Category: Scotland

Hood v Anchor Line (Henderson Brothers) Ltd: SCS 31 Oct 1917

Court of Session Inner House Second Division – Carriage of Passengers – Conditions on Ticket Limiting Liability of Carrier – Notice of Conditions – A passenger on a trans-Atlantic steamer, who brought an action against the owners thereof for damages for injuries sustained by him during the voyage, averred that his attention had not been drawn to conditions on the ticket limiting the liability of the shipping company to pounds 10 in the event of an accident occurring. Held that in the circumstances the shipowners had given reasonable notice of the conditions to the passenger.

Judges:

Lord Anderson, Ordinary

Citations:

[1917] SLR 48

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Hood v Anchor Line (Henderson Brothers) Ltd SCS 25-Feb-1916
Court of Session Inner House Second Division ‘Notice. – This ticket is issued to and accepted by the passenger subject to the following conditions’
In an action at the instance of a passenger on an Atlantic steamer against the shipping company . .

Cited by:

Appeal from – Hood v Anchor Line (Henderson Bros) Ltd HL 1-Jul-1918
An English court may exercise its jurisdiction in personam over the liquidator to enforce the contract between the chargee and the company, and may require the liquidator to pay the proceeds to the chargee, The Scottish courts did not recognise the . .
Lists of cited by and citing cases may be incomplete.

Contract, Personal Injury

Updated: 26 November 2022; Ref: scu.616831

Hood v Anchor Line (Henderson Brothers) Ltd: SCS 25 Feb 1916

Court of Session Inner House Second Division ‘Notice. – This ticket is issued to and accepted by the passenger subject to the following conditions’
In an action at the instance of a passenger on an Atlantic steamer against the shipping company for damages for injuries sustained by him on the voyage the pursuer averred that his attention had not been drawn to conditions on the ticket limiting the liability of the shipowner to pounds 10 in the case of accident, and that he was not aware of the same. The Court allowed a proof before answer as to the terms and conditions of the contract of carriage between the parties.
Neither the shipowner nor the passage broker or agent is responsible for loss of or injury to the passenger, or his luggage or personal effects, or delay on the voyage, arising from steam, latent defects in the steamer, her machinery, gear, or fittings, or from the act of God, king’s enemies, perils of the sea or rivers, restraints of princes, rulers and people’s barratry or negligence in navigation of the steamer, or of any other vessel.
Neither the shipowner nor the passage broker or agent is in any case liable for loss of or injury to the passenger or his luggage, or delay in delivery of luggage or personal effects of the passenger, beyond the amount of pounds 10 in the case of each first-class passage, or pounds 5 in the case of each second-class or steerage passage, unless the value of the passenger’s luggage in excess of that sum be declared at or before the issue of this contract ticket, and freight at current rates for every kind of property (except pictures, statuary, and valuables of any description, upon which one per cent. will be charged) is paid.

Judges:

Lord Anderson, Ordinary

Citations:

[1916] SLR 429

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

See Also – Hood v Anchor Line (Henderson Brothers) Ltd SCS 31-Oct-1917
Court of Session Inner House Second Division – Carriage of Passengers – Conditions on Ticket Limiting Liability of Carrier – Notice of Conditions – A passenger on a trans-Atlantic steamer, who brought an action against the owners thereof for damages . .
Cited – Hood v Anchor Line (Henderson Bros) Ltd HL 1-Jul-1918
An English court may exercise its jurisdiction in personam over the liquidator to enforce the contract between the chargee and the company, and may require the liquidator to pay the proceeds to the chargee, The Scottish courts did not recognise the . .
Lists of cited by and citing cases may be incomplete.

Contract, Personal Injury

Updated: 26 November 2022; Ref: scu.618272

Cleghorn v Medwin Investments Ltd and Another: SCS 1 Jul 2016

‘These reclaiming motions arise out of the grant by a discharged bankrupt to the reclaimers of a number of dispositions and standard securities of property forming part of his sequestrated estate. ‘

Citations:

[2016] ScotCS CSIH – 49, 2016 GWD 22-405, 2016 SLT 923, 2016 SC 824

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 26 November 2022; Ref: scu.566803

M’Intosh and Others (Stevenson’s Trustees), Petitioners: SCS 25 Mar 1878

Certain subjects, held by testamentary trustees for behoof of A in liferent allenarly and of his children in fee, had been acquired by the Glasgow Improvement Trustees in virtue of the powers conferred upon them by their Act of Parliament, and the sum consigned by the said Improvement Trustees had been invested in a heritable security under the direction of the Court of Session, as provided by the 68th section of the Lands Clauses Act (8 and 9 Vict. cap. 19), the Improvement Trustees being found liable in the expenses of the application to the Court. The testamentary trustees eight years thereafter applied to the Court for authority to discharge the security held by them, the debtor being desirous of paying up the same, and craved the Court to find the Improvement Trustees liable in the expenses of discharging the security of consigning the money in bank, and of this application to the Court.- Held, under the 79th section of the Lands Clauses Act, that the Improvement Trustees were not liable for any expenses attendant on a change of security until the applicants were prepared to invest the fund permanently in the purchase of other lands.

Citations:

[1878] SLR 15 – 471

Links:

Bailii

Jurisdiction:

Scotland

Scotland

Updated: 26 November 2022; Ref: scu.577373

Hood v Anchor Line (Henderson Bros) Ltd: HL 1 Jul 1918

An English court may exercise its jurisdiction in personam over the liquidator to enforce the contract between the chargee and the company, and may require the liquidator to pay the proceeds to the chargee, The Scottish courts did not recognise the validity of a floating charge on a company’s assets.
Whether term brought to notice of party.

Judges:

Lord Dunedin

Citations:

[1918] AC 837, [1918] UKHL 2, (1918) 2 SLT 118, 1918 SC (HL) 143

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Hood v Anchor Line (Henderson Brothers) Ltd SCS 25-Feb-1916
Court of Session Inner House Second Division ‘Notice. – This ticket is issued to and accepted by the passenger subject to the following conditions’
In an action at the instance of a passenger on an Atlantic steamer against the shipping company . .
Appeal from – Hood v Anchor Line (Henderson Brothers) Ltd SCS 31-Oct-1917
Court of Session Inner House Second Division – Carriage of Passengers – Conditions on Ticket Limiting Liability of Carrier – Notice of Conditions – A passenger on a trans-Atlantic steamer, who brought an action against the owners thereof for damages . .

Cited by:

Cited – TICC Limited v Cosco (UK) Limited CA 5-Dec-2001
The claimants sought to have incorporated by notice into a contract of bill of lading, the terms of a freight surcharge. Notice had been given to the shipping agents in Hong Kong only. The shippers claimed the surcharge under the 1992 Act, saying . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – White v Blackmore CA 15-Jun-1972
The plaintiff attended a jalopy car race and was injured. It was a condition of his entry that he agreed that motor racing was dangerous and that he would not hold the organisers or others responsible if injured. He was injured when a safety rope, . .
Lists of cited by and citing cases may be incomplete.

Contract, Company, Negligence, Personal Injury

Updated: 26 November 2022; Ref: scu.279677

Connell v Ferguson: 1861

Citations:

(1861) 23 D 683

Jurisdiction:

Scotland

Cited by:

Cited – The Free Church of Scotland v The General Assembly of the Free Church of Scotland SCS 24-Mar-2005
Each group claimed to by the true Free Church of Scotland. The dispute had a very long history. One claimed that the other had abandoned a fundamental principle of the faith, the right of ‘continued protest’.
Held: It was necessary to examine . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 26 November 2022; Ref: scu.223944

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 stated and often restated that if the wrong is established the wrongdoer must take the victim as he finds him. That, however, is only true . . on the condition that the wrong has been established or admitted. The question of liability is anterior to the question of the measure of the consequences which go with the liability.’
Lord Russell of Killowen: ‘In considering whether a person owes to another a duty a breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. This consideration may play a double role. It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, ie, to the question of compensation not to culpability, but it is also relevant in testing the existence of a duty as the foundation of the alleged negligence, ie, to the question of culpability not to compensation.’

Judges:

Lord MacMillan, Lord Wright, Lord Russell of Killowen

Citations:

[1943] AC 92, [1943] SC (HL) 78, 1943 SLT 105, [1942] UKHL 5

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Disapproved – Owens v Liverpool Corporation CA 1938
Four family mourners at a funeral appealed against rejection of their claims for damages for distress caused by witnessing a collision between a negligently driven tramcar and the hearse.The incident had involved no apprehension, or sight, or sound . .

Cited by:

Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
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 – Giullietta Galli-Atkinson v Seghal CA 21-Mar-2003
The claimant’s daughter was fatally injured in car accident, dying shortly after. The mother came upon the scene, witnessed a police cordon at the scene of the accident and was told of her death. She later saw the injuries at the mortuary and . .
Cited – King v Phillips CA 1952
Denning LJ said: ‘there can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock.’ A person ‘who suffers shock on being told of an accident to a loved one cannot recover damages from the . .
Cited – Salter v UB Frozen Chilled Foods OHCS 25-Jul-2003
The pursuer was involved in an accident at work, where his co-worker died. He suffered only psychiatric injury.
Held: Being directly involved, the pursuer was a primary victim, and accordingly not subject to the limits on claiming for . .
Cited – Smith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd HL 1987
The defendant acquired a semi derelict cinema with a view to later development of the site. A fire started by others spread to the pursuer’s adjoining property.
Held: The defendants were not liable in negligence. The intervention of a third . .
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.
Cited – 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 . .
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 . .
Cited – Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) PC 18-Jan-1961
Foreseeability Standard to Establish Negligence
Complaint was made that oil had been discharged into Sydney Harbour causing damage. The court differentiated damage by fire from other types of physical damage to property for the purposes of liability in tort, saying ‘We have come back to the plain . .
Cited – McKillen v Barclay Curle and Co Ltd 1967
The Lord Ordinary had awarded the pursuer damages for tuberculosis, on the basis that in the accident he had fractured a rib and this had reactivated his pre-existing tuberculosis.
Held: The pursuer had failed to prove the causal connexion . .
Cited – Islington London Borough Council v University College London Hospital NHS Trust CA 16-Jun-2005
The local authority sought repayment from a negligent hospital of the cost of services it had had to provide to an injured patient. They said that the hospital had failed to advise the patient to resume taking warfarin when her operation was . .
Cited – Corr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police CA 31-May-1991
The defendant policed a football match at which many people died. The plaintiffs, being relatives and friends of the deceased, inter alia suffered nervous shock having seen the events either from within the ground, or from outside or at home on . .
Rejected – McLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .
Cited – Liverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
Cited – Wooldridge v Sumner and Another CA 4-Jun-1962
The plaintiff photographer was injured when attending a show jumping competition at the White City Stadium. A horse caught him as it passed.
Held: The defendant’s appeal against the finding of negligence succeeded: ‘a competitor or player . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages, Negligence

Updated: 25 November 2022; Ref: scu.180104

Richardson v Quercus Limited: IHCS 24 Dec 1998

The pursuer owned a flat on the second and top floors of a building damaged by renovation works carried out by the defenders to the basement and ground floor of the same building. He relied on a letter by the defenders’ loss adjusters confirming that they had no objection to the pursuer instructing the necessary remedial works to his property but which stated that it was written ‘without prejudice to liability’.
Held: The letter with previous correspondence, amounted to a relevant acknowledgment within the section of the subsistence of an obligation to make reparation which would otherwise have been extinguished by the five year negative prescription. That subsection provides that in order to constitute a relevant acknowledgement there must be an unequivocal written admission clearly acknowledging that the obligation still subsists.

Judges:

Lord Abernethy and Lord Johnston and Lord Prosser

Citations:

[1998] ScotCS 112, 1999 SC 278

Links:

Bailii, ScotC

Statutes:

Prescription and Limitation (Scotland) Act 1973 10(1)

Jurisdiction:

Scotland

Citing:

Aproved – Daks Simpson Group plc v Kuiper 1994
The creditor sought summary judgment for an account for commissions earned. In a ‘without prejudice’ letter the defendant’s director said that he was prepared to accept that he had received such commissions in stated amounts.
Held: Lord . .

Cited by:

Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 25 November 2022; Ref: scu.169718

Alexander Speirs, Andrew Blackburn, and Andrew Syme, James Dunlop’S Trustees v Thomas and Wm Dunlop and Co, Trustees for The Creditors of John Carlyle and Co: HL 9 Mar 1777

Ranking – Society – Company and Individual Estate – Principles of Ranking.- (1) Held that a company are entitled to rank on an individual partner’s separate estate, pari passu with the creditors of that separate estate, for the whole amount of debts owing by the company after deducting any dividends that may have been paid to the company creditors. But, (2) Held in the House of Lords, that where, after a dividend on an estate was declared, and most of the creditors paid, a new claim was lodged for the first time on the estate, that such claim will not be allowed to disturb or affect the dividend paid before any notice was received of such claim.

Citations:

[1777] UKHL 2 – Paton – 437, (1777) 2 Paton 437

Links:

Bailii

Jurisdiction:

Scotland

Company, Insolvency

Updated: 25 November 2022; Ref: scu.562001

The Inter-Vivos Trust of The Late William Strathdee Gordon v Campbell Riddle Breeze Paterson Llp: SCS 25 Mar 2015

(Outer House) The trustees said they had suffered losses from the negligence of the defendant solicitors in serving incorrect notices to quit under leases. The solicitors said that the claim was time barred.
Held: After hearing evidence in a preliminary proof on prescription at which the parties had agreed that the averments of breach of contract and loss were to be treated as proven, Lord Jones upheld the plea of prescription. He rejected the trustees’ argument that the prescriptive period did not begin until the Scottish Land Court issued its decision (ie 24 July 2008), which, according to the trustees, was the date on which they first knew that they had suffered loss. He held that the prescriptive period began when the trustees knowingly became liable for legal fees and outlays in pursuit of vacant possession of the fields. As it was agreed that the trustees had incurred material expense in relation to the Scottish Land Court application by 17 February 2006, the five-year prescriptive period had run its course before they commenced the legal proceedings against the respondents (on 17 May 2012). Lord Jones therefore absolved the respondents from the trustees’ claims.

Judges:

Lord Jones

Citations:

[2015] ScotCS CSOH – 31

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

At Outer House – Gordon and Others v Campbell Riddell Breeze Paterson Llp SCS 8-Mar-2016
(Extra Division, Inner House) The claimant trustees appealed from rejection of their claims of professional negligence against the defendant solicitors as out of time. The parties disputed whether the limitation period ran from the service of . .
At Outer House – Gordon and Others (Trustees of The Inter Vivos Trust) v Campbell Riddell Breeze Paterson Llp SC 15-Nov-2017
The claimants appealed from rejection of their claims for losses saying that such losses had been caused by their solicitors in failing properly to identify the tenant and the relevant lease when issuing notices to quit. The solicitors argued that . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 25 November 2022; Ref: scu.546782

The Scotch Whisky Association and Others v The Lord Advocate and Another: SCS 21 Oct 2016

The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming motion, it is normal for the court to proceed on the basis of the same documents as were provided to the Lord Ordinary, though it can look at new material if it is satisfied that it is in the interests of justice to do so.
It could reasonably be concluded, on an objective examination of the material before the Court, that the proposed system of minimum pricing was proportionate in the sense required by European Union law and now explained by the Court of Justice.

Judges:

Lord Carloway P

Citations:

[2016] ScotCS CSIH – 77, [2017] 1 CMLR 41, 2016 SLT 114, 2017 SC 465

Links:

Bailii

Statutes:

The Alcohol (Minimum Price per Unit) (Scotland) Order 2013, Alcohol (Minimum Pricing) (Scotland) Act 2012

Jurisdiction:

Scotland

Citing:

See also – Scotch Whisky Association and Others v The Lord Advocate and Another SCS 30-Apr-2014
(Extra Division, Inner House, Court of Session) Reclaiming motion is brought against the Lord Ordinary’s decision rejecting the petitioners’ challenge to the provisions of the 2012 Act. Reference to ECJ . .
See also – The Scotch Whisky Association and Others, Re Judicial Review SCS 26-Sep-2012
Outer House – application by Alcohol Focus Scotland for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine . .
See also – The Scotch Whisky Association and Others, Re Judicial Review SCS 3-May-2013
(Outer House, Court of Session) The petitioners challenged the legality of an enactment of the Scottish Parliament – the Act. They also challenged the legality of the Scottish Ministers’ decision that they would make an Order setting the minimum . .
See also – Scotch Whisky Association and Others for Judicial Review SCS 11-Jul-2014
Extra Division, Inner House – Further application for leave to intervene. . .
At ECJ – Scotch Whisky Association And Others v Lord Advocate, Advocate General for Scotland ECJ 23-Dec-2015
ECJ (Judgment) Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – Free movement of goods – Article 34 TFEU – Quantitative . .

Cited by:

Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
At IHCS – Scotch Whisky Association and Others v The Lord Advocate and Another SC 15-Nov-2017
The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, European

Updated: 25 November 2022; Ref: scu.578093

Gordon and Others v Campbell Riddell Breeze Paterson Llp: SCS 8 Mar 2016

(Extra Division, Inner House) The claimant trustees appealed from rejection of their claims of professional negligence against the defendant solicitors as out of time. The parties disputed whether the limitation period ran from the service of defective notices on the trustees’ tenants.
Held: The appeal was refused. Section 11(3) of the 1973 Act postponed the start of the prescriptive period only when the damage was latent by requiring that the creditor should have actual or constructive knowledge of the occurrence of damage or expenditure, which was viewed as an objective fact. Accordingly, the prescriptive period ran from the time the trustees incurred liability for legal fees notwithstanding that they did not then know that their application to the Scottish Land Court would fail.

Judges:

Lady Paton

Citations:

[2016] ScotCS CSIH – 16, 2016 SC 548, 2016 GWD 9-178, 2016 SLT 580

Links:

Bailii

Statutes:

Prescription and Limitation (Scotland) Act 1973

Jurisdiction:

Scotland

Citing:

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: . .
At Outer House – The Inter-Vivos Trust of The Late William Strathdee Gordon v Campbell Riddle Breeze Paterson Llp SCS 25-Mar-2015
(Outer House) The trustees said they had suffered losses from the negligence of the defendant solicitors in serving incorrect notices to quit under leases. The solicitors said that the claim was time barred.
Held: After hearing evidence in a . .

Cited by:

Appeal from – Gordon and Others (Trustees of The Inter Vivos Trust) v Campbell Riddell Breeze Paterson Llp SC 15-Nov-2017
The claimants appealed from rejection of their claims for losses saying that such losses had been caused by their solicitors in failing properly to identify the tenant and the relevant lease when issuing notices to quit. The solicitors argued that . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Professional Negligence

Updated: 25 November 2022; Ref: scu.562577

Scotch Whisky Association and Others for Judicial Review: SCS 11 Jul 2014

Extra Division, Inner House – Further application for leave to intervene.

Judges:

Lord Eassie, Lord Menzies, Lord Brodie

Citations:

[2014] ScotCS CSIH – 64

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 26-Sep-2012
Outer House – application by Alcohol Focus Scotland for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine . .
See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 3-May-2013
(Outer House, Court of Session) The petitioners challenged the legality of an enactment of the Scottish Parliament – the Act. They also challenged the legality of the Scottish Ministers’ decision that they would make an Order setting the minimum . .
See Also – Scotch Whisky Association and Others v The Lord Advocate and Another SCS 30-Apr-2014
(Extra Division, Inner House, Court of Session) Reclaiming motion is brought against the Lord Ordinary’s decision rejecting the petitioners’ challenge to the provisions of the 2012 Act. Reference to ECJ . .

Cited by:

See Also – Scotch Whisky Association And Others v Lord Advocate, Advocate General for Scotland ECJ 23-Dec-2015
ECJ (Judgment) Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – Free movement of goods – Article 34 TFEU – Quantitative . .
See also – The Scotch Whisky Association and Others v The Lord Advocate and Another SCS 21-Oct-2016
The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming . .
See Also – Scotch Whisky Association and Others v The Lord Advocate and Another SC 15-Nov-2017
The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, European

Updated: 25 November 2022; Ref: scu.534170

Scotch Whisky Association and Others v The Lord Advocate and Another: SCS 30 Apr 2014

(Extra Division, Inner House, Court of Session) Reclaiming motion is brought against the Lord Ordinary’s decision rejecting the petitioners’ challenge to the provisions of the 2012 Act. Reference to ECJ

Citations:

[2014] ScotCS CSIH – 38

Links:

Bailii

Statutes:

Alcohol (Minimum Pricing) (Scotland) Act 2012

Jurisdiction:

Scotland

Citing:

See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 26-Sep-2012
Outer House – application by Alcohol Focus Scotland for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine . .
See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 3-May-2013
(Outer House, Court of Session) The petitioners challenged the legality of an enactment of the Scottish Parliament – the Act. They also challenged the legality of the Scottish Ministers’ decision that they would make an Order setting the minimum . .

Cited by:

See Also – Scotch Whisky Association And Others v Lord Advocate, Advocate General for Scotland ECJ 23-Dec-2015
ECJ (Judgment) Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – Free movement of goods – Article 34 TFEU – Quantitative . .
See also – The Scotch Whisky Association and Others v The Lord Advocate and Another SCS 21-Oct-2016
The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming . .
See Also – Scotch Whisky Association and Others for Judicial Review SCS 11-Jul-2014
Extra Division, Inner House – Further application for leave to intervene. . .
See Also – Scotch Whisky Association and Others v The Lord Advocate and Another SC 15-Nov-2017
The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 25 November 2022; Ref: scu.525458

Harvie v Robertson: 1903

The pursuer sought an interdict against the defender from carrying on the operation of lime-burning on his land: ‘the question whether a proprietor complaining of such injury has a title and interest to interfere does not depend exclusively upon present injury to his land. He is entitled to take into account not only the actual inconvenience and discomfort caused to people living on the ground by noxious fumes, but also the injury to the value of the property and the prospect of using it for advantageous purposes, other than those to which it is actually applied at the moment.’

Judges:

Lord Kinnear

Citations:

(1903) 5 F 338

Jurisdiction:

England and Wales

Cited by:

Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Lists of cited by and citing cases may be incomplete.

Scotland, Nuisance

Updated: 25 November 2022; Ref: scu.195607

Eastern Marine Services (and Supplies) Ltd v Dickson Motors Ltd: 1981

The pursuer agreed to purchase a second-hand car from a car dealer on the basis of an assurance that the mileage shown on the odometer was genuine. It was alleged that this assurance was false and that the pursuers were entitled to damages. The action was dismissed on the ground, among others, that in an action founded on misrepresentations inducing contract the representations had to be fraudulent and that the pursuers’ pleadings contained no such averment. A claim for damages will not follow an innocent misrepresentation.

Citations:

1981 SC 355

Jurisdiction:

England and Wales

Cited by:

Cited – Stewart v Perth and Kinross Council HL 1-Apr-2004
The claimant challenged refusal of a licence to sell second hand cars, saying that the licensing requirements imposed were outwith the Act under which they had been made. The licensing scheme imposed additional requirements.
Held: Though a . .
Lists of cited by and citing cases may be incomplete.

Scotland, Torts – Other

Updated: 25 November 2022; Ref: scu.195468

Young v Leith: IHCS 1844

Unrecorded instruments of sasine were nullities, but the granter of the sasine was not entitled to plead the nullity: ‘. . I am very glad that the result is such as my noble friend proposes, and that now, on the authority of this House, it will be clearly taken as the law of Scotland, that unrecorded sasines are a nullity.’

Judges:

Lord Campbell

Citations:

(1848) 2 Ross’s LC 81, (1844) 6 D 370

Jurisdiction:

Scotland

Citing:

Appealed to – Young v Leith HL 1847
The only way in which a disponee can be sure of preventing a third party, such as an adjudging creditor, from acquiring a real right to the lands which will prevail against his right is by registration. ‘The proper object and effect of every valid . .

Cited by:

Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Appeal from – Young v Leith HL 1847
The only way in which a disponee can be sure of preventing a third party, such as an adjudging creditor, from acquiring a real right to the lands which will prevail against his right is by registration. ‘The proper object and effect of every valid . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 25 November 2022; Ref: scu.194217

Cumming v Mackie: 1973

The general law of Scotland as to sponsio ludicra is that an action for the recovery of a gaming debt is not maintainable against the party in the gaming contract with whom the bet or wager is made, and it makes no difference to the application of that rule that there does not exist any dispute as to who is the winner of the bet or wager, or as to the amount of his winnings.

Citations:

1973 SC 278

Jurisdiction:

Scotland

Cited by:

Cited – Robertson v Anderson IHCS 5-Dec-2002
The parties had agreed to share any winnings from their Bingo activities. One sought to reject the contract as an unenforceable gaming contract.
Held: The contention was rejected. It had been suggested that there had been no intention to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 25 November 2022; Ref: scu.181867

Reid v Mini-Cabs: SCS 1966

The general aim of regulations imposed by local authorities on traders was to ensure the good conduct and efficiency of the various trades and activities for the benefit and protection of the citizens in the burgh.

Judges:

Lord Avonside

Citations:

1966 SC 137

Jurisdiction:

Scotland

Cited by:

Cited – Stewart v Perth and Kinross Council HL 1-Apr-2004
The claimant challenged refusal of a licence to sell second hand cars, saying that the licensing requirements imposed were outwith the Act under which they had been made. The licensing scheme imposed additional requirements.
Held: Though a . .
Lists of cited by and citing cases may be incomplete.

Licensing

Updated: 25 November 2022; Ref: scu.195474

Robertson v Balfour: 1938

The rule against enforcing a gaming contract is so clear that the Court will not take cognizance of a supervening contract which is subsidiary to, and flows from, the original gaming contract. The court distinguished these contracts from, this case where the contract was not purely collateral or incidental to the gaming contract.

Judges:

Aitchison

Citations:

1938 SC 207

Jurisdiction:

Scotland

Cited by:

Cited – Robertson v Anderson IHCS 5-Dec-2002
The parties had agreed to share any winnings from their Bingo activities. One sought to reject the contract as an unenforceable gaming contract.
Held: The contention was rejected. It had been suggested that there had been no intention to . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 25 November 2022; Ref: scu.181868

Anderson v Hogg: IHCS 14 Dec 2001

The appellant sought an order under the section for repayment to the company of sums paid to a director by way of extra redundancy payments. He said the payments were improper. His application had been refused, in part because he had not chosen the more direct method of asking the company to seek repayment directly, and also because the applicant had not shown the necessary element of unfairness, over and above unlawfulness.
Held: The existence of the alternate and more straightforward method of recouping the payment did not invalidate the request for this order. It was clear that the action was not unavailable, and that the payment had not been approved by the company as a whole. Nevertheless the jurisdiction should be exercised only on established principles of equity. Here the order should be granted.

Judges:

Lord Coulsfield, Lord Hamilton and Lord Prosser

Citations:

Times 22-Jan-2002

Links:

ScotC

Statutes:

Companies Act 1985 459

Jurisdiction:

Scotland

Citing:

Cited – Lowe v Fahey 1996
Where there has been material misconduct, even in the shape of a single act, the primary remedy is under section 459, not by a shareholder’s derivative action. . .
Cited – O’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992) HL 20-May-1999
The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the . .
Approved – Kaneria, Kaneria v Patel, Kaneria, Kaneria, Kaneria, Kaneria, Guidezone Ltd Sub Nom In The Matter Of Guidezone Ltd (2000) 13-Jul-2000
cw The petitioners’ case was that they had a legitimate expectation that the company’s business would be sold, either by virtue of an agreement to that effect or at their request, was not made out on the facts. . .

Cited by:

Cited – Clark v Cutland CA 18-Jun-2003
One director discovered that his co-director had withdrawn substantial sums from the company. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 25 November 2022; Ref: scu.167419

Dryburgh v Gordon: 1896

A search against land which produces an adverse entry ex facie of the record, even if it relates to an inhibition which was laid on after the missives were entered into, is not a clear search.

Citations:

(1896) 24 R 1

Jurisdiction:

Scotland

Cited by:

Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 25 November 2022; Ref: scu.194224

Leonard v Strathclyde Buses Ltd: 1998

To receive a compensatory award, a claimant must provide proof of loss. Referring to Norton Tool, Lord Blofeld said: ‘The approach . . has, as we understand the position, governed the attitude of tribunals to compensation ever since. It is, in our view, inconsistent with that approach to introduce principles of foreseeability or remoteness in the technical sense in which those concepts apply in other legal contexts. What an industrial tribunal is required to do, in our view, is to apply the statutory test as a whole and assess what is just and equitable having regard to the loss so far as attributable to the employer.’

Judges:

Lord Blofeld

Citations:

[1998] SLT 734, [1998] IRLR 693, 1999 SC 57

Jurisdiction:

Scotland

Citing:

Cited – Norton Tool Co Ltd v Tewson NIRC 30-Oct-1972
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages.
Held: The common law rules and authorities on wrongful . .

Cited by:

Cited – Flexible Ducting Ltd v Stirling EAT 25-Sep-2001
The issue was the valuation of share options no longer exercisable by the claimant after dismissal. Any assessment involved unwelcome speculation, but the tribunal had recognised the need to take a broad approach. No error of law was shown in the ET . .
Cited – Jones v Lingfield Leisure Plc CA 18-Jun-1998
The claimant had been unfairly dismissed but in addition to this employment she had also lost her earnings from a private practice as an aerobics teacher at the same facility where she was employed. She had been awarded damages for the employment . .
Cited – Dignity Funerals Limited v Bruce OHCS 14-Oct-2004
The employee was found to have been unfairly dismissed. The employer appealed the compensatory award which was based on his depressive illness. They said that the illness predated the dismissal.
Held: The EAT’s decision was set aside. In . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 25 November 2022; Ref: scu.180921

Elliott (No 2) v HM Advocate: 1997

When passing a mandatory sentence of life imprisonment a trial judge was required by section 218 of the 1975 Act to specify the date of the commencement of the sentence The question whether a mandatory life sentence should be backdated was not an academic one, because the date at which the sentence was held to have commenced might affect the date at which the Preliminary Review Committee could first consider the case of the prisoner.

Judges:

Lord Justice Clerk Ross

Citations:

1997 SLT 1229

Statutes:

Criminal Procedure (Scotland) Act 1975

Jurisdiction:

Scotland

Cited by:

Cited – Flynn, Meek, Nicol and McMurray v Her Majesty’s Advocate PC 18-Mar-2004
PC (High Court of Justiciary) The applicants had each been convicted of murder, and complained that the transitional provisions for determining how long should be served under the life sentences infringed their . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 25 November 2022; Ref: scu.194652

Swankie v H M Advocate: 1991

Enquiries into a jury’s deliberations might be allowable as to extraneous events which might have affected them.

Citations:

(1999) SCCR 1

Jurisdiction:

Scotland

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

Criminal Practice

Updated: 25 November 2022; Ref: scu.192255

Wills Trustees v Cairngorm Canoeing and Sailing School: HL 1976

The public right of navigation (PRN) is a right to public use of the river. The river may be used by the public for purposes of exercise and recreation as well as transport and commerce. At common law PRN cannot be lost by lack of use over time. ‘A public right of way on highways is established by use over the land of a proprietor.’ The existence of the right does not depend upon there being two termini for any journey. The right may embrace the passage of articles without human accompaniment, for instance, the floating of logs on the current either singly or in rafts.

Judges:

Lord Wilberforce, Lord Salmon, Lord Fraser of Tullybelton

Citations:

[1976] SC (HL) 30

Jurisdiction:

Scotland

Cited by:

Cited – Rowland v The Environment Agency CA 19-Dec-2003
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Lists of cited by and citing cases may be incomplete.

Utilities, Transport, Land

Updated: 25 November 2022; Ref: scu.190125

Nicol v Magistrates of Aberdeen: 1870

A very strong case is required before a court could intefere with the exercise of a statutory discretion given to a local authority in a matter affecting the community.

Judges:

Lord President Inglis

Citations:

(1870) 9 M 306

Jurisdiction:

Scotland

Cited by:

Cited – Stewart v Perth and Kinross Council HL 1-Apr-2004
The claimant challenged refusal of a licence to sell second hand cars, saying that the licensing requirements imposed were outwith the Act under which they had been made. The licensing scheme imposed additional requirements.
Held: Though a . .
Lists of cited by and citing cases may be incomplete.

Local Government

Updated: 25 November 2022; Ref: scu.195472

White v Procurator Fiscal, Perth: HCJ 27 Jan 1999

The defendant challenged his conviction for supplying false information on applying for a shotgun certificate. He had said that he had no convictions, but failed to disclose an adminishment, refusing to add the case to the application, having explained to the constable that he had not been convicted.
Held: ‘There may have been an error in law in not appreciating that a conviction such as this was a conviction but we are satisfied that this was a false statement made by the appellant and that there was corroboration.’

Judges:

Lord Prosser

Links:

ScotC

Statutes:

Firearms Act 1968 26(5)

Jurisdiction:

Scotland

Crime

Updated: 25 November 2022; Ref: scu.170986

Sim v Robinow: 1892

The task of the court in deciding jurisdiction is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice.

Judges:

Lord Kinnear

Citations:

(1892) 19 R 665

Jurisdiction:

Scotland

Cited by:

Cited – Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000
South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .
Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Cited – 889457 Alberta Inc v Katanga Mining Ltd and others ComC 5-Nov-2008
The parties had set out on a joint venture with deeds providing for control of the shareholdings in each other. The claimant asserted a breach of the deed and sought a remedy. The first defendant company, incorporated in Bermuda argued that the . .
Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 25 November 2022; Ref: scu.194831

Dunlop v McGowans: HL 6 Mar 1980

The landlord of a block of flats needed vacant possession to pursue redevelopment. The respondent solicitors failed to give the necessary notice in good time, delaying the development by a year. The landlord appellant delayed five years before claiming damages, and now appealed against denial of his claim, arguing that section 11 produced in the case of this one breach of duty a series of ‘appropriate dates’ under section 6, each relating only to the ‘pecuniary loss’ which could be demonstrated to have been suffered on or before that date. This was contrasted with only ‘potential loss,’ which would not serve to produce a terminus a quo as an appropriate date, albeit it could be made the subject of proceedings and a claim, if the pursuer thought fit, before it ripened into a ‘pecuniary loss.’ Although the relevant time could elapse as to some part of the loss or damage suffered, it did not follow that it would have elapsed as to other parts: and in this it is right to say that he was not contending that more than one action could be brought for the same breach of duty.
Held: The argument, and the appeal failed. The claimed distinction could not be established: ‘All is a question of quantification of the harm done by the breach of duty. The loss damage and injury suffered by the pursuer was that arising from the fact that he was unable to obtain vacant possession at Whitsun 1971 and pursue his plans for development, and it occurred then.’

Judges:

Lord Keith of Kinkel, Viscount Dilhorne, Lord Edmund-Davies, Lord Fraser of Tullybelton

Citations:

[1980] UKHL 17, 1980 SC (HL) 73, 1980 SLT 129

Links:

Bailii

Statutes:

Prescription and Limitation (Scotland) Act 1973 11

Jurisdiction:

Scotland

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: . .
Cited – Gordon and Others (Trustees of The Inter Vivos Trust) v Campbell Riddell Breeze Paterson Llp SC 15-Nov-2017
The claimants appealed from rejection of their claims for losses saying that such losses had been caused by their solicitors in failing properly to identify the tenant and the relevant lease when issuing notices to quit. The solicitors argued that . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 24 November 2022; Ref: scu.279745

Soucie v Soucie: 1995

After noting the approval of In re N in Perrin the court added: ‘Furthermore the question of settlement had to be considered in the context of the spirit of the Convention whereby the fundamental duty of the court is to order a return of the child to the proper jurisdiction when there has been a wrongful removal or retention.’ The court considered whether any discretion remained to make an order after the one year period under Art 18: ‘Such a balancing exercise may be appropriate when considering the discretionary powers of the court under Article 18, which will come into play if the proviso to Article 12 is established or indeed if any of the matters contained in Article 13, which will come into play if the proviso to Article 12 is established or indeed if any of the matters contained in Article 13 are established.’ and ‘We should add that we were addressed on the matter of discretion which would have arisen under Article 18 if we had been satisfied that either of the main issues should be decided in favour of the respondent.’

Citations:

(1995) SLT 414

Statutes:

Child Abduction and Custody Act 1985 5

Jurisdiction:

England and Wales

Citing:

Cited – Re N (Minors) (Abduction) FD 2-Jan-1991
The court considered the degree of settlement that had to be proved under the Act: ‘The second question which has arisen is: what is the degree of settlement which has to be demonstrated? There is some force, I find, in the argument that legal . .
Cited – Perrin v Perrin IHCS 1994
. .

Cited by:

Cited – Cannon v Cannon CA 19-Oct-2004
The mother had brought the child to the UK wrongfully. She had hidden their identity for more than a year. Upon discovering her, the father came to England and began proceedings for the child’s return to the US.
Held: Because the child’s . .
Lists of cited by and citing cases may be incomplete.

Scotland, Children

Updated: 24 November 2022; Ref: scu.219158

Wrightson v AOC International Limited: 20 Oct 1995

A preliminary proof was allowed before answer on the matters raised by the parties under section 19A as he considered that there should be an inquiry into specific material facts on which the parties were not agreed. These related to the pursuer’s prospects of success against his former English solicitors or counsel and his former Scottish solicitors, as well as the extent to which he would suffer inconvenience and delay in prosecuting an action against any of his previous advisers, even if he did have good prospects of success.

Judges:

Lord Gill

Citations:

20 October 1995, unreported

Jurisdiction:

England and Wales

Cited by:

Cited – David Lannigan v Glasgow City Council OHCS 12-Aug-2004
The pursuer said the teachers employed by the defendant had failed to identify that was dyslexic, leading him to suffer damage. The defenders said the claim was time barred, which the pursuer admitted, but then said that the claim ought to go ahead . .
Lists of cited by and citing cases may be incomplete.

Scotland, Limitation

Updated: 24 November 2022; Ref: scu.200283

Gordon v M’Hardy: 1903

The pursuer sought to recover damages from a retail grocer on account of the death of his son by ptomaine poisoning, caused by eating tinned salmon purchased from the defender. The pursuer averred that the tin, when sold, was dented, but he did not suggest that the grocer had cut through the metal and allowed air to get in, or had otherwise caused injury to the contents.
Held: The action was irrelevant: ‘I do not see how the defender could have examined the tin of salmon which he is alleged to have sold without destroying the very condition which the manufacturer had established in order to preserve the contents, the tin not being intended to be opened until immediately before use.’

Judges:

Lord Justice-Clerk

Citations:

(1903) 6 F 210

Jurisdiction:

England and Wales

Cited by:

Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Lists of cited by and citing cases may be incomplete.

Negligence, Contract, Scotland

Updated: 24 November 2022; Ref: scu.197995

Gallemos (In Receivership) Ltd v Barratt Falkirk Ltd: 1989

Citations:

1989 SC 248

Jurisdiction:

England and Wales

Cited by:

Cited – Safdar v Shahid SCS 30-Apr-2004
The pursuer claimed repayments of loans made for the purchase of company shares. The defender denied any loan had been made, and claimed that any loans would require evidence in writing under the Act.
Held: The arguments should be allowed to . .
Lists of cited by and citing cases may be incomplete.

Contract, Scotland

Updated: 24 November 2022; Ref: scu.196583

Buchanan v Alba Diagnostics Ltd: OHCS 24 Jun 1999

The pursuer developed and patented a brake fluid safety device. They obtained an interest free loan, and as security assigned the patent and any future developments. After the enforcement of the debt, the lenders sold the assignment to the defenders who made improvements which they patented. The pursuer claimed that those improvements infringed the patent.

Judges:

Lord Hamilton

Citations:

[1999] ScotCS 159, [2000] RPC 367

Links:

Bailii, ScotC

Jurisdiction:

Scotland

Citing:

Appeal – Buchanan v Alba Diagnostics Limited IHCS 6-Feb-2001
. .

Cited by:

Appeal from – Buchanan v Alba Diagnostics Limited IHCS 6-Feb-2001
. .
Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 24 November 2022; Ref: scu.169570

Equity and Law Life Assurance Society v Tritonia Ltd: HL 1943

Viscount Simon LC said: ‘When an appeal is argued before the House of Lords, no one has any right of audience except counsel instructed on behalf of a party or (when the litigant is a natural person) the party himself. In the case of a corporation, inasmuch as the artificial entity cannot attend and argue personally, the right of audience is necessarily limited to counsel instructed on the corporation’s behalf . . Such a rule limiting a right of audience on behalf of others to members of the English or Scottish or Northern Irish bars, secures that the House will be served by barristers or advocates who observe the rules of their profession, who are subject to a disciplinary code, and who are familiar with the methods and scope of advocacy which are followed in presenting arguments to this House’.

Judges:

Viscount Simon LC

Citations:

1943 SC (HL) 88

Jurisdiction:

Scotland

Cited by:

Cited – Apollo Engineering Ltd v James Scott Ltd (Scotland) SC 13-Jun-2013
After long running litigation between the parties, a shareholder and director of Apollo sought to represent the company in person. He was refused leave by the Court of Session, and now sought to appeal. The Court considered the possibility of an . .
Cited – HM Secretary of State for Business Enterprise and Regulatory Reform, Re Order To Wind Up UK Bankruptcy Ltd SCS 31-Mar-2009
Outer House – Court of Session – . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 23 November 2022; Ref: scu.526002

The Scotch Whisky Association and Others, Re Judicial Review: SCS 3 May 2013

(Outer House, Court of Session) The petitioners challenged the legality of an enactment of the Scottish Parliament – the Act. They also challenged the legality of the Scottish Ministers’ decision that they would make an Order setting the minimum price at 50 pence per unit of alcohol.
Held: The claim was rejected

Judges:

Lord Doherty

Citations:

[2013] ScotCS CSOH – 70, 2013 SLT 776

Links:

Bailii

Statutes:

Alcohol (Minimum Pricing) (Scotland) Act 2012

Jurisdiction:

Scotland

Citing:

See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 26-Sep-2012
Outer House – application by Alcohol Focus Scotland for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine . .

Cited by:

See Also – Scotch Whisky Association and Others v The Lord Advocate and Another SCS 30-Apr-2014
(Extra Division, Inner House, Court of Session) Reclaiming motion is brought against the Lord Ordinary’s decision rejecting the petitioners’ challenge to the provisions of the 2012 Act. Reference to ECJ . .
See Also – Scotch Whisky Association and Others for Judicial Review SCS 11-Jul-2014
Extra Division, Inner House – Further application for leave to intervene. . .
See Also – Scotch Whisky Association And Others v Lord Advocate, Advocate General for Scotland ECJ 23-Dec-2015
ECJ (Judgment) Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – Free movement of goods – Article 34 TFEU – Quantitative . .
See also – The Scotch Whisky Association and Others v The Lord Advocate and Another SCS 21-Oct-2016
The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming . .
See Also – Scotch Whisky Association and Others v The Lord Advocate and Another SC 15-Nov-2017
The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum . .
Lists of cited by and citing cases may be incomplete.

Licensing, European

Updated: 23 November 2022; Ref: scu.495201

Donaldson v Ord: 1855

Citations:

(1855) 17 D1053

Jurisdiction:

England and Wales

Cited by:

Cited – Safdar v Shahid SCS 30-Apr-2004
The pursuer claimed repayments of loans made for the purchase of company shares. The defender denied any loan had been made, and claimed that any loans would require evidence in writing under the Act.
Held: The arguments should be allowed to . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 23 November 2022; Ref: scu.196582

Carter v McIntosh: 1862

A recognised method of intimation is production of the assignation in judicial proceedings.

Citations:

(1862) 24 D 925

Jurisdiction:

Scotland

Cited by:

Cited – Safdar v Shahid SCS 30-Apr-2004
The pursuer claimed repayments of loans made for the purchase of company shares. The defender denied any loan had been made, and claimed that any loans would require evidence in writing under the Act.
Held: The arguments should be allowed to . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 20 November 2022; Ref: scu.196584

Seton v Paterson: SCS 9 Dec 1880

A person hired a horse for an afternoon ride. He took it into a field in the course of his ride, and made it gallop round the field. While in the field it suddenly became lame from a fracture, as it afterwards appeared, of a pastern bone. The horse was kept in a stable for six weeks, unable to take exercise from the result of the injury. At the expiry of the six weeks it took inflammation of the bowels and died. It was proved that want of exercise tends to make a horse more liable to such a disease. Held that the use of the horse to gallop in the field was a breach of the contract, and that the hirer was therefore liable for the injury which there happened; that while it was not certain that the supervening inflammation resulted from the injury for which the hirer was responsible, it was at least highly probable that it did so result; and that in the circumstances the hirer was liable for the value of the horse-Lord Gifford dissenting and holding (1) that the hirer was fairly entitled to use the horse as he had done; and (2) that the inflammation not being proved to have been directly connected with the injury, the hirer should not, even assuming him liable for that injury, be found liable for the price of the horse.

Citations:

[1880] SLR 18 – 132 – 2

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 20 November 2022; Ref: scu.578890

Heron v Gray: SCS 27 Nov 1880

A proprietor acquired a house and garden in a town, and converted it into two lots-the first consisting of a shop which he erected on the plot in front, and warerooms which had formed part of the sunk storey of the house, and had had for more than forty years windows looking out upon the garden ground to the back of the house. He sold this lot, ‘together with (1) the solum of the ground on which the said shop is built; (2) a right of property, in common with the proprietors of the dwelling-house, to the solum of the piece of ground on which the said cellars or warerooms are situated,’ and co. Thereafter he sold the remaining lot of the property, consisting of the dwelling-house above the shop, to a different purchaser, ‘together with a right of property along with’ the purchaser of the shop ‘to the solum of the piece of ground on which said house is built, together with the piece of ground or green lying to the’ back of the house, ‘with right to make use of it as absolute owner, it being hereby declared that there is no restriction against building on, or any right of servitude affecting, the said piece of ground.’ Held that the title of the purchaser of the shop gave him by implication a servitude of light over the piece of ground to the south on which the windows of the wareroom looked, and that the express grant of that piece of ground, with the declaration that there was no servitude affecting the ground in the title which the common author of the parties had given to the purchaser of the house, could not interfere with the servitude implied in the earlier right of the proprietor of the shop.

Citations:

[1880] SLR 18 – 113

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 20 November 2022; Ref: scu.578855

Jie Lin and Sheng Lu and Qing Guang He and Xin Chen v Her Majesty’s Advocate: HCJ 30 Nov 2012

The defendants, awaiting trial on charges for supplying drugs, appealed against the refusal of bail.
Held: It is competent before the sheriff, and by way of appeal by Bill of Suspension, to challenge the grant of a warrant for full committal, either on the basis that it is defective in form (there being three necessary requisites) or because the granting of the warrant would amount to oppression. The Bills of Suspension were not competent because they did not contain contentions that the warrants were either defective in form or oppressive.

Judges:

Lord Carloway LJC

Citations:

[2012] ScotHC HCJAC – 151, 2014 SLT 173, 2014 SCCR 109, 2013 GWD 40-762, 2014 SCL 120

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – CMcL v Her Majesty’s Advocate HCJ 28-Mar-2013
The defendant, accused of murder appealed against refusal of bail, denying the existence of a prima facie case against him.
Held: Jie Lien was not authority for the proposition that a warrant can be suspended in the course of a bail appeal. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 20 November 2022; Ref: scu.519282

Longworth v Yelverton: HL 1867

A declarator of marriage, even after the death of the other party, is a judgment in rem, and it is conclusive proof that a marriage had been constituted, and is binding on all persons whomsoever.

Judges:

Lord Chancellor Chelmsford

Citations:

(1867) 5 M (HL) 144

Jurisdiction:

England and Wales

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.

Family, Scotland

Updated: 20 November 2022; Ref: scu.463483

Rae v Meek: HL 1889

The beneficiaries under a trust created by a marriage contract sued a trustee for having lost trust money which had been lent on the security of unfinished houses in a building speculation. The trustee was held liable to restore the trust fund. The beneficiaries also sued the trustees’ solicitor, who had advised the trustee that there was no objection to the investment. Lord Herschell dealt with the liability of the solicitor, by re-stating the rule that in the exceptional case of a failure by trustees to act, ‘the beneficiaries might compel them to do so, or even enforce the right themselves.’ He went on to say that no such question (that is, of a failure by trustees to act) was raised by the averments in relation to the claim in that case by the beneficiaries against the solicitor, who (in any event) was not liable because he had not been retained by the trustees to advise on the sufficiency of the security.

Judges:

Lord Herschell

Citations:

(1889) 14 App Cas 558

Jurisdiction:

Scotland

Cited by:

Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Trusts, Litigation Practice

Updated: 19 November 2022; Ref: scu.415973

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 vendors were not able to perform their side of the bargain.
Held: The evidence showed that the object of the two contracts was to give effect to an agreement for the sale of the two ships together. The purchasers were entitled to refuse to accept delivery of one ship without the other. It is always open to inquiry whether the existence of two separate documents represented the real bargain between the parties.

Judges:

Viscount Findlay

Citations:

1919 SC (HL) 132

Jurisdiction:

Scotland

Cited by:

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

Contract

Updated: 19 November 2022; Ref: scu.410706

Caledonian Insurance Company v Gilmour: HL 1892

If parties had agreed as to the way in which a liability to pay was to be determined, that was binding, and if the contractual method of determining liability was not followed the pursuers would be trying to enforce a contract of a different nature.

Citations:

1892 20 R (HL) 13

Jurisdiction:

Scotland

Cited by:

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

Contract

Updated: 19 November 2022; Ref: scu.410700

Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd: HL 26 Nov 1981

Even though a shipowner who had carried cargo on deck was not entitled to rely on the exceptions to liability in his contract, a limitation clause was different and should not be construed by reference to the specially exacting standards applicable to exclusion and indemnity clauses. The words of exclusion must be clear and unambiguous, and should, failing this, be construed strictly against the proponent (contra preferentem) and is seeking to rely on them.
Lord Fraser said: ‘these principles [i.e., those applicable to exclusion and indemnity clauses] are not applicable in their full rigour when considering the effect of clauses merely limiting liability. Such clauses will of course be read contra proferentem and must be clearly expressed , but there is no reason why they should be judged by the specially exacting standards which are applied to exclusion and indemnity clauses. The reason for imposing such standards on these clauses is the inherent improbability that the other party to a contract including such a clause intended to release the proferens from a liability that would otherwise fall upon him. But there is no such high degree of improbability that he would agree to a limitation of the liability of the proferens, especially when . . the potential losses that might be caused by the negligence of the proferens or its servants are so great in proportion to the sums that can reasonably be charged for the services contracted for . .’
Lord Wilberforce said that limitation clauses are not viewed with the same hostility as are exclusion clauses.

Judges:

Lord Fraser, Lord Wilberforce

Citations:

[1983] 1 WLR 964, [1981] UKHL 12, [1983] 1 All ER 101, 1982 SLT 377

Links:

Bailii

Statutes:

Hague Rules

Jurisdiction:

England and Wales

Citing:

Cited – Canada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .

Cited by:

Cited – Daewoo Heavy Industries Ltd and Another v Klipriver Shipping Ltd and Another CA 3-Apr-2003
The carrier had loaded the cargo on the ship’s deck, despite a clause requiring it to be stowed in a hold. The charterparty sought to use the breach to remove the carrier’s limit of liability. The older form of Hague rules applied.
Held: It . .
Applied – Bovis Construction (Scotland) Ltd v Whatlings Construction Ltd HL 19-Oct-1995
The managing contractors sought damages from a sub-contractor. The contract was on a printed form and in letters. A letter limited time related damages to pounds 100,000. The main contractors sought a much larger sum.
Held: A clause seeking to . .
Cited – Amiri Flight Authority v BAE Systems Plc CA 17-Oct-2003
The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued . .
Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd CA 29-Sep-1982
The buyer bought 30lbs of cabbage seed, but the seed was not correct, and the crop was worthless. The seed cost pounds 192, but the farmer lost pounds 61,000. The seed supplier appealed the award of the larger amount and interest, saying that their . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport, Scotland

Updated: 18 November 2022; Ref: scu.181088

Alvis v Harrison: HL 1989

The dominant tenement lay on both sides of the servient land, a driveway running North South leading to the A73 highway. To the West of the driveway, on part of the dominant tenement, stood a house. The owner of the house wished to construct a new drive to run eastwards from the driveway and thence to join the highway further east than the place where the servient tenement joined it. The owner of the servient tenement sought to stop him from doing so.
Held: He could not. A right of access over servient property could not in substance be used to benefit property other than the dominant property, whatever the ownership of the dominant and non-dominant properties.
Lord Jauncey of Tullychettle said: ‘Before turning to the facts of this case it may be convenient to state certain general principles applicable to servitude rights of access and their use: ‘Where a right of access is granted in general terms the owner of the dominant tenement is entitled to exercise that right not only for the purpose of the use to which the tenement is then being put but also for any other lawful purpose to which it may be put thereafter . . The right must be exercised civiliter, that is to say, reasonably and in a manner least burdensome to the servient tenement . . For the better enjoyment of his right the dominant owner may improve the ground over which the right extends provided that he does not substantially alter the nature of the road nor otherwise prejudice the servient tenement . . A servitude right of access inures to the benefit of the dominant tenement and no other. Thus is cannot communicated for the benefit of other tenements contiguous thereto . . What they may not do, however, is to use the way, or permit its use by others, to obtain access to subjects other than the dominant tenement, whether or not they happen to be heritable proprietors of those others subjects. They may not, in short, increase the scope of the right of access, and in particular they may not use the way for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the lane and the non dominant subjects . .’ and ‘It is quite wrong to treat the A 73 as though it were another tenement contiguous to the woodlands. The underlying reason for restricting the benefit of a servitude right of access to the dominant tenement alone is that to use it for the benefit of a second or third tenement is likely to generate more traffic and so increase the burden. In this case, the appellant already has a right of access to the A 73 over the driveway. The new road merely provides a substitute means of access without altering the volume of traffic.’

Judges:

Lord Jauncey of Tullychettle

Citations:

(1990) 62 P and CR 10, [1989] SLT 746

Jurisdiction:

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 – Sargeant and Another v Macepark (Whittlebury) Ltd ChD 5-Mar-2003
The servient owner granted a lease of easements to the dominant owner, to provide a means of access to the dominant land, and from the dominant land (an hotel) to the Silverstone racing circuit. Subsequently the hotel owner negotiated a more direct . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 November 2022; Ref: scu.180363

Van Overwaele, Re Interdict: SCS 10 Dec 2009

Petition for interdict in which the petitioner for the most part has been a party litigant. The petition arises out of the sequestration of the petitioner in January 2000 and she seeks to interdict the respondent, the permanent trustee, from seizing or disposing of property forming part of the estate.

Citations:

[2009] ScotCS CSOH – 164

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Russell v Van Overwaele SCSF 2-Mar-2005
‘The Sheriff Principal having resumed consideration of the cause Refuses the appeal and Adheres to the interlocutor of the sheriff dated 4 September 2003; Certifies the appeal as suitable for the employment of junior counsel; Finds the defender and . .
See Also – Van Overwaele v Hacking and Paterson and Another ScS 22-Apr-2004
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 18 November 2022; Ref: scu.384169

Doogan and Another v NHS Greater Glasgow and Clyde Health Board: SCS 24 Apr 2013

(Extra Division, Inner House) The reclaimers, Roman Catholic midwives working on a labour ward as co-ordinators, sought to assert a right of conscientious objection under the 1967 Act. The respondents said that only those directly involved in the termination of a pregnancy could assert such a right.
Held: The midwives’ appeal succeeded. The Act set out an exhaustive statement of the arrangements for lawful abortions. ‘The conscientious objection in section 4 is given, not because the acts in question were previously, or may have been, illegal. The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant . . It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy.’ The actions required of the nurses went beyond administrative support and amouunted to active involvement in the treatment processes.
Lady Dorran expanded on the entitlement to conscientious objection: ‘The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant. As Lord Diplock observed in the RCN case, it is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy.’

Judges:

Lord Mackay of Drumadoon, Lady Dorrian, Lord McEwan

Citations:

[2013] ScotCS CSIH – 36

Links:

Bailii

Statutes:

Abortion Act 1967 4(2)

Citing:

Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – Janaway v Salford Area Health Authority HL 1-Feb-1988
The plaintiff took work as a secretary at a health centre, but objected to having to type out letters referring patients to an abortion clinic, saying that she conscientiously objected to participation in the process.
Held: Her appeal was . .
Cited – Christian Education South Africa v Minister of Education 2001
(South African Constitutional Court) The court emphasised the fundamental importance of the right to express one’s religion in a pluralistic, multi-cultural society.
Sachs J observed: ‘The underlying problem in any open and democratic society . .
Cited – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
Cited – Isle of Anglesey County Council and Another v The Welsh Ministries and others CA 20-Feb-2009
The claimants, the Commissioners and the County Council, sought declarations to establish their right to build a marina on parts of the foreshore currently used for commercial mussel fishing. Section 40 of the 1868 Act authorised ministers to make . .
Appeal from – Doogan and Another, Re Judicial Review SCS 29-Feb-2012
(Outer House, Court of Session) Midwives worked on a labour ward which also had care of patients having later terminations. As sincere Roman Catholics, they sought to assert a right of conscientious objection to allow them to be excused from taking . .
Cited – Bayatyan v Armenia ECHR 7-Jul-2011
(Grand Chamber) The applicant was a practising Jehovah’s Witness and a conscientious objector. He said that his conviction for refusing to serve in the army had violated his right to freedom of thought, conscience and religion. That complaint had . .
Cited – British Pregnancy Advisory Service v Secretary of State for Health Admn 14-Feb-2011
The claimant sought a declaration that the administration of an abortifacient drug was not ‘any treatment for the termination of pregnancy’ for the purposes of section 1 of the 1967 Act, allowing the piloting and possible adoption of early medical . .
Cited – Ghai, Regina (on The Application of) v Newcastle City Council and Others CA 10-Feb-2010
The claimant appealed against a refusal of an order refusing him permission to use land for the purposes of an open air cremations, as required by his religion.
Held: His appeal succeeded. The 1902 Act should be interpreted generously in its . .
Cited – Rex v Bourne 1939
An eminent surgeon openly in a public hospital operated to terminate the pregnancy of a 14 year old girl who had become pregnant in consequence of a violent rape.
Held: The court suggested when summing up that there might be a duty in certain . .

Cited by:

Appeal from – Greater Glasgow Health Board v Doogan and Another SC 17-Dec-2014
Roman Catholic Midwives, working as Labour Ward Co-ordinators had objected to being involved in an administrative capacity in abortions being conducted by the appellants. The Outer House had said they were not entitled to opt out, but the Inner . .
Lists of cited by and citing cases may be incomplete.

Scotland, Health Professions

Updated: 17 November 2022; Ref: scu.472959

Matuszczyk v National Coal Board: 1953

The pursuer sought damages at common law after being injured by a shot-firing by a co-worker. The pursuer based his case on duties said to be owed to him by the shot-firer at common law. The defenders’ argument was that these duties had been superseded by the duties laid down by statutory regulation, for which the employer was not vicariously liable.
Held: The claim could proceed. The doctrine of common employment having been abolished the employer was vicariously liable: ‘ . . now that common employment has been abolished, the law of Scotland must be back where it was in Dixon v Rankine (1852) 14 D 420, which was disapproved in the Bartonshill case (1858) 3 Macq 266; and we can again rely after a prolonged eclipse upon the well-known judgment of Lord Justice-Clerk Hope from which I take this sentence in which his Lordship is referring to the victim’s fellow servants: ‘For their careful and cautious attention to duty, for their neglect of precautions by which danger to life may be caused, he (the employer) is just as much responsible as for such misconduct on his own part, if he were actually working or present.’ In other words, so far as regards conduct within the scope of the servant’s employment, there is no limit in the general case to the rule respondeat superior.’

Judges:

Lord President Cooper

Citations:

(1953) SC 8

Jurisdiction:

Scotland

Citing:

Cited – Stanbury v Exeter Corporation 1905
An action was brought against the corporation for the negligence of an inspector who, acting under the 1894 Act seized and detained sheep suspected of sheep-scab.
Held: The corporation was not liable. The inspector was performing a function . .

Cited by:

Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability

Updated: 17 November 2022; Ref: scu.241427

Nicol v National Coal Board: SCS 1952

The court considered a claim against his employer after the plaintiff suffered injury after a breach of safety regulations by a co-worker.
Held: Referring to Harrison v NCB: ‘It appears to me that that principle disposes of the argument against the relevancy of the pursuer’s case on breach of the statutory regulations. Accordingly, I hold that the pursuer relevantly averred that the defenders are vicariously responsible for the fireman’s breach of regulations 2(e) and (h) of the Explosives Order.’

Judges:

Lord Guthrie

Citations:

(1952) 102 LJ 357

Jurisdiction:

Scotland

Citing:

Cited – Harrison v National Coal Board HL 1951
The plaintiff sought damages from his employer after suffering injury when a co-worker fired a shot in the colliery, acting in breach of the regulations.
Held: There was no vicarious liability duty in law on the managers to ensure compliance . .

Cited by:

Approved – National Coal Board v England HL 1954
The plaintiff sought damages after being injured when a co-worker fired a shot. The employee however had himself coupled the detonator to the cable rather than leaving it to the shotfirer, and had his cimmitted a criminal offence. He had been found . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Personal Injury

Updated: 17 November 2022; Ref: scu.241424

Tyrie v Fletcher: 1777

It is a fundamental principle of a contract of insurance that, if the insurers had commenced to bear the risk concerned, for however short a time, the premium paid is not returnable.

Citations:

(1777) 2 Coup 666

Jurisdiction:

Scotland

Insurance

Updated: 17 November 2022; Ref: scu.244790