Category: Scotland

Worbey and Another v Elliott: SCS 6 Feb 2014

‘the pursuers seek an accounting by the defender of his intromissions with the receipts obtained by him from two social networking applications (‘apps’), and payment of such sum as may be found to be due to them following that accounting. In the alternative, they seek payment of a sum estimated to represent the sum due to them.’

Lord Tyre
[2014] ScotCS CSOH – 19
Bailii

Scotland, Intellectual Property, Damages

Updated: 29 November 2021; Ref: scu.521148

IA (Iran) v The Secretary of State for The Home Department (Scotland): SC 29 Jan 2014

The appellant Iranian challenged refusal of his claim for asylum. He had been granted refugee status in Iraq and in Turkey by the United Nations commission, but on arrival in the UK, his asylum claim had been rejected on the basis of the credibility of his assertions.
Held: The appeal failed. Those making such decisions had an independent responsibility to make their own assessments, and were not bound by decisions of the UN Commissioners. A decision of the Commissioner should be departed form only after close inspection, but there was no burden on him to justify any such departure.
‘Although little may be known about the actual process of decision-making by UNHCR in granting refugee status in an individual case, the accumulated and unrivalled expertise of this organisation, its experience in working with governments throughout the world, the development, promotion and enforcement of procedures of high standard and consistent decision-making in the field of refugee status determinations must invest its decisions with considerable authority.’

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Hughes, Lord Hodge
[2014] UKSC 6, [2014] 1 WLR 384, 2014 SC (UKSC) 105, [2014] WLR(D) 36, 2014 SCLR 366, 2014 GWD 4-86, 2014 SLT 598, [2014] 1 All ER 1015, [2014] Imm AR 613, UKSC 2012/0157
Bailii, WLRD, Bailii Summary, SC Summary, SC
Convention and Protocol relating to the Status of Refugees (1951)
Scotland
Citing:
Leave – IA, Re Leave To Appeal SCS 1-Apr-2011
Extra Division, Inner House – The applicant sought leave to appeal against a decision of the Asylum and Immigration Tribunal rejecting his appeals. The latter decision dismissed the applicant’s appeal against a decision of the respondent, the Home . .
Cited – KK (Recognition Elsewhere As Refugee) Democratic Republic of Congo IAT 25-Feb-2005
Ouseley J P said: ‘As I have noted, independent documentary evidence regarding the procedures used to issue the appellant the refugee certificate in Iraq and refugee status in Turkey by the UNHCR was not before me, nor evidence regarding on what . .
Cited – MM (Iran) v The Secretary of State for The Home Department CA 17-Nov-2010
Appeal against the order of the Asylum and Immigration Tribunal following a reconsideration hearing that the tribunal’s earlier determination promulgated dismissing the appellant’s appeal against the Secretary of State’s refusal of his asylum claim . .
Cited – E v Secretary of State for the Home Department etc CA 2-Feb-2004
The court was asked as to the extent of the power of the IAT and Court of Appeal to reconsider a decision which it later appeared was based upon an error of fact, and the extent to which new evidence to demonstrate such an error could be admitted. . .

Cited by:
Cited – EM (Eritrea), Regina (on The Application of) v Secretary of State for The Home Department SC 19-Feb-2014
SSHD must examine safety of country for return
The Court was asked: ‘Is an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which she or he first sought or was granted asylum) required to establish that there are in Italy ‘systemic . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 29 November 2021; Ref: scu.521154

Trump International Gold Club Scotland Ltd and Another v The Scottish Ministers and Another: SCS 11 Feb 2014

Outer House

Lord Doherty
[2014] ScotCS CSOH – 22, 2014 SLT 406, 2014 GWD 8-154, [2014] CSOH 22
Bailii
Citing:
At Outer House – Trump International Golf Club Scotland Ltd and Another v The Scottish Ministers and Another SCS 17-Oct-2013
Outer House – Court of Session – This petition for judicial review challenged the decisions of the Scottish Ministers (a) not to hold a public inquiry, and (b) to grant consent under section 36 of the Electricity Act 1989 for the construction and . .

Cited by:
At Outer House (2) – Trump International Golf Club Scotland Ltd and Another v The Scottish Ministers SCS 5-Jun-2015
The petitioner golf course objected to the consent to an offshore windfarm. . .
At Outer House (2) – Trump International Golf Club Scotland Ltd and Another v The Scottish Ministers (Scotland) SC 16-Dec-2015
The appellant challenged the grant of permission to the erection of wind turbines within sight of its golf course.
Held: The appeal failed. The challenge under section 36 was supported neither by the language or structure of the 1989 Act, and . .

Lists of cited by and citing cases may be incomplete.

Scotland, Planning

Updated: 29 November 2021; Ref: scu.521147

Irving v Hiddleston: OHCS 1998

Courts are moving more and more to requiring parties to settle all issues in one action.

Lord Macfadyen
1998 SCLR 350
Scotland
Cited by:
Cited – Mark George Thomson v Michael Coutts ScSf 1-Jun-2001
The pursuer sought damages, and the defender asserted res judicata, in that this was in effect an attempt by the pursuer to recover his damages in instalments. Following an accident, damages had been awarded. The pursuer now sought to recover his . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 November 2021; Ref: scu.181288

Glasgow Corporation v Taylor: HL 18 Nov 1921

A father brought an action for damages for the death of his son who had eaten poisonous berries growing in one of the defenders’ public parks. The plants were easily accessible from a children’s play area and it was said that the defender had a duty to warn children against the danger or to prevent them from reaching the shrubs.
Held: A plea to the relevancy of the pursuer’s case was repelled.
Lord Shaw of Dunfermline said: ‘Grounds thrown open by a municipality to the public may contain objects of natural beauty, say precipitous cliffs or the banks of streams, the dangers of the resort to which are plain.’ One cannot ‘expect an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake or a cliff and to impose a duty on him to do so.’ and ‘In grounds open to the public as of right, the duty resting upon the proprietors . . of making them reasonably safe does not include an obligation of protection against dangers which are themselves obvious. Dangers, however, which are not seen and obvious should be made the subject either of effectively restricted access or of such express and actual warning of prohibition as reaches the mind of the persons prohibited.’ The House treated artificial landscape features on the same footing as natural ones.

Lord Shaw of Dunfermline
[1922] 1 AC 44, 1922 SC (HL) 1, [1921] All ER Rep 1, [1921] UKHL 2, 1921 2 SLT 254, 29 ALR 846, [1921] UKHL 3
Bailii, Bailii
Scotland
Citing:
Approved – Stevenson v Glasgow Corporation 1908
Lord M’Laren said: ‘in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures. The situation of a town . .

Cited by:
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Tomlinson v Congleton Borough Council and others HL 31-Jul-2003
The claimant dived into a lake, severely injuring himself. The council appealed liability, arguing that it owed him no duty of care under the Act since he was a trespasser. It had placed warning signs to deter swimmers.
Held: The council’s . .
Applied – Cotton v Derbyshire District Council CA 20-Jun-1994
No notice warning of danger was necessary on a public right of way for an obviously dangerous cliff. The Court upheld the decision of the trial judge dismissing the plaintiff’s claim for damages for serious injuries sustained from falling off a . .
Applied – Karl Andrew Whyte v Redland Aggregates Limited CA 27-Nov-1997
The appellant dived into a disused gravel pit and struck his head on an obstruction on the floor of the pit. The Court dismissed his appeal that he was not entitled to damages.
Held: ‘In my judgment, the occupier of land containing or bordered . .
Cited – Cotton v Derbyshire Dales District Council CA 10-Jun-1994
The claimant had been injured falling on land owned by the defendant. The had gone down what he must have known was not a path and fallen over a cliff. He appealed dismissal of his claim.
Held: Any notice would only have warned of the obvious . .
Cited – Woodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .

Lists of cited by and citing cases may be incomplete.

Negligence

Leading Case

Updated: 29 November 2021; Ref: scu.181271

Holland v Lanarkshire Middle Ward District Committee: 1909

Duty to fence a quarry. On a failure the land owner may be liable in damages. It was doubtful that a child would be liable in contributory negligence.

Lord President Dunedin, Lord Kinnear
1909 SC 1142
Scotland
Cited by:
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 29 November 2021; Ref: scu.181274

Sustainable Shetland v The Scottish Ministers and Another: SCS 3 Dec 2013

Second Division – Inner House -The petitioners challenged the grant of permission under the 1989 Act for a windfarm on Shetland.

Lord Carloway
[2013] ScotCS CSIH – 116
Bailii
Electricity Act 1989 36, Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000
Scotland
Citing:
At Outer House – Sustainable Shetland, Re Judicial Review SCS 24-Sep-2013
Outer House – The petitioner environmental group objected to the grant under the 1989 Act of permission for the construction for a substantial wind farm in Central Mainland, Shetland. . .

Cited by:
Second Division – Sustainable Shetland v The Scottish Ministers and Viking Energy Partnership for Judicial Review SCS 9-Jul-2014
Inner House, First Division – Application regarding substantial wind farm on Shetland. The claimants said that the defenders had failed to take proper account of te effect of the proposed development on the whimbrel. . .
Second Division – Sustainable Shetland v The Scottish Ministers and Another (Scotland) SC 9-Feb-2015
Wind Farm Permission Took Proper Account
Sustainable Shetland challenged the grant of permission for a wind farm saying that the respondents had failed properly to take account of their obligations under the Birds Directive, in respect of the whimbrel, a protected migratory bird.
Scotland, Planning, European, Utilities, Environment

Updated: 28 November 2021; Ref: scu.519746

Black and Others v The North British Railway Company: 1907

The widow and children of man who had been killed while travelling as a passenger on one of their trains claimed damages against the railway company. A court of seven judges was asked to lay down the principles on which on which damages should be assessed under the head of solatium. For the pursuers it was contended that they should be found entitled to enhanced damages if they were able to show that the accident was caused by gross negligence.
Held: The argument was rejected. There was no authority for any distinction between damages and exemplary damages in the law of Scotland

Lord President Dunedin
[1907] 15 SLT 840
Scotland
Cited by:
Cited – D Watt (Shetland) Ltd v Reid EAT 25-Sep-2001
The employer appealed an award of ten thousand pounds including aggravated damages, and other elements after a finding of sex discrimination. They also awarded six hundred pounds in interest. It was asserted that Scots law did not allow for . .
Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .

Lists of cited by and citing cases may be incomplete.

Damages

Leading Case

Updated: 28 November 2021; Ref: scu.181344

Brown and Another (Joint Administrators of Oceancrown Ltd) v Stonegale Ltd: SCS 11 Dec 2013

Administrators sought to have set aside transactions made before the companies went into administration.
Held: Rejecting the director’s arguments, the Lord Ordinary said: ‘No one paid anything for 110, 210, 260 Glasgow Road and 64 Roslea Drive. The sellers, namely Oceancrown, Loanwell and Questway, did not receive anything in return for the dispositions under challenge. They gifted the properties to the dispones . . That the bank was prepared to discharge the standard securities over all five properties in return for the monies forwarded to it does not create a consideration given in return for the subsequent dispositions to Stonegale. No party gave the sellers anything in return for the conveyances under challenge. Any value received was the value paid in respect of number 278. That is what was transferred to McClure Naismith. In my view nothing else alters that basic fact. All that happened was that Strathcroft, on the direction of Mr Pelosi senior, paid the bank monies which were designed to, and did persuade the bank to discharge the standard securities over the five properties, all in order to facilitate the subsequent gratuitous sales. Neither that payment, nor any consequential reduction in indebtedness, was in consideration for the subsequent transactions. It was a mechanism for allowing the inter-company transfers which it was hoped would achieve the retention of the ‘profit’ on 278 within the group (and regarding Roslea Drive, Mr Pelosi junior) – and free of the bank’s securities.’ . . And ‘The dispositions under challenge were gratuitous alienations. Were it otherwise the bank would have received in excess of andpound;4m, and the overall indebtedness would have been reduced by that amount. The price obtained for 278 was used to allow the other Glasgow Road properties to be transferred without consideration to another company which, nominally at least, was owned and controlled by Mr Pelosi junior, and, in the case of 64 Roslea Drive, to him personally.’

Lord Ordinary Lord Malcom
[2013] ScotCS CSOH – 189
Bailii
Insolvency Act 1986 242
Cited by:
Appeal from – Brown and Another v Stonegale Ltd and Another SC 22-Jun-2016
The insolvent companies administrators sought reduction of alienations by the companies before entering into administration. It was said that their banker lenders had been misled as to the values of secured properties, agreeing to their release . .

Lists of cited by and citing cases may be incomplete.

Scotland, Insolvency

Updated: 27 November 2021; Ref: scu.519235

Dieter Rossmeier v Mountbody Transport and Others: IHCS 7 Feb 2000

A firm with its business base outside had begun an action in Scotland. The court ordered the pursuer to nominate somebody within the jurisdiction to have conduct of the proceedings and to bear the possible burden of costs. The order was not valid since it was in breach of European law. A Scottish court order would be enforceable in Germany, and the order discriminated against the citizen of another member state under article 12 of the Treaty.

Times 07-Feb-2000
EC Treaty Art 12
Scotland

European

Updated: 23 November 2021; Ref: scu.79959

Slevin v Premier Foods Group (T/A Hovis): EAT 9 May 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair dismissal. Misconduct. Claimant found to have committed gross misconduct by admittedly having jammed fuel pump nozzle open when refuelling, knowing that he was ‘100% wrong’ to have done so. Appeal on bias and perversity grounds. Bias grounds departed from and assertions in Notice of Appeal that Tribunal had failed to take account of evidence and reached findings which had no basis in the evidence not followed up with a timeous application for a note from the Tribunal. Notice of Appeal shown to be characterised by unsupported assertions and hyperbole. Perversity not shown. Tribunal had not erred in any respect.

Lady Smith
[2012] UKEAT 0053 – 11 – 0905
Bailii
Scotland

Employment

Updated: 25 November 2021; Ref: scu.459939

Countess of Strathmore v George Forbes, Sometime Factor and Steward To The Said Countess, and Susan-Janet-Emilia Forbes, An Infant, Lawful Daughter of The Said George Forbes, By The Said Countess, His Wife: HL 20 Mar 1751

Marriage – Cohabitation – Proof. –
A declarator of marriage and legitimation was brought by the respondent, Forbes, founding upon marriage celebrated and performed in Scotland, by some clergyman unknown; and founding, also, on cohabitation in Scotland, and also cohabitation as man and wife in Holland. Held him entitled to a proof of the marriage, and also of the cohabitation as man and wife in Scotland, but not of the cohabitation in Holland. On advocation of this judgment of the Commissaries, the Court remitted to them to allow a proof of the marriage in Scotland, and of the cohabitation in Holland, as an incident of that marriage. On appeal to the House of Lords, appeal withdrawn, of consent, and interlocutors affirmed.

[1751] UKHL 6 – Paton – 684
Bailii
Scotland

Family

Updated: 22 November 2021; Ref: scu.558203

Walter Grosset, Esq, Inspector-General of His Majesty’s Customs At The Port of Leith v Thomas Ogilvy of Dundee, In The County of Forfar, Merchant: HL 16 Feb 1753

Customs –
Act 3 Anne, c. 13, and 9 Geo. II.-Indemnity Act, 18 Geo. II.-Tobacco was imported from the Plantations abroad, by merchants in Leith, upon which the usual duties were paid. Afterwards it was exported, and, in terms of the act in such cases, a drawback of the whole duty was obtained, and the goods exported under a certificate that they were for foreign export. After the ship proceeded to sea the tobacco was clandestinely relanded: Held that the Indemnity Act; 18 Geo. II., did not apply to such a case, and that the tobacco was forfeited, and the penalties attached.

[1753] UKHL 2 – Paton – 1
Bailii
Scotland

Customs and Excise

Updated: 22 November 2021; Ref: scu.558211

Charles Mercer, Second Son of Sir Lawrence Mercer v His Majesty’s Advocate: HL 14 Dec 1753

HL Entail. – Forfeiture.-
Held that the appellant was not entitled to claim his brother’s forfeited estate, he not being an heir-substitute, but an heir-male, of the marriage under the investitures. And that the deed he founded on not containing prohibitory, irritant, and resolutive clauses, nor recorded, could not support his claim.

[1753] UKHL 1 – Paton – 538, (1753) 1 Paton 538
Bailii
Scotland

Land

Updated: 22 November 2021; Ref: scu.558215

Daniel Midwinter, Et Alii Book Sellers In London v Alex Kincaid, Et Alii Booksellers In Edinburgh and Glasgow: HL 11 Feb 1751

Process. – Literary Property. – Act 8 Anne c. 19.-
Found in the House of Lords, that an action on the statute was improperly and inconsistently brought, by demanding at the same time damages for books surreptitiously sold, and also the penalties of the act; and likewise, by joining in the same summons several pursuers claiming distinct and independent rights in different books.

Lord Elchies
[1751] UKHL 1 – Paton – 488
Bailii
Scotland

Intellectual Property

Updated: 22 November 2021; Ref: scu.558201

James Catanach, Et Alii C H Gordon, and R Paterson, Vice-Chancellor of The University of Aberdeen: HL 11 Apr 1745

Professor of law.-
It being required by the foundation of a college, that the professors of law should be doctors of laws, or at least licentiates, cum rigore examinations, an objection that the college could no longer confer that degree legally, was not sustained against one who pretended to be so qualified.

[1745] UKHL 1 – Paton – 401
Bailii
Scotland

Legal Professions

Updated: 22 November 2021; Ref: scu.557095