenders owned a grouse moor. There had been difficulties with the grouse population, and efforts over several years to restore them. The defenders sought to find a tenant. Negotiations were conducted with Mr Erskine, and an email . .
At Outer House – Cramaso Llp v Ogilvie-Grant, Earl of Seafield and Others SC 12-Feb-2014
The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .
At Outer House – Serious Fraud Office v Papachristos and Another CACD 19-Sep-2014
The applicants challenged their convictions and sentences for conspiracy to corrupt. They owned a company manufacturing fuel additives. Technology developments meant that they came under increasing pressure on sales. They were said to have entered . .
Lists of cited by and citing cases may be incomplete.

Scotland, Negligence

Updated: 18 August 2022; Ref: scu.414917

Engler v Her Majesty’s Advocate: HCJ 4 May 2010

Citations:

[2010] ScotHC HCJAC – 42, 2010 JC 235

Links:

Bailii

Statutes:

Extradition Act 2003

Cited by:

Cited – Kapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .
Lists of cited by and citing cases may be incomplete.

Scotland, Extradition

Updated: 18 August 2022; Ref: scu.414932

Russell and East Dunbartonshire Council: SIC 22 Sep 2011

SIC This decision considers whether East Dunbartonshire Council (the Council) complied with the technical requirements of the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (the EIRs) in responding to information request made by Ms Russell.

Citations:

[2011] ScotIC 191 – 2011

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 16 August 2022; Ref: scu.447395

Ben Henderson and Perth and Kinross Council: SIC 5 Jan 2012

Mr Ben Henderson asked Perth and Kinross Council (the Council) for (a) information relating to the actions and practices of Building Standards staff which resulted in recent disciplinary action, and (b) information on actions or practices of staff in the past which gave reason for suspicion that Council staff, particularly those from the Building Standards and Planning section, may have been involved in similar actions or practices prior to the current case. The Council refused to disclose the information on the basis that it was exempt from disclosure under sections 30(c) (effective conduct of public affairs) and 38(1)(b) (personal data) of the Freedom of Information (Scotland) Act 2002 (FOISA). Following a review, Mr Henderson remained dissatisfied and applied to the Commissioner for a decision.
Following an investigation, the Commissioner found that the Council had partially failed to deal with Mr Henderson’s request for information in accordance with Part 1 of FOISA.
The Commissioner found that by applying the exemption in section 38(1)(b) of FOISA to all of the withheld information, which fell within scope of part (a) of Mr Henderson’s request, the Council complied with Part 1.
However, in failing to notify Mr Henderson that it does not (and did not at the time of Mr Henderson’s request) hold any relevant recorded information which would address part (b) of his request, the Council failed to comply with Part 1 and in particular section 17(1) of FOISA. Since this decision makes the position clear on this point, the Commissioner did not require the Council to take any action in relation to this breach.

Citations:

[2012] ScotIC 003 – 2012)

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 16 August 2022; Ref: scu.451505

Dean v The Lord Advocate and Another: HCJ 23 Sep 2016

Application for Leave to Appeal to UK Supreme Court – refused

Citations:

[2016] ScotHC HCJAC – 83, 2017 SCCR 17, 2016 GWD 38-672, 2017 SCL 170, 2017 SLT 121

Links:

Bailii

Statutes:

European Convention on Human Rights 3, Extradition Act 2003

Jurisdiction:

Scotland

Cited by:

See Also – Lord Advocate v Dean HCJ 24-Nov-2016
Application for Leave to Appeal to UK Supreme Court – refused . .
Leave refused – Lord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .
Lists of cited by and citing cases may be incomplete.

Extradition, Human Rights

Updated: 16 August 2022; Ref: scu.577887

Special Case – The Trustees of James Spears and Others: SCS 21 Jun 1873

Circumstances in which held (1) that a widow was not entitled to a liferent of a residue; and (2) that trustees (though not bound) were entitled to make advances from the income of the estate for the education and maintenance of the children.

Citations:

[1873] SLR 10 – 509

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 16 August 2022; Ref: scu.576809

Lord Advocate v Dean: HCJ 24 Nov 2016

Application for Leave to Appeal to UK Supreme Court – refused

Judges:

Lady Paton, Lord Drummond Young, Lady Clark of Calton

Citations:

[2016] ScotHC HCJAC – 117, 2017 SCCR 17, 2017 SCL 170, 2016 GWD 38-672, 2017 SLT 121

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Dean v The Lord Advocate and Another HCJ 23-Sep-2016
Application for Leave to Appeal to UK Supreme Court – refused . .

Cited by:

Leave refused (2) – Lord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .
Lists of cited by and citing cases may be incomplete.

Extradition

Updated: 16 August 2022; Ref: scu.577920

Glen Cawthra and Orkney Islands Council: SIC 9 Oct 2014

SIC On 4 June 2014, Mr Cawthra asked Orkney islands Council (the Council) for information relating to a specified route over a period of 15 years. The Council provided Mr Cawthra with some information, but informed him that it was not obliged to comply with his request as the cost of doing so would be more than andpound;600.
Following an investigation, the Commissioner concluded that there was insufficient evidence to allow her to accept the Council’s cost estimate. She required the Council to give another response to Mr Cawthra’s request.

Citations:

[2014] ScotIC 219 – 2014

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 16 August 2022; Ref: scu.538106

B v Scottish Court Service: SIC 17 Sep 2013

On 27 October 2012, Mr and Mrs B (the Bs) made a request to the Scottish Court Service (SCS) information concerning a court case at Kilmarnock Sheriff Court. The SCS informed the Bs that the information was exempt from disclosure. On 20 November 2012, the Bs submitted a further request for information to the SCS regarding the same court case and the SCS responded to it a few days later. Following a review of the SCS’s responses to both requests, the Bs remained dissatisfied and applied to the Commissioner for a decision
After investigation, the Commissioner found that that the SCS was entitled to withhold all the information covered by the request of 27 October 2012 under section 37(1)(a)(i) and (iii) of FOISA. The Commissioner found that the SCS did not hold any information covered by the request of 20 November 2012, but had failed to give the Bs notice to this effect as required by section 17(1) of FOISA.

Citations:

[2013] ScotIC 207 – 2013

Links:

Bailii

Jurisdiction:

Scotland

Scotland, Information

Updated: 16 August 2022; Ref: scu.516078

Kapri v The Lord Advocate (Representing The Government of The Republic of Albania): SC 10 Jul 2013

The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in the United Kingdom as an illegal immigrant, another Albanian national named Ylli Pepa, was killed. On the day after this incident the appellant left London and travelled to Glasgow, where he assumed a false Macedonian identity. It was alleged that he had been responsible for Ylli Pepa’s murder. The Metropolitan Police were unable to locate him, and he continued to live in Glasgow for the time being under that false identity.
Held: The appeal succeeded: ‘I would recall the Appeal Court’s interlocutor of 1 June 2012 by which it dismissed the appeal against the sheriff’s order of 20 January 2011, and remit the case to the High Court of Justiciary for further consideration. I would set aside the Appeal Court’s finding on 2 February 2012 that the proposed new evidence contained in the reports prepared by Dr Bogdani and Ms Vickers was irrelevant to the ground of appeal and ought not to be admitted. The Lord Advocate should be permitted to adduce evidence to rebut any conclusions in the appellant’s favour that may be derived from those reports and any other admissible evidence that he may lead. The appellant must remain in custody for the time being. ‘

Judges:

Lord Hope, Deputy President, Lady Hale, Lord Kerr, Lord Sumption, Lord Toulson

Citations:

[2013] UKSC 48, 2013 SCL 653, 2013 GWD 25-493, [2013] 1 WLR 2324, [2013] WLR(D) 281, [2013] HRLR 31, 36 BHRC 136, 2013 SCCR 430, [2013] 4 All ER 599, 2013 SLT 743, 2013 SC (UKSC) 311, UKSC 2012/0192

Links:

Bailii, Bailii Summary, WLRD, SC, S Summary

Statutes:

Extradition Act 2003

Jurisdiction:

England and Wales

Citing:

At HCJ – Kapri v The Lord Advocate for and On Behalf of The Court of First Instance Judicial District of Elbasan, Albania HCJ 2-Feb-2012
The applicant objected to his proposed extradition to Albania, saying that he would not receive a fair trial. An examination of the reports disclosed that counsel for the Lord Advocate’s analysis of them was correct. None of the examples of the . .
Appeal from – Kapri v The Lord Advocate Representing The Government of The Republic of Albania HCJ 1-Jun-2012
. .
Cited – Goatley v Her Majesty’s Advocate and Another HCJ 12-Jul-2006
. .
Cited – La Torre v The Lord Advocate and Another HCJ 8-Nov-2006
The Lord Advocate had conceded that devolution minutes were competent in proceedings under the 2003 Act. . .
Cited – Trajer v The Lord Advocate HCJ 19-Dec-2008
. .
Cited – Engler v Her Majesty’s Advocate HCJ 4-May-2010
. .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
Cited – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Cited – Mucelli, Regina (on The Application of) v The Government of Albania Admn 27-Jan-2012
Cranston J said that in his view the law and practice in Albania was such that there was no real risk that the applicant would suffer a flagrant denial of justice on his return to Albania, as he was entitled to a retrial on the merits of the case . .
Cited – Zeqaj v Government of Albania Admn 20-Feb-2013
Appeal, under section 103 from the decision to send the matter to the Secretary of State for Home Affairs to consider extraditing Zeqaj to Albania to serve a sentence of 23 years in connection with murder and firearms offences. . .
Cited – Zeqaj v Secretary of State for the Home Department CA 10-Dec-2002
The applicant had failed in his asylum application, and an order given for his repatriation. The order had however by mistake ordered his return to Albania, rather than Serbia. . .
Approved – Devaseelan v Secretary of State for the Home Department IAT 2003
The tribunal asked as to the relevance of the possible mistreatment of the applicant if returned to his home country: ‘The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case – where the right . .
Cited – Mamatkulov And Askarov v Turkey ECHR 4-Feb-2005
Grand Chamber – while there may have been reasons for doubting whether the applicants would receive a fair trial, there was not sufficient information to show that any possible irregularities in the trial were liable to constitute a flagrant denial . .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Omar Othman (Abu Qatada) v The United Kingdom ECHR 17-Jan-2012
The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that . .

Cited by:

See Also – Kapri v Her Majesty’s Advocate (For The Republic of Albania) HCJ 25-Apr-2014
. .
See Also – Kapri v Her Majesty’s Advocate, Re In The Application By (Albania) HCJ 17-Jun-2014
. .
Cited – Lord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .
Lists of cited by and citing cases may be incomplete.

Scotland, Immigration, Human Rights, Extradition

Updated: 16 August 2022; Ref: scu.512252

Kapri v The Lord Advocate Representing The Government of The Republic of Albania: HCJ 1 Jun 2012

Citations:

[2012] ScotHC HCJAC – 84

Links:

Bailii

Statutes:

Extradition Act 2003

Jurisdiction:

Scotland

Citing:

See Also – Kapri v The Lord Advocate for and On Behalf of The Court of First Instance Judicial District of Elbasan, Albania HCJ 2-Feb-2012
The applicant objected to his proposed extradition to Albania, saying that he would not receive a fair trial. An examination of the reports disclosed that counsel for the Lord Advocate’s analysis of them was correct. None of the examples of the . .

Cited by:

Appeal from – Kapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .
See Also – Kapri v Her Majesty’s Advocate (For The Republic of Albania) HCJ 25-Apr-2014
. .
See Also – Kapri v Her Majesty’s Advocate, Re In The Application By (Albania) HCJ 17-Jun-2014
. .
Lists of cited by and citing cases may be incomplete.

Extradition

Updated: 16 August 2022; Ref: scu.515061

AB, Re Judicial Review: SCS 5 Feb 2013

Application for Judicial Review of a decision by the United Kingdom Border Agency on behalf of the Secretary of State for the Home Department dated 3 May 2012 refusing to treat the petitioner’s further submissions as a fresh claim, etcetera

Judges:

Lord Stewart

Citations:

[2013] ScotCS CSOH – 20

Links:

Bailii

Jurisdiction:

Scotland

Immigration

Updated: 16 August 2022; Ref: scu.470818

BSA International Sa v Irvine and Others: SCS 28 Jan 2010

Outer House – further opinion

Citations:

[2010] ScotCS CSOH – 12, [2010] CSOH 12

Links:

Bailii

Citing:

See Also – BSA International Sa v Irvine and Others SCS 27-May-2009
Opinon – the defenders had sold their shares in a company to the pursuer under a share purchase agreement. The pursuers asserted negligent misrepresentation and breach of warranty . .
Lists of cited by and citing cases may be incomplete.

Scotland, Company, Torts – Other

Updated: 14 August 2022; Ref: scu.401928

Anderson v Shetland Islands Council and Another: SCS 16 Feb 2010

The petitioner complained that the responders had constructed various properties near her house in such a way as to redirect large volumes of run-off water onto her property.
Held: The petition was dismissed. The petitioner had not relevantly averred circumstances that would give her a title to sue under the statutory provisions to which she referred. Nor did her averments show that the respondents were in breach of their respective duties under the statutes or that they had in any way acted ultra vires.

Judges:

Lord Wheatley, Lord Hardie, Lord Marnoch

Citations:

[2010] ScotCS CSIH – 15, 2010 GWD 9-146, 2011 SLT 196

Links:

Bailii

Cited by:

See Also – Anderson v Shetland Islands Council and Another SCS 15-Nov-2011
. .
Appeal from – Anderson v Shetland Islands Council and Another SC 29-Feb-2012
The claimant sought leave to appeal. Each party now sought security for costs against the other. Her action related to water damage to her house said to have been caused by road mprovements and building works erected by and with the approval of the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 14 August 2022; Ref: scu.401009

Multi-Link Leisure Developments v North Lanarkshire Council: SCS 30 Dec 2009

Landlords appealed against a ruling that the ‘full market value’ of the presents to be paid by the tenants on exercising an option contained in their lease was to be set by reference to its intended use.
Held: The appeal succeeded. The words ‘full market value’ were to be construed as meaning what they said. Considerations which might be relevant to market value were not to be ignored unless there were express words to that effect. Decree was pronounced in terms of the conclusion to the landlords’ counterclaim, to the effect that the contract resulting from the exercise of the option clause had been rescinded, the option was spent and it could not be exercised during the remaining term of the lease.

Judges:

Lords Carloway and Hardie and Sir David Edward QC

Citations:

[2009] ScotCS CSIH – 96, 2010 SC 302

Links:

Bailii

Citing:

Appeal From – Multi Link Leisure Developments Ltd v North Lanarkshire Council SCS 31-Jul-2009
The tenant exercised an option in the lease for the purchase of the land. The parties disputed the price payable.
Held: The tenant succeeded. The full market value was to be assessed by reference only to the use of the subjects as a golf . .

Cited by:

Appeal from – Multi-Link Leisure Developments Ltd v Lanarkshire Council SC 17-Nov-2010
The parties disputed the effect of an option clause in a lease, and particularly whether, when fixing the price, potential for development was to be included. The clause required the ‘full market value’ to be paid. The tenant appealed.
Held: . .
Cited – Royal Bank of Scotland Plc v Wilson and Another SC 24-Nov-2010
(Scotland) Neighbours had each granted a standard security over their respective properties to the bank. The charge agreements contained personal covenants to repay the sums borrowed on demand. The land-owners appealed against an order for . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract

Updated: 11 August 2022; Ref: scu.392560

Lidl UK Gmbh v The Scottish Ministers and Another: SCS 18 Oct 2006

The appellants challenged a decision of the responders to refuse planning permission for a retail unit to be developed on a site outside the Irvine town centre. The relevant provision in the local plan required the sequential approach to be adopted to proposals for new retail development out with the town centre boundaries. Among the criteria that had to be satisfied was the requirement that no suitable sites were available, or could reasonably be made available, in or on the edge of existing town centres. In other words, town centre sites were to be considered first before edge of centre or out of town sites. The reporter held that the existing but soon to be vacated Lidl town centre site was suitable for the proposed development, although it was clear as a matter of fact that this site could not accommodate it.
Held: The question for a planning authority applying policy guidelines as to the requrement to prefer town centre development is whether an alternative site is suitable for the proposed development, not whether the proposed development can be altered or reduced so that it can be made to fit an alternative site.

Judges:

Lord Glennie

Citations:

[2006] ScotCS CSOH – 165

Links:

ScotC, Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Tesco Stores Ltd v Dundee City Council SC 21-Mar-2012
The company challenged the grant of planning permission for a competitor to open a new supermarket within 800 metres of its own, saying that the Council had failed to apply its own planning policies, which required preference of suitable sites not . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 09 August 2022; Ref: scu.245476

Clark v Adie: HL 1877

The court should look to the ‘pith and marrow’ of the invention to see whether a patent infringement had occurred. For a claim be made for a ‘subordinate’ invention, it would have been necessary distinctly to claim it in the patent.

Judges:

Lord Cairns

Citations:

(1877) 2 App Cas 315

Jurisdiction:

Scotland

Cited by:

Cited – C Van Der Lely NV v Bamfords Ltd HL 1963
The pith and marrow doctrine on the construction of patents claims was ‘necessary to prevent sharp practice.’ As to the doctrine of enablement as explained by Lord Westbury: ‘Lord Westbury must have meant experiments with a view to discovering . .
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Cited – Catnic Components Ltd and Another v Hill and Smith Ltd HL 1982
The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The patent was for a novel type of galvanised steel lintel, which . .
Cited – Eli Lilly v Actavis UK Ltd and Others SC 12-Jul-2017
The issue raised on this appeal and cross-appeal is whether three products manufactured by Actavis would infringe a patent whose proprietor is Lilly, namely European Patent (UK) No 1 313 508, and its corresponding designations in France, Italy and . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 09 August 2022; Ref: scu.218732

Wilson (Liquidator of The North British Lactina Manufacturing Co, Ltd), Petitioner: SCS 16 Dec 1885

In a note by the liquidator in the winding-up of the North British Lactina Manufacturing Company, Limited, the certificate of intimation bore that the intimation had been made to the parties named in the interlocutor of Court by two apprentices to a writer in Glasgow, by posting, on certain dates named, in the Glasgow Post Office, a print of the note with a copy of the interlocutor endorsed thereon, in registered letters, and the certificate was signed by the apprentices. The Court, on their attention being directed to this fact by the Clerk of Court when the petitioner appeared to move in the Single Bills that the prayer of the note should be granted, declined to sustain an intimation so signed as complying with the 3d and 4th sections of the Citation Amendment (Scotland) Act 1882.

Citations:

[1885] SLR 23 – 227

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 08 August 2022; Ref: scu.580410

Paterson’s Trustees v Caledonian Heritable Security Co (Ltd), and Liquidator: SCS 17 Dec 1885

A heritable security company, the objects of which were to lend money on heritable security, and to ‘receive money by way of loan by cash-credit, debenture, deposit, or otherwise,’ and to do all such things as were conducive to these objects, received through their manager a loan, which he applied to the purchase of heritable property over which the company had lent money on a postponed bond, and which the prior bondholder had brought to sale. There being a doubt as to the company’s power to hold heritage, the manager made the purchase in his own name; he also granted the lender a bond for his money over the subjects. The company and its liquidator afterwards disputed liability for the loan, on the ground that the company had no authority to purchase or hold heritable property, that the manager was the proper debtor, and that he had no authority from the directors for the transaction. Held that the company having borrowed the money through its proper officer, who was entitled to accept money on loan, the lender had no concern with inquiring into its powers to apply it, and was therefore entitled to demand repayment.
Opinions that the purchase by such a company of heritage in order to avoid a sacrifice of its loan was not ultra vires.

Judges:

Lord M’Laren, Ordinary

Citations:

[1885] SLR 23 – 238

Links:

Bailii

Jurisdiction:

Scotland

Company

Updated: 08 August 2022; Ref: scu.580404

Bruce and Others (Fishermen of Boddam) v Aiton: SCS 16 Dec 1885

The proprietor of a harbour who exacts harbour dues is bound, so far as these dues will go, to light and otherwise maintain the harbour.
The proprietor of a harbour was sued by the fishermen using it for declarator that he was bound to maintain and exhibit at his own expense certain specified lights, and to have him ordained to do so. It was proved that the harbour dues yielded a revenue to the proprietor, but that the revenue was not enough to provide for the lights and also to pay the interest on a sum of money expended by him on improvements on the harbour executed by him under a Provisional Order obtained from the Board of Trade. The Court held that under the local statutes and the relative Provisional Order of the Board of Trade applicable to the harbour, the proprietor was bound to apply the revenue derived from the harbour dues to the maintenance of the harbour (which includes lighting) in the first instance till they were exhausted, if necessary, and that the pursuers were entitled to declarator to that effect, the particular manner in which the obligation was to be carried out being left to be prescribed by the Commissioners of Northern Lighthouses.

Judges:

Lord Trayner, Ordinary

Citations:

[1885] SLR 23 – 222

Links:

Bailii

Jurisdiction:

Scotland

Local Government, Transport

Updated: 08 August 2022; Ref: scu.580394

Newlands v M’Kinlay: SCS 16 Dec 1885

In an action for payment of the balance of an account one of the entries in the account sued upon was a cash advance of pounds 300. The pursuer recovered from the defender, under a diligence against havers, a cash-book kept by him while manager of his father’s business (to which he had succeeded at the date of the action), containing this entry, ’13th July 1874. To Alexander M’Kinlay, per W. H. R., pounds 300.’ The pursuer then referred the constitution of the debt of pounds 300 to the defender’s oath. The defender deponed that the entry in the cash-book was made for the purpose of recording the receipt by him of pounds 300 from Newlands, the pursuer, on that day, and that the original entry had been ‘per W. N.’ over which he had superinduced the letters ‘W. H. R.’ The defender further deponed that the money had been repaid. Held (1) that the debt had not been proved scripto; (2) that the qualification of repayment was intrinsic of the defender’s oath. Defender assoilzied.

Judges:

Lord Trayner, Ordinary

Citations:

[1885] SLR 23 – 228

Links:

Bailii

Jurisdiction:

Scotland

Contract, Litigation Practice

Updated: 08 August 2022; Ref: scu.580403

Ian M Irving v Argyll and Bute Council: SIC 28 Jan 2014

SIC On 29 August 2013, Mr Irving asked Argyll and Bute Council (the Council) for the identity of a complainant. The Council withheld the information in terms of regulation 11(2) of the EIRs on the basis that it was personal data, the disclosure of which would breach the first data protection principle.
Following an investigation, the Commissioner accepted that the Council was entitled to withhold the information on this basis.

Citations:

[2014] ScotIC 010 – 2014

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 07 August 2022; Ref: scu.522698

Black v Murray: 1870

Citations:

[1870] Scots Law Reporter 261

Jurisdiction:

Scotland

Cited by:

Cited – Sean Sweeney, Graham Edward Camps v Macmillan Publishers Limited, Danis Rose ChD 22-Nov-2001
The claimants were trustees of the estate of James Joyce, and complained at the publication of unpublished parts of the work Ulysses in a readers edition by the defendants. Published works are protected for fifty years after the author’s death, but . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 06 August 2022; Ref: scu.181345

English Speaking Union Scottish Branches Educational Fund, Re Judicial Review: SCS 27 Oct 2009

Lord Bonomy set out the condition to be passed for a charities trading activities to be chartable for exemption from rating namely that the Court should look at the whole of the evidence before it and decide, on a broad basis, whether the premises were being used wholly or mainly for charitable purposes, so as to give content to the full expression ‘wholly or mainly used’.

Judges:

Lord Bonomy

Citations:

[2009] ScotCS CSOH – 139, [2010] RA 227

Links:

Bailii

Cited by:

Cited – Kenya Aid Programme v Sheffield City Council Admn 22-Jan-2013
The claimant challenged a decision that it was liable for non domestic rates in respect of some commercial units, on the basis that the use by the charity was not itself charitable.
Held: ‘there is no reason for limiting the ambit of the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Rating, Charity

Updated: 04 August 2022; Ref: scu.377245

Glasgow City Council v Scottish Information Commissioner: SCS 30 Sep 2009

‘These appeals raise important questions as to the interpretation and application of the Freedom of Information (Scotland) Act 2002. In particular, questions arise as to what is meant by ‘information’, as that term is used in the Act; as to who is to be treated as the ‘applicant’, as that term is used in the Act, when a request for information is made by an agent acting on behalf of another person; as to the effect of section 11 of the Act, which enables an applicant to express a preference as to the means by which information is to be provided; as to the application of the exemption, by virtue of section 25(1) of the Act, of ‘information which the applicant can reasonably obtain other than by requesting it under section 1(1)’; and as to the implications of any duty of fairness incumbent upon the Scottish Information Commissioner (‘the Commissioner’) in relation to decisions taken under section 49 of the Act.’

Judges:

Lord Reed, Lord Clarke, Lord Hardie

Citations:

[2009] ScotCS CSIH – 73, 2009 GWD 40-69, 2010 SLT 9

Links:

Bailii

Statutes:

Freedom of Information (Scotland) Act 2002

Cited by:

Cited – The Independent Parliamentary Standards Authority v The Information Commissioner and Another CA 28-Apr-2015
A journalist had requested the appellant who published the claims made by Members of Parliament for expenses to its website had requested in addition copies of the receipts produced by the MPs to justify three claims. The Authority provided a . .
Lists of cited by and citing cases may be incomplete.

Scotland, Information

Updated: 04 August 2022; Ref: scu.375409

Royal Bank Of Scotland Plc v Davidson and Another: SCS 30 Sep 2009

The bank claimed repayment of the company’s debts by the defender guarantors. The defenders arged that the personal guarantees had been avoided by the negligent misrepresentations of the pursuer.

Judges:

Lord Drummond Young

Citations:

[2009] ScotCS CSOH – 134, 2009 GWD 38-636, 2010 SLT 92

Links:

Bailii

Scotland, Banking

Updated: 04 August 2022; Ref: scu.375411

Reclaiming Motion Charles McCann v The State Hospital Board for Scotland: SCS 12 Aug 2014

Inner House – The house considered a reclaiming motion (appeal) as to the lawfulness of a decision by the respondents to prohibit smoking and the possession of tobacco in the buildings and grounds of the State Hospital, Carstairs. The Board submitted that the 2003 Act principles did not apply to the impugned decision, that Mr McCann’s article 8 right to respect for his private life was not engaged, or, if it was, the impugned decision was a proportionate one which did not infringe his article 8 right.
Held: The Lord Justice Clerk with whom Lord Brodie agreed, allowed the appeal and refused the prayer of the petition. The Board was exercising its powers of management under the 1978 Act when it made the impugned decision. The 2003 Act was concerned with the care and treatment of the individual patient and the impugned decision did not involve the discharge of a function under that Act. Accordingly, the 2003 Act principles had no application to the decision.

Judges:

Lord Carloway Lord Justice Clerk, Lady Paton, Lord Brodie

Citations:

2015 SC 112, [2014] ScotCS CSIH – 71, 2014 SCLR 817

Links:

Bailii

Statutes:

Mental Health (Care and Treatment) (Scotland) Act 2003

Jurisdiction:

Scotland

Citing:

Outer House – CM, Re Judicial Review SCS 27-Aug-2013
(Outer House) The prisoner, held in a high security psychiatric hospital, challenged the outright ban on smoking.
Held: The Lord Ordinary declared that the impugned decision was unlawful so far as it affected Mr McCann both because it was not . .

Cited by:

Appeal From – McCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 03 August 2022; Ref: scu.535837

Fordyce v Sir Henry Bridges, Catherine Elizabeth Mary Reid, Madeline Curling, Jane Curling, Isabella Curling, Agnes Catherine Thomson, Mary Louisa Thomson, Emily Harriet Thomson, Gertrude Eliza Thomson, Florence Jessie Thomson, And Jo: 15 Mar 1848

If all the heirs of a Scotch entail were necessary parties to a suit in this Court, touching matters in which they are interested as such heirs of entail, the suit could not proceed, not only on account of their number, but because future heirs of entail coming into esse would not be bound by any proceedings in it, as their claim is not through any persons parties to the suit.
As you cannot have, in any shape, before the Court all the heirs of entail whom you seek to bind, it would be idle to prove that some are out of the jurisdiction.
When, to avoid a failure of justice in the Court from the peculiar nature of the interest under a Scotch entail, it shall become necessary to decide the point [as to making all the heirs of a Scotch entail parties to a suit], some rule must be laid down, for which there is no precedent.
Not possible to dispute the proposition, that the heir of a Scotch entail is not bound by the proceedings in a suit to which he was no parly, he claiming under the entail, and not deriving title through anyone, a party to the suit, and having a direct interest in the subject of that suit in his own right, though not in possession.
Although the heir is not bound by the proceedings in such suit, he cannot have a decree in his own suit, unless he can shew that he was injured by the former decree, or has interests inconsistent with its directions.

Citations:

[1848] EngR 347 (C), (1847-1848) 2 Coop T Cott 325

Links:

Commonlii

Jurisdiction:

Scotland

Trusts, Land

Updated: 03 August 2022; Ref: scu.299897

Her 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 the World, had known that his staff were hacking the first defender’s telephones. The accused had denied it. The Crown now alleged that this denial was false, and charged him with perjury. He argued that the claim was irrelevant because any perjury was not as to an issue central to the case or as to ceridibility.
Held: Despite holding an evidential hearing for the purpose, the crown had quite failed to bring evidence as to the relevance of the charge.

Judges:

Lord Noble

Links:

Scot Courts

Jurisdiction:

Scotland

Citing:

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

Crime

Updated: 03 August 2022; Ref: scu.547554

Moohan and Black Gillon v The Lord Advocate: SCS 2 Jul 2014

Inner House – Challenge to denial to prisoners of right to vote in forthcoming independence referendum. They said it was contrary to Human Rights and European Law.
Held: The House refused a reclaiming motion by the petitioners.

Judges:

Lady Paton

Citations:

[2014] ScotCS CSIH – 56

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Appeal from – Moohan, Re Judicial Review SCS 19-Dec-2013
Outer House – the petitioners, each convicted serving prisoners, complained of the blanket ban on them voting in the referendum on Scottish Independence.
Held: The petition was refused. The Act was not a breach of the petitioners’ rights under . .

Cited by:

Appeal from – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Lists of cited by and citing cases may be incomplete.

Prisons, Elections, Constitutional

Updated: 03 August 2022; Ref: scu.534155

Moohan, Re Judicial Review: SCS 19 Dec 2013

Outer House – the petitioners, each convicted serving prisoners, complained of the blanket ban on them voting in the referendum on Scottish Independence.
Held: The petition was refused. The Act was not a breach of the petitioners’ rights under European law: ‘by enacting the Franchise Act, the Scottish Parliament is not exercising competence in the sphere of nationality. It is not purporting to make a decision about EU membership or EU citizenship. The process which it is putting in place by the independence referendum is not a process which will have any direct impact on the question of EU membership or EU citizenship.’

Judges:

Lord Glennie

Citations:

[2013] ScotCS CSOH – 199, 2014 GWD 3-55, 2014 SLT 213

Links:

Bailii

Statutes:

Scottish Independence Referendum (Franchise) Act 2013 3

Jurisdiction:

Scotland

Cited by:

Appeal from – Moohan and Black Gillon v The Lord Advocate SCS 2-Jul-2014
Inner House – Challenge to denial to prisoners of right to vote in forthcoming independence referendum. They said it was contrary to Human Rights and European Law.
Held: The House refused a reclaiming motion by the petitioners. . .
At Outer House – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Lists of cited by and citing cases may be incomplete.

Prisons, Elections, Human Rights, European

Updated: 03 August 2022; Ref: scu.519745