Category: Scotland

Thomas Dagg and Son Ltd v Taycove Limited Dickensian Property Co Ltd: ScSf 20 Jan 2005

Judges:

Sheriff Principal E.F. Bowen

Citations:

[2005] ScotSC 7

Links:

ScotC, Bailii

Citing:

Cited – Alexander Ward and Co Ltd v Samyang Navigation Co Ltd HL 1975
The House explained the distinction between an arrestment to found jurisdiction and an arrestment on the dependence. The purpose of the latter was to freeze the subject arrested in the hands of the common debtor or in the case of a ship to prevent . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 29 June 2022; Ref: scu.222441

Alexander Ramsay Irvine v Alexander Irvine, By His Guardians: HL 10 Dec 1753

hl Marriage Articles, Fraud – Proof –
(1) Reduction of marriage articles on the head of imbecility and fraud, sustained by the Court of Session, in respect of the suspicious and unequal nature of the whole transaction, but reversed in the House of Lords, in respect the marriage had followed thereon, and that fraud or imbecility was not proved. (2) The lady’s mother was offered as a witness, but objected to on the ground of malice against the appellant. Objection repelled, and proof of reprobators refused. (3) The physician who attended the lady’s father, and who was charged with having availed himself of the opportunities which his attendance afforded, to induce the marriage settlement, rejected as a witness in support of the deed.

Citations:

[1753] UKHL 1 – Paton – 547, (1753) 1 Paton 547

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 28 June 2022; Ref: scu.558214

Earl of Zetland v Hislop: HL 12 Jun 1882

Citations:

[1882] UKHL 1, (1882) 9 R (HL) 40, (1881-82) LR 7 App Cas 427

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 28 June 2022; Ref: scu.279656

Clarke v Fennoscandia Limited Freakley, Phillips: OHCS 2 Dec 2004

The claimant had said that the defendants conspired to deny him the presidency of a company. He lost his case in the US, and the defendants chased him for costs. He asserted that the US judgment had been obtained by fraud. The defendants undertook not to seek furter enforcement of their costs.

Judges:

Lord Clarke And Lord Menzies And Lord Justice Clerk

Citations:

[2004] ScotCS 257, 2004 SC 197

Links:

Bailii, ScotC

Jurisdiction:

Scotland

Citing:

See Also – Clarke v Fennoscandia Limited and others OHCS 23-Jul-2003
. .
See Also – Clarke v Fennoscandia Ltd and others SCS 10-Mar-2000
Outer House – application to recover costs on award by court in Delaware . .

Cited by:

Appeal from – Clarke v Fennoscandia Ltd and others (Scotland) HL 12-Dec-2007
After being awarded costs in proceedings in the US, the defendants chased the claimant for their costs in Scotland. He sought an interdict saying that the judgment had been obtained by fraud. The defendant had give an undertaking not to pursue the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Torts – Other

Updated: 27 June 2022; Ref: scu.220059

Arthur D Little Ltd (in Administration) v Ableco Finance LLC: ChD 27 Mar 2002

The company was a subsidiary of two American companies, but was registered in Scotland. It charged its assets, but the charge was not registered in Scotland. On the insolvency of the company, the respondent chargee claimed it was a fixed charge not requiring registration. The administrators asserted that the charge was a floating charge and void if not registered.
Held: The schemes for registration of charges in the Act applied throughout the United Kingdom, and were not separate, even though the application of the machinery differed in each jurisdiction. Here however the charge was a fixed one, and valid.

Judges:

Mr Roger Kaye, QC

Citations:

Times 22-Apr-2002, Gazette 16-May-2002

Statutes:

Companies Act 1985 410

Jurisdiction:

England and Wales

Company, Scotland

Updated: 27 June 2022; Ref: scu.170068

Right Honourable Lady Dowager Forbes v Right Honourable James Lord Forbes: HL 18 Feb 1760

Heir and Liferenter – Liferenter’s Right to Enter Vassals – Agreement – Interest – Aliment.-
The liferentrix of an estate having, in the erroneous belief that certain bonds of provision, executed by her deceased husband on deathbed, in virtue of powers reserved by him in his antenuptial contract of marriage, were reducible on the head of deathbed, entered into agreements restricting her own liferent provisions: 1. Held, in an action of reduction to set aside these deeds of restriction, that the deeds did not prevent her from claiming her just rights: And, 2. That as liferentrix of both the lands of the lordship of Forbes, as well as of the superiorities thereof, and the patronages thereto belonging, she was entitled to enter vassals; reversing the judgment of the Court of Session: 3. Also that, as liferentrix, she had no claim against her daughters for alimenting them until their provisions fell due; the being alimented aliunde; and that she was not liable to make good a sum to Lord Forbes, to whom she had assigned such claim: 4. Interlocutor quoad ultra reversed, without prejudice to the question concerning the interest of the heritable debts, and cases remitted to discuss reasons of reduction otherwise.

Citations:

[1760] UKHL 2 – Paton – 36

Links:

Bailii

Jurisdiction:

England and Wales

Scotland

Updated: 27 June 2022; Ref: scu.558283

Transco Plc v Her Majesty’s Advocates: HCJ 16 Sep 2004

A dwellinghouse had exploded, killing the occupants. The defendant was to be tried for alleged breaches of the 1974 Act in the gas supoplies to the house. The appellant complained that a jury trial would be an infringement of its rights, since a jury asked to sit for three to six months would be prejudiced against it, and be unable to deliver a proper verdict.
Held: Applying Heasman, it was for the appellant to show that a jury trial would necessarily result in an infringement of its rights. That had not been shown. The absence of reasons from a jury’s verdict did not make for an unfair trial.

Judges:

Lord Maclean and Lord Osborne And Lord Hamilton

Citations:

[2004] ScotHC 57, [2004] ScotHC 68

Links:

ScotC, Bailii, Bailii

Statutes:

European Convention on Human Rights 6, Health and Safety at Work Act 1974 3

Citing:

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 – Refik Saric v Denmark ECHR 2-Feb-1999
The appellant complained that the absence of reasons from a jury’s verdict meant that the trial had been unfair.
Held: ‘The absence of reasons in the High Court’s judgment was due to the fact that the applicant’s guilt was determined by a . .
Cited – Heasman v J M Taylor and Partners SCS 8-Mar-2002
Appropriateness of use of jury in civil trials in Scotland. . .
Cited – Regina v Davies CACD 2003
The defendant said that section 40 of the 1974 Act was not compatible with the presumption of innocence in Article 6(2) of the Convention, unless the section was read down to impose only an evidential burden on the defendant.
Held: The Act was . .
Lists of cited by and citing cases may be incomplete.

Scotland, Crime, Human Rights

Updated: 21 June 2022; Ref: scu.213656

Nimmo v Alexander Cowan and Sons Ltd: HL 1967

The employer was prosecuted under the 1961 Act.
Held: the burden of proving that it was not reasonably practicable to make and keep a place of work safe rested upon the defendant employer. If an exception was to be established, it was for the party claiming the exception to establish it. (Majority) Where a linguistic construction of the statute could not clearly indicate upon whom the burden should lie the court should look to other considerations to determine the intention of Parliament such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden.
Lord Wilberforce: ‘the orthodox principle (common to both the criminal and the civil law) that exceptions, etc., are to be set up by those who rely on them.’

Judges:

Lord Wilberforce, Lord Guest, Lord Upjohn

Citations:

1967 SC (HL) 79, [1968] AC 107

Statutes:

Factories Act 1961 29(1), Mines and Quarries Act 1954 48(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Davidson v Lothian and Borders Fire Board IHCS 18-Jul-2003
The pursuer, a firefighter, sought damages for injury incurred during a drill. The drill involved manipulating a ladder, which was caught by the wind, a known risk in such exercises.
Held: The defenders had failed to discharge the burden on . .
Cited – Kerr v Department for Social Development (Northern Ireland) HL 6-May-2004
Wrongful Refusal of Benefits
The claimant was estranged from his family, but claimed re-imbursement of the expenses for his brother’s funeral. The respondent required him to establish that none of his siblings was in a better position than he to pay for the funeral, but he had . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Pennington v Surrey County Council and Surrey Fire and Rescue Service CA 9-Nov-2006
The claimant firefighter crushed a finger trying to release a traffic accident victim with a heavy machine for expanding gaps in metal. The defendant appealed on liability. The court was asked whether a simple warning of the possible danger was . .
Cited – Regina v Hunt (Richard) HL 1987
The court objected to the insistence on leaving the burden throughout a prosecution on the defendant on the ground that ‘the discharge of an evidential burden proves nothing – it merely raises an issue’. The House emphasised the special nature of . .
Cited – Clarke v Regina CACD 23-Apr-2008
The defendant appealed his conviction for providing immigration services when not qualified to do so. . .
Cited – Chargot Limited (T/A Contract Services) and Others, Regina v HL 10-Dec-2008
The victim died on a farm when his dumper truck overturned burying him in its load.
Held: The prosecutor needed to establish a prima facie case that the results required by the Act had not been achieved. He need only establish that a risk of . .
Cited – Smith v Northamptonshire County Council HL 20-May-2009
The claimant, a health care worker was visiting the home of a client when she fell from a defective wheelchair ramp and suffered injury. She sought damages from her employer.
Held: Her appeal failed (Lord Hope and Lady Hale dissenting). The . .
Cited – Baker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .
Lists of cited by and citing cases may be incomplete.

Scotland, Health and Safety

Updated: 21 June 2022; Ref: scu.184719

John Grant The Elder, and John Grant The Younger v Thomas Forbes: HL 29 Mar 1759

Cautioner – Damages for Oppressive and Illegal Execution of Diligence. –
An action of damages was raised by the respondent for oppressive and illegal execution of a caption against him for debt, brought against the cautioner of the messenger and another, who was accessory to these proceedings. Held the appellants liable in andpound;100 damages. Affirmed on appeal.

Citations:

[1759] UKHL 6 – Paton – 731

Links:

Bailii

Jurisdiction:

England and Wales

Scotland

Updated: 18 June 2022; Ref: scu.558281

Gabriel Napier, Writer In Edinburgh v Peter Napier of Napierstoun, and Margaret Young, His Spouse: HL 29 Apr 1726

Bankrupt – A debt having been made over by a person, in favour of his wife, stante matrimonio, and by her assigned to a second husband, as part of her tocher; the assignation was found not reducible at the instance of a creditor of the first husband.

Citations:

[1726] UKHL 1 – Paton – 1, (1726) 1 Paton 1

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 17 June 2022; Ref: scu.554227

MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School: HL 19 Jun 2003

Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the sexual orientation of the first claimant. Discrimination for sexual orientation does not come within the rules against sex discrimination. Mr MacDonald was dismissed because he was homosexual. A female homosexual would also have been dismissed. The appeals were dismissed. ‘These two appeals demonstrate the importance, in my opinion, when dealing with complaints under the 1975 Act and the other anti-discrimination Acts, of keeping in mind that they are intended to combat discrimination. They are anti-discrimination statutes. Absent discrimination, objectionable conduct by employers must be countered by other means than complaints under these Acts.’

Judges:

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Scott of Foscote, Lord Rodger of Earlsferry

Citations:

[2003] UKHL 34, Times 20-Jun-2003, [2003] ICR 867, Gazette 17-Jul-2003

Links:

House of Lords, Bailii

Statutes:

Sex Discrimination Act 1975, Council Directive 2000/78/EC of 27 November 2000

Jurisdiction:

Scotland

Citing:

Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Disapproved – Strathclyde Regional Council v Porcelli SCS 1986
Mrs Porcelli was employed as a science laboratory technician at a school in Glasgow. Two technicians in the same department pursued a vindictive campaign against her for the deliberate purpose of making her apply for a transfer to another school. . .
Cited – Smyth v Croft Inns Ltd 1996
A barman in a public house with Protestant customers in a ‘loyalist’ area of Belfast was constructively dismissed because he was a Roman Catholic.
Held: That was discrimination ‘on the ground of religious belief’ within the section. The . .
Disapproved – British Telecommunications Plc v Williams EAT 3-Jun-1997
Sexual harassment was defined as ‘unwanted conduct of a sexual nature, or other conduct based upon sex affecting dignity at work’. It would be no defence to a complaint of sexual harassment that a person of the opposite sex would have been similarly . .
Overruled – Burton and Another v De Vere Hotels EAT 3-Oct-1996
Two black waitresses, clearing tables in the banqueting hall of a hotel, were made the butt of racist and sexist jibes by a guest speaker entertaining the assembled all-male company at a private dinner party.
Held: The employer of the . .
Cited – S S Hussain v HM Prison Service EAT 1-Mar-2002
EAT Race Discrimination – Direct . .
Disapproved – Go Kidz Go Ltd v Bourdouane EAT 10-Sep-1996
. .
Cited – 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 – Lustig-Prean and Beckett v The United Kingdom ECHR 27-Sep-1999
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; No separate issue under Art. 14+8; Just satisfaction reserved
Hudoc Judgment (Just satisfaction) . .
Cited – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Applin v Race Relations Board HL 27-Mar-1974
A couple cared for children without fee who were referred to them by a local authority. The children they cared for included coloured children. Two individuals sought to prevent the couple caring for coloured children. The question for the House of . .
Cited – Regina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
Cited – Grant v South West Trains Ltd ECJ 17-Feb-1998
A company’s ban on the provision of travel perks to same sex partners of employees did not constitute breach of European sex discrimination law. An employer’s policy was not necessarily to be incorporated into the contract of employment. The court . .
Cited – Weathersfield Ltd (T/a Van and Truck Rentals) v Sargent CA 10-Dec-1998
The employer, a vehicle hire operator, explained to the Claimant employee following her appointment as a receptionist their policy that if she received an enquiry from any coloured or Asians, judging by their voices, she was to tell them that there . .
See Also – Pearce v Mayfield Secondary School EAT 26-Oct-1998
‘This is an appeal by Ms Shirley Pearce [‘the applicant’] against a decision of a Chairman (Mr R H Trickey) sitting alone at the Southampton Industrial Tribunal on 4th June 1997, dismissing her complaint of sex discrimination brought against her . .
See Also – Pearce v Mayfield School EAT 7-Oct-1999
Directions appeal. . .
At EAT – S Pearce v The Governing Body of Mayfield Secondary School EAT 7-Apr-2000
Abuse which was directed at a homosexual teacher by students, where the abuse was directed at that homosexuality, but was gender specific rather than non-gender specific, (‘dyke’ and lesbian’ rather than ‘gay’) was not itself sex discrimination. The . .
Appeal from – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .

Cited by:

Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Cited – Chief Constable of Kent County Constabulary v Baskerville CA 3-Sep-2003
The claimant sought damages for sex discrimination by fellow police officers in an action against the Chief Constable. The Chief Constable said he was liable for the unlawful acts of fellow officers.
Held: Anything done by an employee was done . .
Cited – Kettle Produce Ltd v Ward EAT 8-Nov-2006
EAT Sex discrimination – Comparison
When a male manager entered the women’s toilets and shouted at a woman on her break, the correct question which should be asked is this: would the Respondent, in the form . .
Cited – Conteh v Parking Partners Ltd EAT 17-Dec-2010
EAT HARASSMENT – Conduct
Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 16 June 2022; Ref: scu.183696

Nairn v University of St Andrews: HL 10 Dec 1908

Women graduates of St Andrews and Edinburgh, who, as graduates, were members of the general council of their university, sought a declarator that they were entitled to vote under section 27 of the 1868 Act. The section provided that ‘every person’ whose name was on the register of the general council, if of full age ‘and not subject to any legal incapacity’, was to be entitled to vote for the member of Parliament for the university.
Held: The section did not confer a right to vote on women graduates.
Lord Loreburn LC commented, ‘It would require a convincing demonstration to satisfy me that Parliament intended to effect a constitutional change so momentous and far-reaching by so furtive a process.’
Lord Ashbourne said: ‘If it was intended to make a vast constitutional change in favour of women graduates, one would expect to find plain language and express statement.’

Judges:

Lord Loreburn LC

Citations:

[1909] AC 147, 1909 SC (HL) 10, [1908] UKHL 3, (1908) 16 SLT 619

Links:

Bailii

Statutes:

Representation of the People (Scotland) Act 1868 27, Universities Elections Amendment (Scotland) Act 1881

Jurisdiction:

Scotland

Cited by:

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.

Constitutional, Elections, Education

Updated: 14 June 2022; Ref: scu.240006

Moorov v HM Advocate: 1930

Corroboration evidence.

Citations:

1930 JC 68, [1930] ScotHC HCJAC – 1

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Holland v Her Majesty’s Advocate (Devolution) PC 11-May-2005
The defendant appealed his convictions for robbery. He had been subject to a dock identification, and he complained that the prosecution had failed in its duties of disclosure.
Held: The combination of several failings meant that the defendant . .
Cited – Mitchell, Regina v SC 19-Oct-2016
Appeal against conviction for murder. Evidence was agreed with her representatives as to previous acts using knives, but was presented despite withdrawal by her of her consent. The prosecution now appealed against the quashing of the conviction.
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 14 June 2022; Ref: scu.225521

Bogie Trading As Oakbank Services v The Forestry Commission: SCS 23 Nov 2001

The pursuer sought declarator that he had a valid option to purchase an area of ground extending to 24 hectares or thereby together with a servitude right of access thereto, and that the defenders were bound and obliged by the terms and conditions thereof.

Judges:

Lord MacFadyen

Citations:

[2001] ScotCS 267, 2002 SCLR 278

Links:

Bailii

Scotland, Contract, Land

Updated: 13 June 2022; Ref: scu.202224

Azad Gardi v Secretary of State for the Home Department (No 2): CA 22 Oct 2002

The Home Secretary sought to appeal against the decision of the Immigration Appeal Tribunal.
Held: The IAT had been reviewing a decision of an adjudicator in Scotland. Accordingly, any appeal against the IAT decision lay to the Court of Session, not to the Court of Appeal. The earlier order was a nullity.

Judges:

Ward LJ

Citations:

Times 25-Oct-2002, Gazette 21-Nov-2002, [2002] EWCA Civ 1560, [2002] 1 WLR 3282

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Starred Gardi (Asylum, KAA, Internal Flight Alternative) Iraq IAT 16-Nov-2001
. .
See Also – Gardi v Secretary of State for the Home Department CA 24-May-2002
The applicant was an ethnic Kurd who claimed asylum, having fled Iraq.
Held: To establish a claim, he must show that because of a well founded fear of persecution for a Convention reason, he was outside his country and unable or, because of . .
Lists of cited by and citing cases may be incomplete.

Immigration, Scotland

Updated: 11 June 2022; Ref: scu.177488

Livingstone v The Rawyards Coal Co: SCS 20 May 1879

Citations:

[1879] SLR 16 – 530

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Appeal from – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 11 June 2022; Ref: scu.614752

EDI Central Ltd v National Car Parks Ltd: SCS 27 Oct 2010

Judges:

Lord Glennie

Citations:

[2010] ScotCS CSOH – 141

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – IBM v Rockware Glass Ltd CA 1980
The court considered the meaning on a promise by one party to use its best endeavours to obtain a relevant planning permission.
Held: The obligation included an obligation to appeal from an initial refusal of permission so long as the . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 11 June 2022; Ref: scu.425908

In re Sutherland, dec’d; Winter v Inland Revenue Commissioners: HL 1963

The concept of a contingent liability was considered.
Held: In Scots law, a contingent liability is a liability which, by reason of something done by the person bound, may or may not arise depending on the happening of a future event.
Lord Guest said: ‘The purpose of section 7(5) . . is to value the property. ‘It does not’ as Lord Evershed said ‘require you to assume that the sale . . has occurred.’ It simply prescribes, as the criterion for value, price in the open market as between a willing seller and a willing buyer, which is a familiar basis for valuation.’
He set out the test for a contingent liability as follows: ‘Contingent liabilities must . . be something different from future liabilities which are binding on the company, but are not payable until a future date. I should define a contingency as an event which may or may not occur and a contingent liability as a liability which depends for its existence upon an event which may or may not happen.’
A contingent obligation must be distinguished from a mere spes obligationis, or the hope or expectancy of an obligation yet to emerge. Lord Reid said: ‘. . if I see a watch in a shop window and think of buying it, I am not under a contingent liability to pay the price: similarly, if an Act says I must pay tax if I trade and make a profit, I am not before I begin trading under a contingent liability to pay tax in the event of my starting trading. In neither case have I committed myself to anything. But if I agree by contract to accept allowances on the footing that I will pay a sum if I later sell something above a certain price I have committed myself and I come under a contingent liability to pay in that event.’

Judges:

Lord Guest, Lord Reid

Citations:

[1963] AC 235

Jurisdiction:

Scotland

Cited by:

Cited – Grays Timber Products Ltd v Revenue and Customs SC 3-Feb-2010
An assessment to income tax had been raised after the employee resold shares in the company issued through the employees’ share scheme at a price which the Revenue said was above the share value. The company appealed against a finding that tax was . .
Helpful – In re SBA Properties Ltd ChD 1967
A court action had been raised in the name of a company without authority, giving rise to a possible liability in expenses to the defendants. One of the defendants claimed that, in the event that the company’s liquidator ratified the action, that . .
Applied – In re T and N Ltd and Others (No 3) ChD 16-Jun-2006
The court considered the application of ‘the bankruptcy template of section 382 to the rules governing the winding up of companies’.
Held: The phrase ‘obligation incurred’ in Rule 13.2(1)(b) was inapt to describe a common law duty of care in . .
Cited – In re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .
Lists of cited by and citing cases may be incomplete.

Taxes Management

Updated: 11 June 2022; Ref: scu.396610

Duke of Argyll v Duchess of Argyll: HL 1962

The pursuer sought to protect the contents of her diary from publication using the law of confidence.
Held: Lord Reid said: ‘the effect, and indeed the purpose, of the law of confidentiality is to prevent the court from ascertaining the truth so far as regards those matters which the law holds to be confidential.’

Judges:

Lord Reid, Lord Guest

Citations:

1962 SC (HL) 88

Jurisdiction:

Scotland

Cited by:

Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
See Also – Duchess of Argyll v Duke of Argyll ChD 1967
An interlocutory injunction was granted to protect against the revelation of marital confidences, and the newspaper to which the Duke had communicated such information about the Duchess was restrained from publishing it. The concept of . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 11 June 2022; Ref: scu.219354

Inland Revenue Commissioners v Luke: HL 1963

The House applied the literal approach to statutory interpretation. However there may be cases where ‘to achieve the obvious intention and produce a reasonable result [the court] must do some violence to the words.’
Lord Reid said: ‘How, then, are we to resolve the difficulty? To apply the words literally is to defeat the obvious intention of the legislation and to produce a wholly unreasonable result. To achieve the obvious intention and produce a reasonable result we must do some violence to the words. This is not a new problem, though our standard of drafting is such that it rarely emerges. The general principle is well settled. It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result, that the words of the enactment must prevail.’

Judges:

Lord Reid

Citations:

1963 SC (HL) 65, [1963] AC 557

Jurisdiction:

Scotland

Cited by:

Cited – Harding v Revenue and Customs CA 23-Oct-2008
Lapsed Currency conversion option lost status
The taxpayer appealed his assessment to Capital Gains Tax on his redemption of loan notes arising following the sale of his computer company. He said that they were qualifying corporate bonds. The question was whether a security in which a currency . .
Lists of cited by and citing cases may be incomplete.

Taxes Management

Updated: 11 June 2022; Ref: scu.200611

Mcclelland v Stuart Building Services, A Partnership, Stuart, and Stuart, the Partners Thereof As Such Partners and As Individuals: OHCS 6 Aug 2004

Judges:

Lord President

Citations:

[2004] ScotCS 200

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Appeal from – David McClelland v Stuart Building Services OHCS 28-Jan-2003
. .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 11 June 2022; Ref: scu.200180

Holland v Her Majesty’s Advocate: IHCS 16 Jun 2004

Judges:

Lord Justice Clerk And Lord Hamilton And Lord Penrose

Citations:

[2004] ScotHC 39

Links:

ScotC, Bailii

Citing:

Appeal from – Holland v Her Majesty’s Advocate HCJ 21-Aug-2003
The defendant appealed his conviction after a dock identification.
Held: Scotland is unique among the jurisdictions in the United Kingdom in the significance that it attaches to dock identification. However, Scottish law was not alone in this. . .

Cited by:

Appeal from – Holland v Her Majesty’s Advocate (Devolution) PC 11-May-2005
The defendant appealed his convictions for robbery. He had been subject to a dock identification, and he complained that the prosecution had failed in its duties of disclosure.
Held: The combination of several failings meant that the defendant . .
Lists of cited by and citing cases may be incomplete.

Scotland, Crime

Updated: 11 June 2022; Ref: scu.198824

Cairns v The Chief Constable, Strathclyde Police: ScSf 2 Apr 2004

Judges:

Sheriff Principal E.F. Bowen

Citations:

[2004] ScotSC 25

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

See Also – Cairns v The Chief Constable Strathclyde Police OHCS 22-Oct-2004
Motion to ordain the appellant to find caution in the sum of andpound;15,000 in respect of the expenses of the present appeal. The appellant is an undischarged bankrupt and it is not in dispute that the normal rule is that a pursuer who is an . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 11 June 2022; Ref: scu.197701

O’Brien’s Curator Bonis v British Steel Plc: 1991

The court can take judicial notice of the Ogden Tables.

Citations:

1991 SC 315

Jurisdiction:

Scotland

Cited by:

Cited – Longden v British Coal Corporation HL 13-Mar-1997
The plaintiff was injured whilst at work in one of the defendant’s collieries. The House considered the deductibility from damages awarded for personal injury of a collateral benefit.
Held: The issue of deductibility where the claim is for . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 10 June 2022; Ref: scu.237503

McDougall and Another v Glasgow City Council: EAT 26 Mar 2004

Appeal by two appellants in respect of a finding by the Employment Tribunal sitting in Glasgow, that during the time they worked as gymnastic coaches for Glasgow City Council, they were neither employees nor workers.

Judges:

The Honourable Lord Johnston

Citations:

[2004] UKEAT 0073 – 03 – 2603

Links:

Bailii, EAT

Employment, Scotland

Updated: 10 June 2022; Ref: scu.195929

Mcfarlane v Ferguson Shipbuilders Limited: OHCS 16 Mar 2004

Judges:

Lady Smith

Citations:

[2004] ScotCS 68

Links:

Bailii, ScotC

Cited by:

Cited – Robb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
Lists of cited by and citing cases may be incomplete.

Scotland, Health and Safety

Updated: 10 June 2022; Ref: scu.195828

McKearney v Her Majesty’s Advocate: HCJ 16 Jan 2004

The appellant had been convicted of rape. The court was now asked: ‘(1) whether the trial judge failed properly to direct the jury on the question of mens rea; (2) whether he erred in directing them to disregard the question of honest belief; (3) whether distress de recenti on the part of the complainer was evidence of mens rea on the part of the appellant, and (4) whether the jury were entitled to hold that the complainer remained frightened of the appellant when he had intercourse with her.’

Judges:

Lord Justice Clerk And Lord Kirkwood And Lord Mccluskey

Citations:

[2004] ScotHC HCJAC – 69, 2004 SCCR 251, 2004 JC 87, 2004 GWD 15-332, 2004 SLT 739

Links:

ScotC, Bailii

Scotland, Crime

Updated: 10 June 2022; Ref: scu.195840