Category: Scotland

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 taken in accordance with the 2003 Act principles and also because it breached his Convention rights under articles 8 and 14 of the ECHR. The Lord Ordinary did not award damages but ruled that the finding of the breach of those articles was ‘just satisfaction’ in terms of article 41 of the ECHR.

Judges:

Lord Stewart

Citations:

[2013] ScotCS CSOH – 143

Links:

Bailii

Statutes:

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

Jurisdiction:

Scotland

Cited by:

Outer House – 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 . .
Outer House – 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: 31 July 2022; Ref: scu.515113

Trajer v The Lord Advocate: HCJ 19 Dec 2008

Citations:

[2008] ScotHC HCJAC – 78

Links:

Bailii

Jurisdiction:

Scotland

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.

Extradition

Updated: 30 July 2022; Ref: scu.304564

AB v CD: SCS 1 Nov 1904

Lord Young said: ‘everyone giving evidence in a Court of justice, being admissible as a witness, and answering the questions which are properly put to him, which those allowed by the Court are presumed to be, is privileged, and that it is in the interests of justice, and the public for whom justice is administered, that he should not give his answers under any apprehension of being liable to an action of damages should his evidence be defamatory of anyone, whether a party to the action or not. The ground upon which that rule of law is founded your Lordship has explained, and it is indeed obvious. It is in the interests of the public that the truth should be ascertained in a Court of justice, and that witnesses should give their evidence without any such apprehension or fear.’

Judges:

Lord Young

Citations:

[1904] ScotCS CSIH – 6, (1904) 7 F 22, (1904) 12 SLT 395

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Appeal from – Watson v M’Ewan HL 1905
A claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. The appellant was a doctor of medicine who had been retained by the respondent in . .
Lists of cited by and citing cases may be incomplete.

Defamation

Updated: 30 July 2022; Ref: scu.279264

The Admiralty v Blair’s Trustee: SCS 10 Dec 1915

Bankruptcy – Sequestration – Crown – Claims – Preference – Damages for Breach of Contract Payable to Admiralty – Prerogative Right of Crown to Preferential Ranking
In a sequestration the Lords Commissioners of the Admiralty claimed a preferential ranking in respect of a sum due as damages for failure by the bankrupt to fulfil a contract made with them. The trustee on the sequestrated estate rejected the claim for preferential ranking, but admitted the debt to an ordinary ranking.
Held that the trustee was right in refusing the claim to a preferential ranking and in admitting the debt to an ordinary ranking.
Scots and English law are not necessarily the same as regards the use of prerogative powers

Citations:

[1915] SLR 188, 1916 1 SLT 19, 1916 SC 247

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 28 July 2022; Ref: scu.618239

Macleod v Lewis Justices of Peace: SCS 20 Dec 1892

Citations:

[1892] SLR 30 – 186

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 July 2022; Ref: scu.613619

SN v Secretary of State for The Home Department: SCS 14 Jan 2014

Extra Division, Inner House –

Judges:

Lady Clark of Calton

Citations:

[2014] ScotCS CSIH – 7, 2014 SLT 905, [2014] CSIH 71, 2014 GWD 27-534

Links:

Bailii

Statutes:

European Convention on Human Rights 2 3 8, Nationality, Immigration and Asylum Act 2002 94(3)

Jurisdiction:

Scotland

Cited by:

Extra Div Inner House – 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.

Immigration, Human Rights

Updated: 28 July 2022; Ref: scu.520018

McGeoch, Re Judicial Review: SCS 15 Jan 2013

(Outer House, Court of Session) Challenge to refusal of legal aid.

Judges:

Lord Brodie

Citations:

[2013] ScotCS CSOH – 6, 2013 SLT 183, 2013 GWD 3-88

Links:

Bailii

Statutes:

Legal Aid (Scotland) Act 1986

Jurisdiction:

Scotland

Cited by:

Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.

Legal Aid

Updated: 28 July 2022; Ref: scu.470537

Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others: SCS 8 Mar 2011

The object of the proceedings was to protect the confidentiality of documents disclosing certain identities, and an order designed to achieve that objective had previously been made by the court.
Held: The court permitted the identities of the applicants to be withheld from public disclosure. The disclosure of their identities would be inconsistent with that order and would undermine the confidentiality which the proceedings were intended to preserve.
The court must have regard not only to the justice of its decision, but also to the justice of the procedures by which it gives it. It therefore had the inherent power, in his opinion, to withhold the identity of a party where, regardless of the outcome of the case, the disclosure of that party’s identity would constitute an injustice to him.

Judges:

Lord Reed

Citations:

[2011] ScotCS CSIH – 18, 2011 GWD 12-272, 2011 SLT 733

Links:

Bailii

Statutes:

Companies Act 2006 899

Jurisdiction:

Scotland

Citing:

See Also – Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 29-Jan-2010
. .
See Also – The Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 28-Apr-2010
. .

Cited by:

Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company, Litigation Practice

Updated: 28 July 2022; Ref: scu.430401

The Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others: SCS 28 Apr 2010

Citations:

[2010] ScotCS CSIH – 34

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 29-Jan-2010
. .

Cited by:

See Also – Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 8-Mar-2011
The object of the proceedings was to protect the confidentiality of documents disclosing certain identities, and an order designed to achieve that objective had previously been made by the court.
Held: The court permitted the identities of the . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 28 July 2022; Ref: scu.414912

Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others: SCS 29 Jan 2010

Citations:

[2010] ScotCS CSIH – 6, 2010 SLT 459, GWD 7-117, 2010 SCLR 167, 2010 SC 349

Links:

Bailii

Statutes:

Companies Act 2006 896 899

Jurisdiction:

Scotland

Cited by:

See Also – The Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 28-Apr-2010
. .
See Also – Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 8-Mar-2011
The object of the proceedings was to protect the confidentiality of documents disclosing certain identities, and an order designed to achieve that objective had previously been made by the court.
Held: The court permitted the identities of the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 28 July 2022; Ref: scu.396467

Glasgow Corporation v Central Land Board: HL 12 Dec 1955

The House asked how far the public interest is allowed to outweigh the interest of the individual so that, though the appellants’ challenge of the respondents’ actings can only be satisfactorily disposed of after it is known what the respondents in fact did, yet the documents necessary to that end are protected from disclosure upon the plea of public interest.

Citations:

[1955] UKHL 7, 1956 SLT 41, [1956] JPL 442, 1956 SC (HL) 1

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Administrative

Updated: 28 July 2022; Ref: scu.279715

Moohan v City of Glasgow Council: OHCS 11 Mar 2003

The pursuer sought damages after an accident involving a stretching or twisting movement, which gave rise to no psychological consequences and in which the symptoms resolved in a relatively shortly time. It was accepted that any symptoms experienced by the pursuer after a date some twenty eight months after the accident did not relate to the accident.

Judges:

Lord Brodie

Citations:

[2003] ScotCS 58, 2003 SLT 745

Links:

Bailii, Bailii, ScotC

Jurisdiction:

Scotland

Cited by:

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

Personal Injury, Damages

Updated: 28 July 2022; Ref: scu.183994

Lord Gray’s Motion: HL 12 Nov 1999

(Committee for Privileges) The proposed House of Lords Bill which would have the effect of removing the right of Scottish hereditary Lords to sit in the House of Lords was not a breach of the Treaty of Union between England and Scotland. Such Lords were present to represent the nations as a whole, and not just Scotland. The rights of such peers now were derived entirely from the Peerage Act.

Judges:

Lord Slynn of Hadley

Citations:

Times 12-Nov-1999, Times 12-Nov-1999, [1999] UKHL 53, 2000 SC (HL) 46, [2000] 2 WLR 664, [2002] 1 AC 124, 2000 SLT 1337

Links:

Bailii

Statutes:

Treaty of Union of the two Kingdoms of Scotland and England 1707, Peerage Act 1963, Fixed-term Parliaments Act 2011, European Union (Withdrawal) Act 2018, European Union (Notification of Withdrawal) Act 2017

Jurisdiction:

Scotland

Cited by:

Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 28 July 2022; Ref: scu.83208

Robbie the Pict v The Procurator Fiscal, Dumfries: HCJ 15 May 2009

The defendant appealed against his conviction for speeding. He said that the speed gun used was not a device of a type approved by the Secretary of State since the regulationas allowed approval of speed measuring mechanisms activated by light, whereas this manual speed gun was actived by the police officer pulling its ‘trigger’.
Held: The argument failed. ‘Whilst it may be said that the process of capture of the vehicle speed is initiated by the operator of the device pulling the trigger, it is obvious that the reading itself is initiated and completely dependant upon the light beams emitted from and received by the device and we have no hesitation in finding that it is a device which is ‘a device designed or adapted for recording a measurement of the speed of motor vehicles by means of a light beam or beams’.’

Judges:

Lord Carloway, Lord Emslie and Lord Abernethy

Citations:

[2009] ScotHC HCJAC – 49

Links:

Bailii

Citing:

See Also – Robbie the Pict v Director of Public Prosecutions Admn 26-Apr-2009
The defendant, a road traffic camera campaigner appealed against his conviction for contravening a red light traffic signal, saying that the camera was not approved.
Held: The appeal failed. A ‘prescribed device’ was a ‘device of a description . .

Cited by:

Applied – Brotherston and Others v The Director of Public Prosecutions Admn 3-Feb-2012
Four drivers said that the use of approved speed cameras for evidential purposes was unlawful. They argued that the cameras used were not ‘of a description specified’ under an Order.
Held: The appeals failed. The different speed trap . .
Lists of cited by and citing cases may be incomplete.

Scotland, Road Traffic

Updated: 26 July 2022; Ref: scu.346257

Bemner v Westwater: HCJ 1993

A police officer was driving in the opposite direction to the accused. He came round a bend in the road to face two vehicles, one was driven by the accused overtaking the other vehicle. He was in the police officer’s path. The officer braked, skidded and mounted the nearside verge, thus avoiding a head on collision. The sheriff had held that an accident had occurred owing to the presence of the accused’s vehicle on the road and that the requirements of s2(1) of the 1988 Act had been met.
Held: The appeal failed. The Lord Justice General said that the word ‘accident’ was to be given a commonsense meaning. It was not restricted to untoward or unintended consequences having an adverse physical effect.

Judges:

Lord Hope

Citations:

(1993) 1994 SLT 707

Statutes:

Road Traffic Act 1988 2(1)

Jurisdiction:

Scotland

Cited by:

Cited – Currie, Regina v CACD 26-Apr-2007
The defendant appealed his conviction for dangerous driving. The failure of the police to serve him with a notice of intended prosecution invalidated the conviction. The police replied that there was no need for such a notice because there had been . .
Lists of cited by and citing cases may be incomplete.

Scotland, Road Traffic

Updated: 26 July 2022; Ref: scu.251525

SH v KH: SCS 13 Oct 2005

Opinion ‘In this reclaiming motion, the pursuer and reclaimer seeks recall of an interlocutor dated 18 March 2003 by which the Lord Ordinary dismissed her action for declarator that a pretended marriage between the parties at Stirling Registry office on 22 June 1998 was null by reason of lack of consent by the parties to the marriage.’

Judges:

Lord Macfadyen And Lord Marnoch And Lord Penrose

Citations:

[2005] CSIH 70, [2005] ScotCS CSIH – 70

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 26 July 2022; Ref: scu.231077

Dorchester Studios (Glasgow) Ltd v Stone: HL 1975

The House was asked whether an irritancy clause was unreasonable.

Citations:

1975 SC (HL) 56

Jurisdiction:

Scotland

Cited by:

Applied – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .
Cited – Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd (Scotland) HL 16-Jul-1998
(Scotland) The appellants sought compensation under the law of unjustified enrichment for losses sustained as a result of the exercise against them of a conventional irritancy.
Held: Where a landlord recovered possession of land under lease by . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 26 July 2022; Ref: scu.234725

Henderson v City of Glasgow District Council: 1994

Citations:

[1994] SLT 263

Jurisdiction:

England and Wales

Cited by:

Cited – Highland Council (Formerly Ross and Cromarty District Council) v Patience and Others (Scotland) HL 14-Nov-1996
Local Authority tenants sought to exercise their statutory right to purchase their council house. The third defendant had registered against the title a right of pre-emption protecting a feu charter registered in the Registry of Sasines.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 26 July 2022; Ref: scu.182309

Farstad Supply AS v Enviroco Ltd and Another: SCS 1 May 2009

Citations:

[2009] ScotCS CSIH – 35

Links:

Bailii

Statutes:

Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 3(2)

Citing:

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

Cited by:

See also – Enviroco Ltd v Farstad Supply A/S ChD 22-May-2009
. .
See Also – Enviroco Ltd v Farstad Supply A/S CA 18-Dec-2009
A company which would otherwise undoubtedly be the subsidiary of another company ceased to be so when the shares in the former company were charged by the latter company to a Scottish bank. . .
Appeal from – Farstad Supply As v Enviroco Ltd SC 5-May-2010
The defendants (E) were liable to F after a serious offshore accident, but sought a contribution from a third party (A), the main charterers, seeking to rely on section 3(2) o the 1940 Act saying that ‘if sued they might have been liable’. The court . .
Lists of cited by and citing cases may be incomplete.

Scotland, Negligence

Updated: 24 July 2022; Ref: scu.341811

Grampian Health Board v Hewage: EAT 4 Feb 2009

EAT SEX DISCRIMINATION: Burden of proof
RACE DISCRIMINATION: Inferring discrimination
Tribunal found Claimant to have suffered both sex and race discrimination in course of her employment as a consultant orthodontist. On appeal, Tribunal found to have failed to carry out a like for like comparison with chosen comparators and to have, wrongly, only considered Appellants’ submissions anent inappropriateness of comparators at the second stage of the ‘Igen’ test. There was no material on which the Tribunal could properly have inferred that there was a like for like comparison being relied on by the Claimant and so no basis for inferring discrimination. Appeal upheld and claims of discrimination dismissed.

Judges:

Lady Smith

Citations:

[2009] UKEAT 0016 – 08 – 0402

Links:

Bailii

Statutes:

Sex Discrimination Act 1975, Race Relations Act 1976 54A

Jurisdiction:

England and Wales

Citing:

Cited – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .

Cited by:

Appeal from – Hewage v Grampian Health Board SCS 14-Jan-2011
The claimant had succeeded in her claim for constructive unfair dismissal, and of sex and race discrimation at the tribunal. The EAT reversed the discrimination findings saying that the claimant had not set them out in her ET1, and the Tribunal had . .
At EAT – Hewage v Grampian Health Board SC 25-Jul-2012
The claimant had been employed as a consultant orthodontist. She resigned claiming constructive dismissal and sex and race discrimination. The EAT reversed the findings on discrimination saying that they had not been sufficiently pleaded. The Court . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Scotland

Updated: 24 July 2022; Ref: scu.341208

Colonel Francis Charteris, of Ampsfield v The Right Honourable James Earl of Hyndford: HL 23 Mar 1724

Usury – South Sea Company – During the rapid rising of South Sea stock, an agreement was entered into, on a Sunday, to sell a certain quantity of stock, at 90 per cent. above the price of the preceding day, the price not to be payable till a year after transfer of the stock; and an heritable bond was afterwards granted in consequence of the transfer, for payment of the agreed price on a day certain: this bond being reduced on the head of usury, the judgment is reversed.
Witness – In a reduction on the head of usury, a menial servant of the defender who was a subscribing witness to an agreement, being refused to be examined, the judgment is reversed.
The grantee in a bond having proposed to examine a cautioner therein as a witness, with regard to the transaction for which the bond was granted, consenting that what he deponed to should not be of prejudice to him, the Court refused to admit him, but the judgment is reversed.
Appeal – Interlocutors reversed, and an agreement adjudged of consent.

Citations:

[1724] UKHL Robertson – 471, (1724) Robertson 471

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 24 July 2022; Ref: scu.553900

Charlotta, Marchioness Dowager of Annandale v James, Marquis of Annandale, John Baillie, Francis Holliday; and Many Others, Claiming To Be Creditors of William, Late Marquis of Annandale, Deceased: HL 21 Mar 1724

Forum competens – Jurisdiction – The Marchioness of Annandale, residing in England, being appointed executrix for behoof of her children, proves the late Marquis’s will in England; various personal creditors of the late Marquis, arrest in the tenants’ hands, a jointure payable to the executrix out of the Scots estates: the Court of Session having ordered her to purge the arrestments, before she drew her jointure: the judgment is reversed, and it is ordered that the arrestments be loosed without caution or consignation.

Citations:

[1724] UKHL Robertson – 467, (1724) Robertson 467

Links:

Bailii

Jurisdiction:

England and Wales

Scotland, Jurisdiction

Updated: 24 July 2022; Ref: scu.553899

HM Secretary of State for Business Enterprise and Regulatory Reform, Re Order To Wind Up UK Bankruptcy Ltd: SCS 31 Mar 2009

Outer House – Court of Session –

Judges:

Lord Hodge

Citations:

[2009] ScotCS CSOH – 50

Links:

Bailii

Statutes:

Insolvency Act 1986

Citing:

Cited – Equity and Law Life Assurance Society v Tritonia Ltd HL 1943
Viscount Simon LC said: ‘When an appeal is argued before the House of Lords, no one has any right of audience except counsel instructed on behalf of a party or (when the litigant is a natural person) the party himself. In the case of a corporation, . .
Cited – Re Union Accident Insurance Co Ltd ChD 1972
A provisional liquidator cannot be appointed on a baseless petition. There are two conditions to be met. The first was that the petition must disclose a prima facie case, the second was that there were circumstances that require that a provisional . .

Cited by:

See Also – HM Secretary of State for Business Enterprise and Regulatory Reform, Re An Order To Wind Up UK Bankruptcy Ltd SCS 21-Sep-2010
. .
Lists of cited by and citing cases may be incomplete.

Scotland, Insolvency

Updated: 23 July 2022; Ref: scu.328006

Hamilton v Dumfries and Galloway Council: SCS 24 Feb 2009

The petitioner sought a declarator that an area of land on the edge of the village of Collin was not a ‘road’ capable of being added by the respondents, Dumfries and Galloway Council, to their list of public roads under section 16 of the 1984 Act. The court was asked as to the nature of a public right of passage, and as to the manner in which such a right may be constituted and extinguished.

Judges:

Lord Reed, Lord Mackay of Drumadoon, Lord Marnoch

Citations:

[2009] ScotCS CSIH – 13

Links:

Bailii

Statutes:

Roads (Scotland) Act 1984 16

Citing:

Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 23 July 2022; Ref: scu.304559

KR v Stirling Council: SCS 24 May 2016

The Court discussed the tests in section 83 for the granting of authority for adoption. They include a requirement that the court must be satisfied that the child has been, or is likely to be, placed for adoption.
Lord Drummond Young stated: ‘Thus section 84 imposes two critical conditions if a permanence order is to be made in a case where the natural parent does not consent. First, in terms of subsection (3), the court must consider that it would be better for the child that the order should be made than that it should not be made; that decision must be made in the light of the requirement of subsection (4) that the welfare of the child throughout childhood is to be the paramount consideration. Secondly, in terms of subsection (5)(c)(ii), the court must be satisfied that the child’s residence with the parent is, or is likely to be, seriously detrimental to his or her welfare. Of the two conditions, that in subsection (5)(c)(ii) is the more fundamental: it imposes a threshold test, in the sense that, if it is not satisfied, the court is not permitted to dispense with the parent’s consent. It is only if the test is satisfied that the court requires to go on to consider the welfare of the child … The critical point is that the requirements of subsection (5) set a threshold test, and unless that test is satisfied no permanence order can be made and any further consideration of the other provisions of section 84 is irrelevant.’
Lord Drummond Young added: ‘The threshold test is in our opinion a matter of fundamental importance, and we must express regret at the manner in which section 84 of the Adoption and Children (Scotland) Act 2007 is structured. In that section the fundamental threshold provision comes at the end, after the subsections dealing with the welfare of the child. It would clearly be more sensible to state the threshold test at an earlier point, before the welfare provisions, because the threshold test must be satisfied before any of the other provisions becomes relevant. As matters stand there is an obvious risk that the sheriff will fail to appreciate the fundamental importance of the criterion in subsection (5). That is what appears to have happened in the present case.’

Judges:

Lod Drummond Young

Citations:

[2016] ScotCS CSIH – 36, 2016 GWD 17-313, 2016 SCLR 557, 2016 SLT 689, 2016 Fam LR 108

Links:

Bailii

Statutes:

Adoption and Children (Scotland) Act 2007 80 83

Jurisdiction:

Scotland

Cited by:

Cited – Re EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .
Lists of cited by and citing cases may be incomplete.

Adoption

Updated: 23 July 2022; Ref: scu.565688

West Lothian Council v MB and KV: SCS 20 Jul 2016

(Second Division, Inner House) The primary source of the local authority’s concerns in relation to the child arose from what the Lord Ordinary described as ‘perceived concerns about the behaviour of [the father]’. The first concern, of particular importance to the local authority, related to ‘criminal charges of alleged sexual conduct . . brought in England in 2010’. The Lord Ordinary did not explain what those charges were. Whatever they may have been, they were dropped within a short period of being made, because the complainant had given inconsistent and contradictory accounts. The police did not pass the case to the Crown Prosecution Service. It appears that the complainant was a vulnerable female person who suffered from learning difficulties. According to the father’s affidavit, she was a friend of his who had wanted to have a sexual relationship with him. He had not been interested. She then made allegations to the police that he had raped her. This court has been informed that they were both aged about 19 at the time. The Lord Ordinary narrates that he heard evidence from a police officer that the father had given a statement in which he accepted that he had had consensual sex with the complainant. The father also gave evidence before the Lord Ordinary. He accepted that he had said what was recorded in the statement, but denied that it was true.
Having narrated this evidence, and expressed reservations about the evidence given by the father in relation to this matter, the Lord Ordinary stated: ‘In these circumstances it appears to me to be established on the balance of probabilities that the concerns harboured by the petitioners in relation to the [father’s]’s sexual proclivities were justified. In arriving at that conclusion I should make it clear that I am making no finding in relation to whether or not the sexual allegations made in 2010 were true or not. The relevancy or otherwise of these allegations is not a matter for me, nor have I heard any evidence in relation to the relevancy of these matters. My finding is confined to concluding that, notwithstanding the lack of any criminal conviction, there was material available to the petitioners at the time of the child EV’s birth relative to the [father]’s behaviour towards vulnerable females which they could not ignore and were required to have consideration of when formulating a policy or plan towards the ongoing care of the child EV.’

Judges:

Lady Dorrian, Lord Justice Clerk

Citations:

[2016] ScotCS CSIH – 60, 2016 Fam LR 134, 2017 SCLR 304, 2016 GWD 25-463

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Appeal from – Re EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 23 July 2022; Ref: scu.568782

G Hamilton (Tullochgribban Mains) Ltd, Re Judicial Review: SCS 13 Jan 2009

The land was subject to an old mineral planning permission. A plan attached to that permission was now lost, and the permission itself was now classed as dormant. The land-owner feared that in resurrecting the permissions, the authority had misdescribed the exrent of the land within the permission.
Held: (Opinion) Lady Clark of Calton analysed the provisions of Schedule 9 to the 1997 Act. She said: ‘when a planning authority in accordance with paragraph 3 prepares a list of mineral sites within their area (the ‘first list’) what they are preparing is a list of ‘the land to which a relevant planning permission relates’. I consider that the intention of the legislation in relation to review of old mineral planning permissions in Schedule 9, is not to permit the planning authority to change the boundaries of land by reducing or increasing an area of land to which a relevant planning permission has been granted at an earlier date. The listing procedure envisages a listing of something which pre-exists ie the planning permission granted at an earlier date in respect of mineral sites.’

Judges:

Lady Clark of Calton

Citations:

[2009] ScotCS CSOH – 4

Links:

Bailii

Statutes:

Town and Country Planning (Scotland) Act 1997

Cited by:

See Also – G Hamilton (Tullochgribban Mains) Ltd v The Highland Council and Another SCS 7-Jan-2011
. .
Opinion – G Hamilton (Tullochgribban Mains) Ltd v The Highland Council and Another SC 11-Jul-2012
The appellant owned land. Another company owned the mineral rights in the land. There had been no working of the mineral rights since 1982, and the respondent council had registered the planning permission as dormant, meaning that if the land was to . .
Lists of cited by and citing cases may be incomplete.

Scotland, Planning

Updated: 22 July 2022; Ref: scu.280063

Neilson v Stewart: HL 21 Mar 1991

The parties disputed whether a completed agreement existed between them.
Held: Lord Jauncey of Tullichettle said: ‘The fact that in the usual case a particular term will be considered essential to the existence of a concluded agreement does not prevent parties from contracting in a peculiar case that it shall not be essential.’

Judges:

Lord Jauncey of Tullichettle

Citations:

[1991] UKHL 13, 1991 SC (HL) 22, 1991 SLT 523, [1991] BCC 713

Links:

Bailii

Cited by:

Cited – Avintair v Ryder Airline Services Ltd SCS 30-Dec-1993
The pursuers asserted a contract between themselves and the defenders for a consultancy, and that reasonable remuneration was due under it. The Lord Ordinary had found that no contract had been completed, the parties being, at all points, in dispute . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract, Company

Updated: 22 July 2022; Ref: scu.279763