Category: Scotland

Cameron-Head v Cameron and Co: SCS 10 Jul 1919

Action by the proprietrix of Inverailort against a firm of timber merchants carrying on business in Govan. The pursuer sold a certain amount of timber growing upon her estate to the defenders for a certain price. It was a condition of the contract that the timber should be removed by the defenders within a specified period of time. The defenders have not in fact removed the timber within that period of time. Under the contract it is provided that there shall be payable to the pursuer a penalty of ten shillings a day for every day’s delay beyond the specified period.

Citations:

[1919] ScotCS CSIH – 1

Links:

Bailii

Scotland, Contract

Updated: 21 July 2022; Ref: scu.279326

M’Caig v University of Glasgow: SCS 18 Dec 1906

The heir in heritage of the late Mr M’Caig of Oban seeks to establish her rights as such, notwithstanding the fact that he has made a testament in favour of trustees, and has directed them to hold his estate and to apply the proceeds in doing certain things on the estate. She does not impugn the deed on the ground of mental incapacity. She attacks it on the ground that it does not give any disposal of the estate for the benefit of any person or class of persons, and is in no better position to exclude her than if it had simply disinherited her without putting anyone in her place, which it is plain would not have invalidated her right as heir.

Judges:

Lord Stormonth-Darling

Citations:

[1906] ScotCS CSIH – 2, 1907 SC 231, (1906) 14 SLT 600

Links:

Bailii

Scotland, Wills and Probate

Updated: 21 July 2022; Ref: scu.279270

Mason v Orr: SCS 28 Nov 1901

Action directed against the Superintendent of the Central Division of the Glasgow Police for an alleged assault, and the question is whether a relevant case has been stated.

Judges:

Lord M’Laren

Citations:

[1901] ScotCS CSIH – 1, (1901) 4 F 220, (1901) 9 SLT 269, [1901] SLR 39 – 148

Links:

Bailii, Bailii

Jurisdiction:

Scotland

Torts – Other, Police

Updated: 21 July 2022; Ref: scu.279256

Belmont Laundry v Aberdeen Steam Laundry: SCS 4 Nov 1898

(Inner House) The pursuer sought recovery of its losses from two defenders jointly and severally as a result of an employee leaving without giving sufficient notice. The pursuer claimed the employee left as the result of the second defender, Abderdeen Steam Laundry Company, having induced him to break his employment agreement.
Held: Although the grounds pleaded against each of the two defenders were different, the action was competent in that both defenders were alleged to have contributed to the one wrong of which the pursuer had complained.
Lord Adam stated: ‘No doubt the ground of action against each defender is different — that against Innes being breach of contract, and that against the Aberdeen Steam Laundry Company the doing of a wrongous and illegal act — but they both contributed to produce the one wrong of which the pursuers complain, and therefore I think that they are conjunctly and severally liable in the consequences’.

Judges:

Lord Adam

Citations:

[1898] ScotCS CSIH – 2, (1898) 6 SLT 192, (1898) 1 F 45

Links:

Bailii

Scotland, Litigation Practice

Updated: 21 July 2022; Ref: scu.279248

Scottish Insurance Commissioners v Church of Scotland: SCS 18 Oct 1913

An assistant minister in the United Free Church said that he was an employee of the church.
Held: He was not. Lord Kinnear said that the status of an assistant minister ‘is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master.’

Judges:

Lord Kinnear

Citations:

[1913] ScotCS CSIH – 3, (1914) SC 16

Links:

Bailii

Cited by:

Cited – Methodist Conference v Preston SC 15-May-2013
Minister was not an employee
The claimant asserted unfair dismissal. The Conference said that as an ordained minister she was not an employee, and was outwith the jurisdiction of such a claim.
Held: The Conference’s appeal succeeded (Baroness Hale dissenting). The essence . .
Lists of cited by and citing cases may be incomplete.

Scotland, Employment, Ecclesiastical

Updated: 21 July 2022; Ref: scu.279310

Boyd and Forrest v GWSR Co: SCS 7 Mar 1914

The pursuers’ case is that they were led to enter into a contract with the defenders to execute certain works of construction of a railway for a lump sum, and that they were led to tender to do the work for a certain price, by the other party, the defenders, having, through their responsible officials, supplied them with information which was in essential particulars misleading information; and that thus they, the pursuers, were induced to enter into the contract by fraud, or otherwise that they were misinformed by an incorrect representation of facts, and were thus under essential error. They claim that the sum to which they were entitled for the work done is much larger than what they have received, and they sue for the excess. TThe pursuers’ case is that they were led to enter into a contract with the defenders to execute certain works of construction of a railway for a lump sum, and that they were led to tender to do the work for a certain price, by the other party, the defenders, having, through their responsible officials, supplied them with information which was in essential particulars misleading information; and that thus they, the pursuers, were induced to enter into the contract by fraud, or otherwise that they were misinformed by an incorrect representation of facts, and were thus under essential error. They claim that the sum to which they were entitled for the work done is much larger than what they have received, and they sue for the excess. T

Citations:

[1914] ScotCS CSIH – 2

Links:

Bailii

Citing:

At HL – Boyd and Forrest v GWSR Co HL 16-May-1912
The parties had contracted for the construction of an embankment to support a railway track. The pursuers now said that they had been induced to enter the contract by means of fraudulent misrepresentation as to the results of borings at the site. . .

Cited by:

Appeal from – Boyd and Forrest v Glasgow and South-Western Railway Co HL 11-Jan-1915
The issuing of an instruction was not a condition precedent to entitlement to payment in a construction contract. . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract, Torts – Other

Updated: 21 July 2022; Ref: scu.279312

Kelly (John Joseph) v Mackinnon: HCJ 11 May 1982

Judges:

Lord Justice-General Emslie

Citations:

[1982] ScotHC HCJAC – 2, 1982 SCCR 205, 1983 SLT 9, 1982 JC 94

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Bewley v Regina CACD 6-Jul-2012
The defendant appealed against his conviction for possession of a firearm. The crown had been able to make it discharge a pellet only by taking elaborate preparatory steps. ‘There being no dispute but that the starting pistol was a lethal-barrelled . .
Lists of cited by and citing cases may be incomplete.

Scotland, Crime

Updated: 21 July 2022; Ref: scu.279204

Manuel v HM Advocate: HCJ 25 Jun 1958

In order to be found to be voluntarily given, a suspect’s statement must have been freely given and not given in response to pressure or inducement and not elicited by questioning other than what is directed simply to elucidating what has been said. The crucial question then is whether this statement freely given? Or was it the result of some kind of pressure or inducement by the police?

Judges:

Lord Justice General Clyde

Citations:

[1958] ScotHC HCJ – 1, 1958 SLT (Notes) 44, 1958 JC 41, 1959 SLT 23

Links:

Bailii

Cited by:

Cited – Jude v Her Majesty’s Advocate SC 23-Nov-2011
The Lord Advocate appealed against three decisions as to the use to be made of interviews where the detainees had not been given access to lawyers. In each case the prosecutor now appealed after their convictions had been overturned in the light of . .
Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Evidence

Updated: 21 July 2022; Ref: scu.279185

Lawrie v Muir: HCJ 23 Nov 1949

The prosecution case was said to have been based on evidence acquired during an unlawful search of the defendant’s premises.
Held: An irregularity in the method by which evidence has been obtained does not necessarily make that evidence inadmissible in a criminal prosecution.
Lord Justice General Cooper explained the basis for the approach: ‘From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict – (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost.’

Judges:

Lord Justice General Cooper

Citations:

[1949] ScotHC HCJAC – 2, 1950 JC 19, 1950 SLT 37

Links:

Bailii

Citing:

Approved – HM Advocate v McGuigan HCJ 1936
An irregularity in the obtaining of evidence does not necessarily make that evidence inadmissible. . .

Cited by:

Cited – Her 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 . .
Cited – Kinloch v Her Majesty’s Advocate SC 19-Dec-2012
The appellant said that the police officers had acted unlawfully when collecting the evidence used against him, in that the information used to support the request for permission to undertake clandestine surveillance had been insufficiently . .
Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Evidence

Updated: 21 July 2022; Ref: scu.279178

Moore v The Scottish Daily Record and Sunday Mail Ltd: SCS 9 Dec 2008

Citations:

[2008] ScotCS CSIH – 66

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Moore v Scottish Daily Record and Sunday Mail Ltd SCS 7-Aug-2008
. .

Cited by:

Cited – Davies and Another (T/A All Stars Nursery) v The Scottish Commission for The Regulation of Care SC 27-Feb-2013
The appellants ran a day care nursery regulated under the 2001 Act. The Commission, being concerned at the care provided, sought to revoke the registration in proceedings before the Sherriff’s Court. Before they were concluded, the Commission was . .
Lists of cited by and citing cases may be incomplete.

Scotland, Defamation

Updated: 21 July 2022; Ref: scu.278869

Ferguson v Her Majesty’s Advocate: HCJ 25 Nov 2008

The defendant appealed his conviction for murder, saying that the judge had not left to the jury an alternate possible verdict of culpabe homicide. The vidtim had been stabbed. The defendant said that he had not intended to kill the victim.

Judges:

Lord Osborne, Lady Paton, Lord Mackay of Drumadoon

Citations:

[2008] ScotHC HCJAC – 71

Links:

Bailii

Scotland, Crime

Updated: 21 July 2022; Ref: scu.278265

A, Re Permission To Appeal Under Section 103(B) of the Nationality, Immigration and Asylum Act 2002: SCS 18 Nov 2008

Application for permission to appeal against a determination of the Asylum and Immigration Tribunal

Judges:

Lord Kingarth, Lord Carloway, Lord Marnoch

Citations:

[2008] ScotCS CSIH – 59, [2008] CSIH 59

Links:

Bailii

Statutes:

Nationality, Immigration & Asylum Act 2002 103(B)

Cited by:

Leave – A v The Secretary of State for The Home Department SCS 17-May-2013
The reclaimer seeks recall of an interlocutor of Lord Boyd of Duncansby dated 7 November 2012 by which he allowed an amendment of the petition to anonymise the petitioner (the anonymity order) and gave directions in terms of section 11 of the . .
Leave to appeal to Court of Session – 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 . .
Lists of cited by and citing cases may be incomplete.

Scotland, Immigration

Updated: 19 July 2022; Ref: scu.277904

Logan and Another v Procurator Fiscal: HCJ 2 Jul 2008

The appellant challenged sentences for driving whilst disqualified. The defendant questioned the extent of the legislative competence of the Scottish Parliament under judicial scrutiny on grounds other than compliance with Convention rights.

Judges:

Lord Nimmo Smith

Citations:

[2008] ScotHC HCJAC – 61, 2009 SCL 83, 2008 SCCR 815, 2008 GWD 35-535, [2008] HCJAC 61, 2008 SLT 1049

Links:

Bailii

Statutes:

Road Traffic Act 1988 103(1)(b)

Cited by:

Cited – Martin v Her Majesty’s Advocate SC 3-Mar-2010
The claimant challenged the law extending the power of Sheriffs sitting alone to impose sentences of up to one year.
Held: The defendants’ appeal failed (Lord Rodger and Lord Kerr dissenting). The change was within the power of the Scottish . .
Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Sentencing, Constitutional

Updated: 19 July 2022; Ref: scu.277640

Riach v Lord Advocate: SCS 1931

The court considered the issue of a reward to a revenue informer: ‘the value of the result of the information . . may prove to be nothing for reasons of which the informer may be totally unaware, eg, that the Inland Revenue authorities may already be in possession of much of the information which the informer believes to be confined to himself.’

Judges:

Lord President Clyde, Lord Blackburn

Citations:

(1931) 18 TC 18

Statutes:

Inland Revenue Regulation Act 1890 34

Jurisdiction:

Scotland

Cited by:

Cited – Churchhouse, Regina (on the Application of) v Inland Revenue Admn 4-Apr-2003
The taxpayer was a revenue informer one whose trade is described by Coke as ‘viperous vermin [who] under the reverend mantle of law and justice instituted for protection of the innocent, and the good of the Commonwealth, did vexe and depauperize the . .
Lists of cited by and citing cases may be incomplete.

Taxes Management

Updated: 19 July 2022; Ref: scu.194954

Montgomery and Coulter v Her Majesty’s Advocate: PC 19 Oct 2000

The test of whether a defendant’s common law right to a fair trial had been damaged by pre-trial publicity was similar to the test under the Convention, and also where there was any plea of oppression. The substantial difference is that no balancing exercise was to be carried out under the Convention test. The right to a fair trial is absolute, and unqualified. It was not to be subordinated to the public interest in the detection and suppression of crime. The Court need not look only at the effect on the jurors, but could also allow for the part which the judge would play. A question of Scottish criminal law and procedure falls within the exclusive jurisdiction of the High Court of Justiciary. Lord Hoffmann said: ‘events before the trial may create the conditions for an unfair determination of the charge. For example, an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of Article 6(1) lies not in the use of torture (which is, separately, a breach of Article 3) but in the reception of the evidence by the court for the purposes of determining the charge. If the evidence had been rejected, there would still have been a breach of Article 3 but no breach of Article 6(1).’

Judges:

Lord Hoffmann

Citations:

Times 06-Dec-2000, DRA Nos 1 and 2 of 2000, [2003] 1 AC 641, 2001 SLT 37, [2000] UKHL D1, 2002 SC (PC) 89, 2000 GWD 40-1487, 9 BHRC 641, [2001] UKHRR 124, [2001] 2 WLR 779, 2000 SCCR 1044

Links:

PC, Bailii

Statutes:

European Convention on Human Rights 6(1)

Jurisdiction:

Scotland

Citing:

Appeal from – Her Majesty’s Advocate v Montgomery and Coulter HCJ 14-Sep-1999
. .

Cited by:

Cited – Regina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
Cited – Regina on the Application of Mahfouz v The Professional Conduct Committee of the General Medical Council CA 5-Mar-2004
The doctor requested members of the disciplinary tribunal to recuse themselves when, after the first day of the hearing they saw prejudicial material in newspapers which material was not in evidence. They had further declined to allow an adjournment . .
Cited – Gary Follen v Her Majesty’s Advocate PC 8-Mar-2001
PC High Court of Justiciary (Scotland) The defendant said that a trial under the section infringed his right to a fair trial, because of a ten month delay by the prosecutor. On arrest he had been recalled to . .
Cited – Ramda, Regina (on the Application of) v Secretary of State for the Home Department Admn 27-Jun-2002
The Government of France sought the extradition of Ramda wanted by them for trial in connection with a series of terrorist bombings in France. The applicant resisted extradition to France on the ground that the evidence which would be relied on . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Regina v Abu Hamza CACD 28-Nov-2006
The defendant had faced trial on terrorist charges. He claimed that delay and the very substantial adverse publicity had made his fair trial impossible, and that it was not an offence for a foreign national to solicit murders to be carried out . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Cited – McInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
Cited – HM Attorney General v MGN Ltd and Another Admn 29-Jul-2011
The police arrested a man on suspicion of the murder of a young woman. He was later released and exonerated, and a second man arrested and later convicted. Whilst the first was in custody the two defendant newspapers, the Daily Mirror and the Sun . .
Cited – McGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Cited – HM Attorney General v Yaxley-Lennon QBD 9-Jul-2019
Application by Her Majesty’s Attorney General for an order committing the respondent to prison for contempt of court. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights, Media, Contempt of Court

Updated: 19 July 2022; Ref: scu.163266

William Morrison of Preston Grange, Esq v John Viscount Arbuthnot: HL 27 Mar 1728

Minor – pactum illicitum – A discharge by a minor without curators of part of the tocher stipulated in his contract of marriage, being granted privately before solemnization of the marriage, and without the concurrence of the friends who were assisting him in the marriage treaty, reduced at the instance of the granter, on the head of minority and lesion, and as being contra fidem tabularum nuptialium.

Citations:

[1728] UKHL 1 – Paton – 7, (1728) 1 Paton 7

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Children

Updated: 19 July 2022; Ref: scu.554247

Mitchell v Gibson: ScSf 2011

Sheriff Principal R A Dunlop QC considered the need to show ‘disadvantage’ under the Act and concluded that, provided that disadvantage has been suffered in the interests of the defender to some extent, the door is open to an award of a capital sum even though it may also have been suffered in the interests of the applicant.

Judges:

Sheriff Principal R A Dunlop QC

Citations:

2011 Fam LR 53

Jurisdiction:

Scotland

Cited by:

Cited – Gow v Grant SC 24-May-2012
The parties had lived together as an unmarried couple, but separated. Mrs Gow applied under the 2006 Act for provision. Mr Grant’s appeal succeeded at the Inner House, and Mrs Gow now herself appealed.
Held: The appeal succeeded. The Act did . .
Lists of cited by and citing cases may be incomplete.

Scotland, Family

Updated: 19 July 2022; Ref: scu.463495

RM v The Scottish Ministers: SCS 27 Aug 2008

The petitioner, a detained mental patient challenged the validity of orders made by the Mental Health Tribunal established under the 2003 Act. He said that, the respondents having not passed regulations providing complete processes for the tribunals, those tribunals could not provide a fair process for him. In particular there was no appeal mechanism.
Held: Petition for judicial review was refused. The court accepted that a duty to make Regulations, and to do so within a particular period, could be imposed by implication. If legislation vested a person or class of persons with a right which could only be exercised if regulations governing that exercise were in force, it would be assumed that Parliament intended that the person delegated with the relevant power should make regulations so as to activate the right in practice. However section 268 did not confer any rights on any person or class of persons but permitted the identification of such persons by regulation. It was only once such regulations were made that any right could arise. Section 268 was to be contrasted with section 264, under which no further legislative action was required for the provisions to have effect once the chapter came into force

Judges:

Lord Carloway

Citations:

[2008] ScotCS CSOH – 123

Links:

Bailii

Statutes:

Mental Health (Care and Treatment) (Scotland) Act 2003 268

Cited by:

At Outer House – RM, Re Judicial Review SCS 21-Mar-2012
The applicant was detained in a mental hospital. After losing a challenge to being moved to a higher security section he found that he was unable to appeal because the Scottish Parliament had not passed Regulations proving the structure for an . .
Outer House – RM v The Scottish Ministers SC 28-Nov-2012
The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Constitutional

Updated: 19 July 2022; Ref: scu.272864

Brennan v HM Advocate: HCJ 12 May 1977

The defendant appealed against his conviction for murder after his special defence of insanity was rejected. The trial judge, in charging the jury withdrew the special defence from their consideration and directed them that the evidence of the appellant’s state of intoxication did not entitle them to return a verdict of culpable homicide. In the result the outcome of the trial was conviction of the appellant of murder.

Judges:

Emslie LJG

Citations:

1977 SLT 151, [1977] ScotHC HCJ – 1, 1977 JC 38,

Links:

Bailii

Cited by:

Cited – Cardle 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: 19 July 2022; Ref: scu.272898

Hughes v Robertson: 1930

The widow sought damages for an unauthorised autopsy carried out upon the body of her late husband.

Citations:

[1930] SC 394

Jurisdiction:

Scotland

Cited by:

Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 July 2022; Ref: scu.195014

Z, Re Judicial Review: SCS 27 Nov 2012

The petitioner said that in reaching her decision for the return of the petitioner with his wife and children to the Republic of Congo, she had not properly given priority to the interests of the children, and had wrongly refused to treat the petitioner’s submissions as a new claim.
Held: The appeal failed: ‘. A fair interpretation of what the respondent said at page 7 of her letter was that, in assessing overall the best interests of the children, she took into account that it would be in their best interests to be with their parents; that their Nationality was Congolese and that it would be in their best interests to be brought up within that culture; that educational facilities were an important factor in the assessment of best interests, and that the facilities in the UK would be better than those in the Congo, but that, in the absence of reliance on particular factors, the fact that the children would be returned along with their parents meant that the effect of the difference in educational opportunities between the UK and the Congo would not be particularly detrimental to them. ‘

Judges:

Lady Paton, Lady Dorrian, Lord McGhie

Citations:

[2012] ScotCS CSIH – 87, [2012] CSIH 87

Links:

Bailii

Statutes:

Euriopean Convention on Human Rights 8

Jurisdiction:

Scotland

Cited by:

Appeal from – Zoumbas v Secretary of State for The Home Department SC 27-Nov-2013
The appellant challenged a decision that he did not qualify for asylum or humanitarian protection and that his further representations were not a fresh human rights claim under paragraph 353 of the Immigration Rules. He argued that the return to the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 18 July 2022; Ref: scu.466332

E Sutherland-Loveday and Scottish Borders Council: SIC 22 Mar 2006

SIC Request for disclosure of a report of a property inspection carried out on behalf of Berwickshire Housing Association.
Request for a report that had been produced by Scottish Borders Council on behalf of Berwickshire Housing Association following the inspection of a property owned by the applicant – section 34 investigations by Scottish public authorities and proceedings arising out of such investigations – section 35 law enforcement.

Citations:

[2006] ScotIC 047 – 2006

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 18 July 2022; Ref: scu.434535

Clark and Whitehouse (Joint Administrators of Rangers Football Club Plc), Re Directions: SCS 23 Mar 2012

(Outer House) Contracts were made in 2011 and subject to English law, between Rangers and two English limited liability partnerships (together ‘Ticketus’). Under the contracts, Ticketus had paid Rangers large sums for future tranches of season tickets in respect of a defined number of seats of different types at specified future matches in each of the seasons from 2011-2012 to 2014-2015. Rangers having gone into administration, its administrators applied for directions as to whether they could be prevented from terminating the contracts. Ticketus argued that they had acquired rights which were more than mere personal rights, and which could be enforced by specific performance.
Held: Lord Hodge held, first, relying on the travaux preparatoires (in particular paras 55 to 57 of the Explanatory Report prepared by Professor Alfred E von Overbeck), that the concept in article 4 of the Convention of a preliminary issue relating to the validity of an act by which assets were transferred to a trustee included an issue relating to the validity of a declaration of trust.
Whether the agreements between Rangers and Ticketus in respect of season tickets gave Ticketus more than purely personal rights was such an issue, and, third, that this issue fell accordingly outside the Convention and was to be determined under Scots private international law rules by reference to Scots law, as the lex situs of the future tickets to be issued and the stadium seats to which they related.
Lord Hodge said: ‘If I am correct in my conclusion that Scots law applies, the difficulty which Ticketus faces in asserting a trust over the proceeds of sale of the season tickets agreement tickets is that the proceeds do not yet exist. On the assumption that the Ticketus agreements are sufficient to amount to a declaration by Rangers of a trust over the STA tickets and the proceeds of their sale, the non-existence of both is fatal to the creation of a trust. Where the truster and trustee are the same person it is our law that there must be constructive delivery of the trust subjects to himself as trustee of an irrevocable trust: see Allan’s Trustees v Lord Advocate 1971 SC (HL) 45, in which Lord Reid at p 64 spoke of the doing of ‘something equivalent to delivery or transfer of the trust fund.”

Judges:

Lord Hodge

Citations:

[2012] ScotCS CSOH – 55, 2012 GWD 13-261, 2012 SLT 599

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 July 2022; Ref: scu.452645

Buchanan v Tilcon Engineerng Ltd: SCS 1983

The Lord President of the Court of Session said: ‘ In the event the appellant, apart from throwing out the suggestion that he might have been victimised because of dislike, merely expressed his concern that others, with even less seniority than he and employed in the same work (labouring) had been kept on. In this situation where no other complaints were made by the appellant all that the respondents had to do was to prove that their method of selection was fair in general terms and that it had been applied reasonably in the case of the appellant by the senior official responsible for taking the decision. As was pointed out by Phillips J in Cox v Wildt Mellor Bromley Ltd [1978] IRLR 157 it is quite sufficient for an employer in a case such as this to call witnesses of reasonable seniority to explain the circumstances in which the dismissal of an employee came about and it was not necessary to dot every ‘i’ and to cross every ‘t’ or to anticipate every possible complaint which might be made.”

Judges:

Lord Emslie

Citations:

[1983] IRLR 417

Jurisdiction:

Scotland

Cited by:

Cited – British Aerospace plc v Green and Others CA 18-Apr-1995
The employer was to make 530 members of its staff redundant. Each staff member was assessed and scored. The claimants said that the method of selection was unfair, and sought disclosure of the scores of all employees.
Held: It was wrong to . .
Cited – British Aerospace plc v Green and Others CA 18-Apr-1995
The employer was to make 530 members of its staff redundant. Each staff member was assessed and scored. The claimants said that the method of selection was unfair, and sought disclosure of the scores of all employees.
Held: It was wrong to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 July 2022; Ref: scu.396775

Inveresk Plc v Tullis Russell Papermakers Ltd: SC 5 May 2010

The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that TR had caused additional losses by failing to maintain product standards.
Held: I’s appeal succeeded. The additional compensation would not become due until audited. A right of retention might also exist pending settlement of a counterclaim. The case was remitted for reconsideration.

Judges:

Lord Hope, Deputy President, Lord Saville, Lord Rodger, Lord Collins, Lord Clarke

Citations:

[2010] UKSC 19, 2010 SCLR 396, 2010 GWD 23-437, 2010 SLT 941

Links:

SC, SC Summ, Bailii, Bailii Summary

Jurisdiction:

Scotland

Citing:

See Also – Inveresk 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, . .
At Outer House – Inveresk Plc v Tullis Russell Papermakers Ltd SCS 29-Aug-2008
Action for sums due under commercial contract. . .
Appeal from – Inveresk Plc v Tullis Russell Papermakers Ltd SCS 30-Jun-2009
. .
Cited – Garscadden v Ardrossan Dry Dock Co 1910
The court ordered the lifting of a lien subject to consignation. The right of retention is not the assertion of an absolute right. . .
Cited – Earl of Galloway v McConnell 1911
. .
Cited – British Motor Body Co Ltd v Thomas Shaw (Dundee) Ltd 1914
. .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – John Haig and Co v Boswell-Preston 1915
A tenant may be able to retain rent where the landlord was in material breach of his duty under the lease to maintain fixed equipment. . .
Cited – Manheath Ltd v H J Banks and Co Ltd (Scotland) OHCS 2-Jun-1995
If contract is subject to a suspensive condition, performance is not waivable. . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Claddagh Steamship Co Ltd v Steven and Co HL 1919
There were two contracts for the sale of ships. The question was whether, when one ship was requisitioned by the Government, the purchasers were obliged to accept and pay for the other. Their case was that they were not obliged to do so, as the . .
Cited – Hoult and Another v Turpie ScS 29-Apr-2003
Lord Drummond Young said that the principle of mutuality has generally been given a wide scope in Scots law. It is derived from the exceptio non adimpleti contractus. The requirement that the obligations should be counterparts of each other should . .
Cited – Purak Ltd v Byzak Ltd 2005
Lord Drummond Young said that the right or retention only arises where one party is in material breach of contract. . .
Cited – Bank of East Asia Ltd v Scottish Enterprise and Another (Scots) HL 24-Jan-1996
A right of retention against unfulfilled obligations does not apply if those conditions came to be fulfilled. Where both sides are to perform a contract in stages, ‘the counter obligation and consideration for payment of stage one is the completion . .
Cited – Luigi Macari v Celtic Football and Athletic Co Ltd SCS 8-Jun-1999
One of the issues was whether Mr Macari had been entitled to refuse to carry out the instructions of the managing director because the club were in breach of another obligation to him under the contract between the parties.
Held: In the . .
Cited – Hoult and Another v Turpie ScS 29-Apr-2003
Lord Drummond Young said that the principle of mutuality has generally been given a wide scope in Scots law. It is derived from the exceptio non adimpleti contractus. The requirement that the obligations should be counterparts of each other should . .
Cited – Seton 1683
The defender was a widow, charged on a bond granted by her husband. She said that the pursuer had owed her husband freight under a charterparty. The pursuer argued that the debt was not liquid, because the defender would need to prove that her . .
Cited – Muir and Milliken v Kennedy 1697
A minor was sued as heir to his father, for a sum in a bond of caution granted by his father. The court allowed the defender time to show that the debt had already been paid. He then craved compensation for a sum allegedly owed to the estate on the . .
Cited – Bim Kemi v Blackburn Chemicals Ltd CA 3-Apr-2001
The question was the degree of connection which must be shown between (1) a claim for unliquidated damages for breach of a contract and (2) a cross-claim for unliquidated damages for breach of a different contract between the same parties, in order . .
Cited – Taylor v Forbes 1830
The pursuer sued for freight for carrying a cargo of flour for the defender from Perth to Aberdeen. The pursuer did not insert sufficient planks to line the hold and protect the cargo from contact with the bilge water. He claimed that it was not . .
Cited – Bank of Boston Connecticut v European Grain and Shipping Ltd (‘The Dominique’) HL 1989
A shipping company and a shipper responsible for the freight disputed the effect of their contract. The ship was duly loaded with its cargo and set out for the voyage from India to Europe. The bills of lading were signed. When the ship called at . .
Cited – Aries Tanker Corp v Total Transport Ltd; The Aries HL 1977
Claims for freight charges are an exception to the general rule that all claims between parties must be resolved in one action. A claim for freight cannot be a claim ‘on the same grounds’ as a counter-claim for loss or damage arising out of the . .
Cited – Aries Tanker Corp v Total Transport Ltd; The Aries HL 1977
Claims for freight charges are an exception to the general rule that all claims between parties must be resolved in one action. A claim for freight cannot be a claim ‘on the same grounds’ as a counter-claim for loss or damage arising out of the . .
Cited – Canada Enterprises Corp Ltd v MacNab Distilleries Ltd CA 1976
(Decided in 1976) ‘inexpedient’ in the rule, simply means unjust. Because there was not the requisite identity of parties, the strict requirements of set off were not fulfilled. . .
Cited – Lovie v Bairds Trustees 1895
. .
Cited – Graham v Gordon 1843
‘Rent is not liquid in the sense that a sum due by bond is. It is matter of contract in consideration of something to be done. It is paid for possession of the subject let. If the tenant says he has not got entire possession, that is a good answer . .
Cited – Johnston v Robertson 1861
The parties agreed for the pursuer to erect a poor-house, to be completed and the keys were to be delivered by a specified day, under a penalty of andpound;5 per week of delay in completing it.
Held: This was not a penalty but a provision for . .
Cited – Ross v Ross SCS 1895
The pursuer was the widow of Sir Charles Ross who died in 1883 and was succeeded by his pupil son. From then until 1893, when her son attained majority, the pursuer had acted as his sole tutor and curator. She was entitled to an annuity of . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 18 July 2022; Ref: scu.409979

Glasgow City Council v Zafar: SCS 1997

The house considered the burden of proof in cases involving allegations of discrimination.
Held: Lord Morison ‘The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the Act of 1976 is not one of less favourable treatment than that which would have been accorded by a reasonable employer in the same circumstances, but of less favourable treatment than that which had been or would have been accorded by the same employer in the same circumstances. It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances.’
The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light on the question whether he has treated the employee ‘less favourably’ for the purposes of the 1976 Act: ‘The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the Act of 1976 is not one of less favourable treatment than that which would have been accorded by a reasonable employer in the same circumstances, but of less favourable treatment than that which had been or would have been accorded by the same employer in the same circumstances. It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances.’

Judges:

The Lord Justice Clerk, Lords McCluskey and Morison

Citations:

[1997] SLT 281, [1997] 1 WLR 1659

Statutes:

Race Relations Act 1976

Jurisdiction:

Scotland

Citing:

Approved – King v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .

Cited by:

Cited – London Borough of Hammersmith and Fulham, G Alltimes v L Ezeonyim EAT 7-Jun-2000
EAT The claimant had succeeded in his claim for race discrimination. The employer appealed, saying the tribunal had misunderstood its harassment procedure so as to be wrong in law. The claimant complained of a . .
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Appeal from – Strathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 17 July 2022; Ref: scu.195023

Steel v Glasgow Iron and Steel Co Ltd: 1944

The question was whether the actions of the deceased had broken the chain of causation when he intervened in an attempt to save property. ‘This rule of the ‘reasonable and probable consequence’ is a key that opens several locks; for it not only fixes the nature and the measure of the duty to take care, but it may also aid in determining whether the causal nexus is complete and, perhaps, whether the damages claimed are too remote.’

Judges:

Lord Justice Clerk Cooper

Citations:

1944 SC 237

Jurisdiction:

Scotland

Citing:

Cited – Bourhill v Young’s Executor HL 5-Aug-1942
When considering claims for damages for shock, the court only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact.’ Wright L said: ‘No doubt, it has long ago been . .
Cited – Glasgow Corporation v Muir HL 16-Apr-1943
The House considered the proper test to define the standard of care that must be adopted by the reasonable man in a claim for negligence.
Held: Lord Clauson said that the test is whether the person owing the duty of care ‘had in contemplation . .

Cited by:

Cited – Simmons v British Steel plc HL 29-Apr-2004
The claimant was injured at work as a consequence of the defender’s negligence. His injuries became more severe, and he came to suffer a disabling depression.
Held: the Inner House had been wrong to characterise the Outer House decision as . .
Lists of cited by and citing cases may be incomplete.

Damages, Negligence

Updated: 17 July 2022; Ref: scu.196524

Stirland v Director of Public Prosecutions: HL 1944

The House considered what was the appropriate test for allowing a conviction to stand despite the finding of an irregularity in the trial.
Held: The House must be satisfied that there was ‘a situation a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.’ Assuming the wrong direction on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?
Viscount Simon LC: ‘the provision that the Court of Criminal Appeal may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed, would on the evidence, properly admissible, without doubt convict.’ It is a high and exacting test and we have come to be of the view, that it has not been passed in the present case.’ Where the verdict is criticised on the ground that the jury were permitted to consider inadmissible evidence, the question is whether no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken on the ground of its inadmissibility.
The word ‘charged’ means ‘charged in court’, not merely suspected or accused without subsequent prosecution.

Judges:

Viscount Simon LC

Citations:

[1944] AC 315, (1945) 30 Crim App R 40

Jurisdiction:

Scotland

Cited by:

Cited – Regina v Pendleton HL 13-Dec-2001
The defendant had appealed his conviction for murder to the Court of Appeal. The 1968 Act required the court to consider whether the conviction was unsafe. New evidence was before the Court of Appeal, but they had rejected the appeal.
Held: . .
Applied – Regina v Associated Octel Ltd HL 14-Nov-1996
The appellants operated a chemical plant. When the plant was shut down for its annual maintenance, an independent firm repaired a tank lining. An employee of that firm was working by electric light. He had to clean the tank with acetone and resin. . .
Cited – Michael Pringle v The Queen PC 27-Jan-2003
PC (Jamaica) The court considered the way in which statistical conclusions drawn from DNA evidence had been presented to the jury. The judge had fallen into the ‘Prosecutor’s Fallacy.’ Also the court had relied . .
Cited – Farnell, Regina (on Application By) v Criminal Cases Review Commission Admn 15-Apr-2003
The appellant sought judicial review of the respondents refusal to refer his case back to the Court of Appeal.
Held: The Commission had misunderstood the way in which the Court of Appeal worked, by anticipating that it would reconsider the . .
Cited – Michael Yearwood v The Queen PC 26-Jun-2001
PC (Grenada) The defendant appealed against his conviction for murder. He claimed a misdirection on provocation.
Held: The judge’s direction had been over elaborate, and gave too much weight to the old law. . .
Cited – Regina v Davis, Rowe, Johnson CACD 17-Jul-2000
The court made a distinction between convictions found on appeal to be unfair, and those found to be unsafe. The prosecution had not disclosed to the defendants that the source of their information was a police informer. The European Court of Human . .
Cited – Kelleher, Regina v CACD 20-Nov-2003
The defendant, out of strong conviction, entered an art gallery and knocked the head from a statue of Margaret Thatcher.
Held: The court examined the breadth of the defence of ‘lawful excuse’ to a charge of criminal damage, and whether a court . .
Cited – Michael Adams and Frederick Lawrence v Regina PC 18-Mar-2002
PC (Jamaica) The defendants appealed against convictions for non-capital murder. Because of delays, the defendants had served almost the full minimum sentence.
Held: The trial judge had heard a plea of no . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 July 2022; Ref: scu.182510

Mavor and Coulson v Grierson: SCS 16 Jun 1892

A firm of electric contractors raised an action against a person whose house they had lighted with electricity, for pounds 169, 0s. 7d., the balance of their account. After the summons had been signeted, but before it was called, the defender offered the pursuers pounds 155 in full of their claims. This offer was refused. In the defences to the action the defender tendered the pursuers pounds 50 ‘in full of their claims in this action.’ The Court in decerning against the defender for payment to the pursuers of pounds 44, 13s. 1d., held that the defender was entitled to expenses of process.

Citations:

[1892] SLR 29 – 766

Links:

Bailii

Jurisdiction:

Scotland

Litigation Practice, Costs

Updated: 17 July 2022; Ref: scu.613531

Royal Society for The Protection of Birds v Scottish Ministers: SIC 18 Dec 2014

SIC Impact of wind farm developments on bird populations On 13 February 2014, the Royal Society for the Protection of Birds (the RSPB) asked the Scottish Ministers (the Ministers) for specified information relating to bird populations.
The Ministers sought clarification of this request and the RSPB confirmed that it was seeking information relating to the impact of named east coast wind farm projects on bird populations. The Ministers initially failed to provide the RSPB with a response to this clarified request. Following a review, the Ministers claimed the information was excepted from disclosure under regulation 10(4)(c) of the EIRs (as a request formulated in too general a manner).
The Commissioner investigated and found that the Ministers had failed to respond to the RSPB’s request for information in accordance with the EIRs. This was because it had wrongly applied the exception contained in regulation 10(4)(c) of the EIRs and had failed to comply fully with its related duty to provide advice and assistance under regulation 9(2) of the EIRs. She required the Ministers to provide the RSPB with a review outcome that did not rely upon the exception in regulation 10(4)(c).

Citations:

[2014] ScotIC 261 – 2014

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 17 July 2022; Ref: scu.542675

AMN Group Ltd v Gilcomston North Ltd and others: SCS 20 Jun 2008

Outer House – The phrase ‘aware . . that loss, injury or damage caused as aforesaid had occurred’ as meaning ‘aware . . that a stateable prima facie claim . . could properly be advanced against someone’ the resolution of that issue will ultimately be one for the Lord Ordinary who hears the evidence and submissions at the proof before answer. It would be for the Lord Ordinary to assess: ‘whether the pursuers were by the critical [date] aware, or could with reasonable diligence have become aware, that relevant loss and damage known to them was actionable, in the sense that a stateable prima facie claim in negligence could properly be advanced against someone. Certainty or even probability of success in any such claim would not, I think, be required’

Judges:

Lord Emslie

Citations:

[2008] ScotCS CSOH – 90

Links:

Bailii

Statutes:

Prescription and Limitation (Scotland) Act 1973 11(3)

Cited by:

Cited – David 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 . .
Cited – David 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.

Scotland, Limitation

Updated: 17 July 2022; Ref: scu.270221

Matthews v Hunter and Robertson Ltd: SCS 11 Jun 2008

Judges:

Lord Brodie

Citations:

[2007] ScotCS CSOH – 88

Links:

Bailii

Citing:

Cited – Clarke v Bruce Lance and Co CA 1988
The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Professional Negligence

Updated: 15 July 2022; Ref: scu.268803

Cannop and others v Brown and others: SCS 11 Jun 2008

Citations:

[2008] ScotCS CSIH – 38

Links:

Bailii

Citing:

Cited – D Holc-Gale v Makers UK Ltd EAT 30-Nov-2005
EAT Practice and Procedure – 2002 Act and pre-action requirements. Regulation 14 2004 Regulations; excluding discrimination Questionnaires from definition of statutory grievance. When failure to comply with SGP . .
Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
Lists of cited by and citing cases may be incomplete.

Scotland, Employment

Updated: 15 July 2022; Ref: scu.268801

Trustees of the Harbour of Dundee v D and J Nicol: HL 10 Dec 1914

The pursuers challenged an initiative by the defenders which allegedly harmed their local steamer excursion business. The House was asked whether steamers acquired by a statutory body of harbour trustees who maintained a service of steamers for ferry traffic could be let out by them on hire for excursion trips beyond the ferry limits.
Held: Lord Dunedin emphasised that: ”Incidental,’ in my view, means incidental to the main purposes of the main business.’
He continued: ‘By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest. Though the phrase ‘title to sue’ has been a heading under which cases have been collected from at least the time of Morison’s Dictionary and Brown’s Synopsis, I am not aware that anyone of authority has risked a definition of what constitutes title to sue. I am not disposed to do so, but I think it may fairly be said that for a person to have such title he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies. . . If any persons are in such a relation as to constitute them trustees, or if, without being technically trustees, they have a fiduciary duty to others, those persons to whom they owe a fiduciary duty will have a title to sue to prevent the infringement of that duty.’ and ‘when I find that the respondents in the capacity of harbour ratepayers are members of the constituency erected by the Act of Parliament to elect the trustees, and as such are also persons for whose benefit the harbour is kept up, I cannot doubt that they have a title to prevent an ultra vires act of the appellants, which ultra vires act directly affects the property under their care. It is not only that loss of that property through improper acting may have the effect of imposing heavier rates on the respondents in the future, but in the words of Lord Johnston in the Stirling County Council case, as they have contributed to the funds which bought the property, ‘they have an interest in the administration of a . . fund to which they have contributed’, and a title flowing from that position and interest.’

Judges:

Lord Dunedin

Citations:

[1915] AC 550, [1914] UKHL 4, 1915 SC (HL) 7, (1914) 2 SLT 418

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Hazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .
Cited – Looe Fuels Ltd., Regina (on the Application of) v Looe Harbour Commissioners Admn 27-Apr-2007
The claimants sought judicial review of a decision of the defendant harbour masters themselves to install and sell from the harbour all fule for use by boats using it, saying that they had no power to operate such an enterprise.
Held: Whilst . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Lists of cited by and citing cases may be incomplete.

Local Government

Updated: 15 July 2022; Ref: scu.268227

Atkins v London Weekend Television: 1978

Whilst there could come a point at which material published about a forthcoming trial was so detrimental to the interests of an accused person that a fair trial might become impossible, there could never be actual proof of the ‘poisoning’ of the ‘well of truth’. The Lord Advocate decided not to continue with a prosecution on account of prejudicial publicity.

Citations:

1978 JC 48

Jurisdiction:

England and Wales

Cited by:

Cited – Her Majesty’s Advocate v William Frederick Ian Beggs (Opinion No 2) HCJ 21-Sep-2001
The defendant complained that an article published on the Internet was a contempt of court in that it prejudiced his trial for murder by reference inter alia to previous proceedings against him. There were others also. The court was aksed whether . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 15 July 2022; Ref: scu.248471

Allarburn Farm Dairy Ltd v Johnston: EAT 4 Apr 2006

EAT Claimant had been dismissed by the respondents, a milk and farm produce retailing business. The tribunal found that his dismissal was unfair and awarded compensation. It was accepted that the claimant had been unfairly dismissed but it had been open to the claimant to return to his old job and the respondents submitted that the tribunal should, in those circumstances, have considered whether he had failed to mitigate his loss by not doing so. It was submitted on behalf of the claimant that the tribunal were bound but had failed to do so and that the Employment Appeal Tribunal should determine the issue. The Employment Appeal Tribunal were satisfied that the tribunal had failed to consider the question of mitigation of loss but did not consider that it was open to them to make the relevant findings.

Judges:

Lady Smith

Citations:

[2006] UKEAT 0083 – 05 – 0404, UKEATS/0083/05

Links:

Bailii, EAT

Jurisdiction:

Scotland

Employment

Updated: 15 July 2022; Ref: scu.241485