Category: Scotland

Whaley v Lord Watson: SCS 16 Feb 2000

The Scottish Parliament and its members have a limited statutory immunity from suit. No interdict or other order could be made against a member of the Parliament if the effect would be to grant an order against the Parliament not otherwise available. There is a remedy against a member in respect of wrongs which only a member could commit, but which the Parliament could not commit. Even so, remedies could only be retrospective not prospective. A member cannot be prevented from promoting a Bill.
Lord President Rodger said: ‘The Lord Ordinary gives insufficient weight to the fundamental character of the Parliament as a body which – however important its role – has been created by statute and derives its powers from statute. As such, it is a body which, like any other statutory body, must work within the scope of those powers. If it does not do so, then in an appropriate case the court may be asked to intervene and will require to do so, in a manner permitted by the legislation. In principle, therefore, the Parliament like any other body set up by law is subject to the law and to the courts which exist to uphold that law . . Some of the arguments of counsel for the first respondent appeared to suggest that it was somehow inconsistent with the very idea of a parliament that it should be subject in this way to the law of the land and to the jurisdiction of the courts which uphold the law. I do not share that view. On the contrary, if anything, it is the Westminster Parliament which is unusual in being respected as sovereign by the courts. And, now, of course, certain inroads have been made into even that sovereignty by the European Communities Act 1972. By contrast, in many democracies throughout the Commonwealth, for example, even where the parliaments have been modelled in some respects on Westminster, they owe their existence and powers to statute and are in various ways subject to the law and to the courts which act to uphold the law. The Scottish Parliament has simply joined that wider family of parliaments.’

Judges:

Lord President Rodger, Lord Prosser, Lord Morison

Citations:

Times 21-Mar-2000, [2000] ScotCS 41, 2000 SCLR 279, 2000 SC 340

Links:

Bailii, ScotC

Statutes:

Scotland Act 1998

Cited by:

Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Scotland

Updated: 04 June 2022; Ref: scu.163781

Royal Bank of Scotland Plc v Holmes: SCS 8 Jan 1999

The defender, a name at Lloyds, had obtained three guarantees from the pursuers. Initial claims under the gurantees were made and paid, by the bank and defender in turn, but then further claims were made against the guarantees whch were met by the pursuers who now sought payment from the defender. The defender argued that they had acted fraudulently.

Judges:

Lord MacFadyen

Citations:

[1999] ScotCS 10

Links:

Bailii

Jurisdiction:

Scotland

Scotland

Updated: 04 June 2022; Ref: scu.163442

Hoekstra and Others v Her Majesty’s Advocate High Court of Justiciary: PC 26 Oct 2000

The Privy Council has no standing to act as a general court of appeal on Scottish law. The jurisdiction given to it by the Act, was limited as prescribed by the Act to what are called devolution issues, issues related to the acts of devolution. Not all constitutional issues were indeed devolution issues.
Save for devolution issues as defined by paragraph 1 of Schedule 6 to the Scotland Act 1998, every interlocutor of the High Court of Justiciary such as that pronounced by the judges at the second sift is final and conclusive and not subject to review by any court whatsoever:

Judges:

Lord Slynn of Hadley, Lord Hope of Craighead, Lord Clyde

Citations:

Times 31-Oct-2000, [2000] UKHL D2, 2000 GWD 40-148, [2001] AC 216, (2000) 144 SJLB 272, 2000 SCCR 1121, [2000] 3 WLR 1817, 2001 SLT 28

Links:

PC, Bailii

Statutes:

Scotland Act 1998, Criminal Procedure (Scotland) Act 1995 124(2)

Citing:

See Also – Note of Appeal Against Conviction and Sentence By Lieuwe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Hendrik Van Rijs v Her Majesty’s Advocate HCJ 28-Jan-2000
. .
See Also – Lieuwe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Endrik Van Rijs v Her Majesty’s Advocate HCJ 7-Mar-2000
. .
See Also – Liewe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Hendrik Van Rijs v Hm Advocate HCJ 14-Apr-2000
A judge, having given judgment in an appeal case involving the application of the convention on Human Rights, wrote and published an article critical of the convention, and of its application in national law. The appeal decision was set aside, since . .
Appeal from – Lieuwe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Hendrik Van Rijs v Her Majesty’s Advocate HCJ 2-Jun-2000
. .

Cited by:

Cited – Hoekstra and Van Rijs etc v Her Majesty’s Advocate HCJ 18-Jan-2001
. .
Cited – Hoekstra and Van Rijs and Van Rijs and Van Rijs v Her Majesty’s Advocate HCJ 23-Jan-2002
. .
Cited – Kinloch v Her Majesty’s Advocate SC 19-Dec-2012
The appellant said that the police officers had acted unlawfully when collecting the evidence used against him, in that the information used to support the request for permission to undertake clandestine surveillance had been insufficiently . .
Lists of cited by and citing cases may be incomplete.

Scotland, Constitutional

Updated: 04 June 2022; Ref: scu.163267

Taylor v Against an Order and Judgment of the Employment Appeal Tribunal: SCS 18 Dec 1998

The claimant prison officer had continued beyond the normal retirement age, but subject to a discretion and review. The service changed its retirement policy. He now challenged the requirement that he retire.

Judges:

Caplan L

Citations:

[1998] ScotCS 103, [1999] SCLR 263, [1999] IRLR 362

Links:

Bailii

Citing:

Cited – Wandsworth London Borough Council v D’Silva and Another CA 9-Dec-1997
The council wanted to change its Code of Practice on Staff Sickness. Employees objected. The Council argued that the Code was not part of the employment contract, and that in any event the contract reserved to the council the right to alter the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Employment

Updated: 04 June 2022; Ref: scu.163419

Card Protection Plan Ltd v Commissioners of Customs and Excise: ECJ 25 Feb 1999

A company procuring insurance purchases for credit card protection was as exempt from VAT as was the insurer. A provision which restricted the ability to claim such exemption to those registered as insurers under national was invalid under European Law: ‘it is for the national court to determine . . whether the transactions . . are to be regarded for VAT purposes as comprising two independent supplies . . or whether one of those two supplies is the principal supply to which the other is ancillary, so that it receives the same tax treatment as the principal supply.’ What matters is ‘the essential features of the transaction’. ‘There is a single supply in particular in cases where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service. A service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied . .’
As to what amounted to insurance, the court said: ‘the essentials of an insurance transaction are, as generally understood, that the insurer undertakes, in return for prior payment of a premium, to provide the insured, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded.
It is not essential that the service the insurer has undertaken to provide in the event of loss consists in the payment of a sum of money, as that service may also take the form of the provision of assistance in cash or in kind of the type listed in the annex Directive 73/239 as amended by Directive 84/641. There is no reason for the interpretation of the term ‘insurance’ to differ according to whether it appears in the Directive on insurance or in the Sixth Directive.’

Citations:

Times 18-Mar-1999, C-349/96, [1999] STC 270, [1999] 2 AC 601, [1998] EUECJ C-349/96 – O

Links:

Bailii

Statutes:

Directive 73/239

Citing:

Referred back – Card Protection Plan Ltd v Commissioners of Customs and Excise HL 6-Feb-2001
The appellants sold a system protecting credit card holders against the consequences of loss or theft. They claimed that it was insurance and exempt from VAT. The commissioners said it was a service and vatable. The card provided a range of services . .
Cited – Commissioners of Customs and Excise v Madgett and Baldwin (trading as Howden Court Hotel) ECJ 22-Oct-1998
The court considered the criteria for determining whether the provision to guests by a hotelier of travel services (and in particular transport to and from the hotel and excursions) constituted supply which was ancillary to the supply of . .
Cited – Faaborg-Gelting Linien v Finanzamt Flensburg ECJ 2-May-1996
A non-takeaway restaurant is a supply of services, and a ferry supply was made from its place of business. The supply of prepared food and drink at a restaurant resulted from a whole series of services (including the preparation and service of the . .

Cited by:

Referred back – Card Protection Plan Ltd v Commissioners of Customs and Excise HL 6-Feb-2001
The appellants sold a system protecting credit card holders against the consequences of loss or theft. They claimed that it was insurance and exempt from VAT. The commissioners said it was a service and vatable. The card provided a range of services . .
Cited – Commissioners of Customs and Excise v Century Life Plc CA 19-Dec-2000
The Directive required member states to exempt from VAT, services involving the provision of insurance, and for intermediaries. Following the Regulator’s involvement, the principal company had to arrange for the checking of existing policies, and . .
Cited – College of Estate Management v Commissioners of Customs and Excise ChD 13-Nov-2003
The college appealed a finding that the supply of course manuals to its students was part of its exempt rather than zero-rated supply.
Held: ‘Once it is decided that there is a single supply from an economic view which should not be . .
Cited – Commissioners for Customs and Excise v Southern Primary Housing Limited CA 18-Nov-2003
The land owner had elected to pay VAT on the purchase of land. It sought to recover that VAT. The Commissioners appealed an order allowing that.
Held: Ther were three transactions, the purchase, the sale, and a development contract. The input . .
Cited – College of Estate Management v Commissioners of Customs and Excise CA 11-Aug-2004
When offering courses to distance learning students, the College offered materials for the courses. As part of the course this supply would be exempt, as books, the supply would be zero-rated, but the taxpayer would be able to reclaim its VAT . .
Cited – Beynon and Partners v Customs and Excise HL 25-Nov-2004
The House asked whether the personal administration of a drug such as a vaccine by an NHS doctor to a patient is a taxable supply for the purposes of value added tax. The provision of medical care in the exercise of the medical and paramedical . .
Cited – HM Revenue and Customs v Weight Watchers (UK) Ltd ChD 21-Jan-2008
The court was asked whether the weight-watchers program which included attendance at a course and a supply of supporting materials was one single standard-rated supply or separate supplies of zero-rated printed materials and standard-rated support . .
Cited – Re Digital Satellite Warranty Cover Ltd and Others ChD 31-Jan-2011
The Financial Services Authority sought public interest orders for the winding up of three companies selling, it said, extended warranty cover plans without authorisation. The companies said that authorisation was not required, since only services . .
Cited – Digital Satellite Warranty Cover Ltd v The Financial Services Authority CA 29-Nov-2011
Parties appealed against on order for the winding up of the company. The Authority (FSA) had said that the company which supplied warranties to owners of digital receiver boxes were providing regulated insurance services, but that the companies were . .
Cited – Baxendale Ltd and Another v Revenue and Customs FTTTx 4-Jul-2013
FTTTx PROCEDURE – striking out of proceedings – whether appellants’ case had a reasonable prospect of succeeding – abuse of process – whether Court of Appeal decision in David Baxendale was per incuriam or . .
Lists of cited by and citing cases may be incomplete.

European, Scotland, VAT, Insurance

Updated: 03 June 2022; Ref: scu.161975

Chief Adjudication Officer v Faulds (Scotland): HL 11 May 2000

A claim for industrial injuries benefit must be related to an identifiable accident. Where the injury, being psychological, arose from exposure to a multiple of serious accidents, and no particular one or identified series, could properly be said to be the cause of the injury, the benefit was not payable. The distinction is between an accident and a process.

Citations:

Gazette 31-May-2000, Times 16-May-2000, [2000] 2 All ER 961, [2000] UKHL 26, [2000] 1 WLR 1035

Links:

House of Lords, House of Lords, Bailii

Statutes:

Social Security Contributions and Benefits Act 1992 94(1)

Jurisdiction:

England and Wales

Health and Safety, Scotland, Benefits

Updated: 31 May 2022; Ref: scu.159060

Stewart v Secretary of State for Scotland (Scotland): HL 22 Jan 1998

The dismissal of a Scottish Sheriff ‘for inability’ is not limited in meaning to either mental or physical infirmity, but can also include simple incompetence. The fact that the inquiry into the sherriff’s unfitness was conducted in private was not unfair.

Judges:

Lord Lloyd of Berwick, Lord Jauncey of Tullichettle, Lord Steyn, Lord Hutton, Lord Saville of Newdigate

Citations:

Times 28-Jan-1998, [1998] UKHL 3, 1998 SC (HL) 81

Links:

House of Lords, Bailii

Statutes:

Sherriffs Courts (Scotland) Act 1971

Jurisdiction:

England and Wales

Citing:

Appeal from – Stewart v Secretary of State for Scotland IHCS 1996
The House considered the test of unfitness of a Sherriff: ‘. . what has to be shown is that he is not really capable of performing the proper function of a judge at all.’ . .

Cited by:

Cited – Meerabux v The Attorney General of Belize PC 23-Mar-2005
(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been . .
Appealed to – Stewart v Secretary of State for Scotland IHCS 1996
The House considered the test of unfitness of a Sherriff: ‘. . what has to be shown is that he is not really capable of performing the proper function of a judge at all.’ . .
Lists of cited by and citing cases may be incomplete.

Administrative, Scotland, Legal Professions

Updated: 31 May 2022; Ref: scu.158934

Axis West Developments Ltd v Chartwell Land Investments Ltd: HL 15 Dec 1998

(Scotland) A had granted to C an heritable and irredeemable servitude right to install services under land. A objected to the installation of a particular pipe, and sought damages to the cost of a grant of similar rights. All conditions restricting the use of land must be very clearly expressed, the presumption being always for freedom. Here the clause was sufficiently clear, and the easement was granted. Appeal dismissed.

Judges:

Lord Slynn of Hadley Lord Hope of Craighead Lord Clyde Lord Hobhouse of Wood-borough Lord Millett

Citations:

[1998] UKHL 48

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Anderson v Dickie HL 22-Apr-1915
S. feued a piece of his ground to M., the feucontract containing this clause-‘Declaring . . that it shall not be lawful to the said S. or his aforesaids or the other disponees to sell or feu any part of the said ground now occupied as the lawn . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 31 May 2022; Ref: scu.158979

Tinto or Murray for Interdict (21): SCS 7 Mar 2019

Application to interdict a firm of solicitors from acting for the claimant’s husband in divorce proceedings.
Held: Granted.

Citations:

[2019] ScotCS CSOH – 21

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Main decision – Tinto or Murray for Interdict (22) SCS 7-Mar-2019
The petitioner has succeeded in a request to have her husband’s chosen solicitors interdicted from acting for him. The parties now disputed the base for the costs of that application. . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 30 May 2022; Ref: scu.634502

Alexander Cunningham, Ws v Thomas Kinnear, Insurance Broker In Edinburgh, Alexander Brown and Son, Merchants, and William Hume, Merchant Upholsterer In Edinburgh: HL 27 Mar 1765

Partnership – Joint Adventure – Praepositus Negotiis.-
Where goods were purchased on individual account; and thereafter an interest purchased therein by another, as part of a cargo shipped for foreign trade; where also there was no contract, and no previous reputed partnership, anterior to the purchase of the goods shipped: Circumstances in which held, there was an existing copartnery, and that the deceased partner, in purchasing the goods, in ordering the insurances, and in receiving the returns, acted as pr positus negotiis of the company, and bound the other partners.

Citations:

[1765] UKHL 2 – Paton – 114, (1765) 2 Paton 114

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 29 May 2022; Ref: scu.560610

Volkert Hendricks, Late Master of The Ship Katherine of Amsterdam, and Peter Willem Van Lankern of Amsterdam, Merchant, and The Owners of The Said Ship Katherine and Her Cargo v Wm Cunningham, Merchant, Glasgow: HL 2 Jul 1783

Paton Capture – Jurisdiction.- Circumstances in which held that a Dutch vessel, while coming from a French colony, with the produce of that island to Amsterdam, was held to have been illegally captured as a neutral, neither the vessel nor the cargo, nor her papers, shewing that she was an adopted French vessel. Opinion indicated, though the objection to the competency was waived, that the Admiralty Court of Scotland had no jurisdiction to try such a question, but that it belonged to the High Admiralty Court of England.

Citations:

[1783] UKHL 2 – Paton – 609, (1783) 2 Paton 609

Links:

Bailii

Jurisdiction:

Scotland

Transport

Updated: 29 May 2022; Ref: scu.562106

Edinburgh District Council v Secretary of State for Scotland: SCS 1985

Inner House

Judges:

Lord Jauncey

Citations:

1985 SC 261

Jurisdiction:

Scotland

Cited by:

Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Lists of cited by and citing cases may be incomplete.

Administrative

Updated: 28 May 2022; Ref: scu.447657

Central Regional Council v B: 1985

In the absence of any specific provision forbidding or restricting appeals, the presumption was that the ordinary rules applied in respect of a summary application. Since those rules allowed appeals, the plea to the competency of an appeal from the sheriff in that case was repelled.

Citations:

1985 S L T 413

Statutes:

Social Work (Scotland) Act 1968

Jurisdiction:

England and Wales

Cited by:

Cited – Glasgow City Council v DH and Another IHCS 17-Jul-2003
Exclusion orders had been sought under the Act, but refused for non-compliance with procedures under the Act. New applications were made to different courts, and the applicant said it was not open to the Authorities to make the same application . .
Lists of cited by and citing cases may be incomplete.

Scotland, Children

Updated: 28 May 2022; Ref: scu.184721

Clydesdale Bank plc v Davidson and Others (Scotland) Clydesdale Bank plc v Davidson and Others: HL 16 Oct 1997

(Scotland) Joint pro indiviso proprietors of land were not able at law to create a binding lease in favour of one of their number, so as to defeat the proper claims of a third party. A person cannot enter into a contract with himself.
Held: The appellant was not able to assert his rights as an agricultural tenant so as to defeat the rights of the bank as mortgagee.

Judges:

Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Lloyd of Berwick, Lord Hope of Craighead, Lord Clyde

Citations:

Times 20-Dec-1997, [1997] UKHL 55

Links:

House of Lords, Bailii

Statutes:

Agricultural Holdings (Scotland) Act 1991

Jurisdiction:

England and Wales

Citing:

Cited – Price v Watson 1951
One pro indiviso proprietor of heritable property sought summarily to eject other pro indiviso proprietors from part of the property.
Held: Lord Keith doubted the need to sist the action of ejection: ‘That it can be used against a co-owner who . .
Distinguished – Pinkerton v Pinkerton OHCS 1986
An agreement by A to let a farm to himself, his wife and two sons was a valid lease which gave security of tenure. the Landlord and tenant were sufficiently different for a valid agreement between them to be possible. . .
Cited – Church of Scotland Endowment Committee v Provident Association of London Ltd 1914
. .

Cited by:

Cited – Jacobs v Official Receiver; In re Jacobs (a bankrupt) ChD 3-Apr-1998
The bankrupt was due to have his automatic discharge, but the Official Receiver applied on the day before for the discharge for an interim suspension of the discharge to allow consideration of his alleged lack of co-operation. The bankrupt said the . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Scotland, Agriculture, Contract

Updated: 23 May 2022; Ref: scu.135193

HM Advocate, Re 4th Criminal Court of Lisbon, A Porugese Judicial Authority: HCJ 9 Dec 2011

The Lord Advocate appealed against dismissal of extradition proceedings against the two defendants.

Citations:

[2011] ScotHC HCJAC – 121, [2011] HCJAC 121

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 23 May 2022; Ref: scu.450154

Greater Glasgow Health Board v Baxter Clark and Paul: SCS 1990

Outer House Court of Session – Lord Clyde held (obiter) that the ordinary and natural meaning of the phrase ’caused as aforesaid’ included the distinct ingredient of causation by negligence: ‘The question is one of the interpretation of section 11(3) . . In my view . . the subsection looks for an awareness not only of the fact of loss having occurred, but the fact that it is a loss caused by negligence . . I do consider that the ordinary and natural meaning of the phrase [’caused as aforesaid’] involves an inclusion of the ingredient of causation by fault. The construction advocated by the defenders does not seem to me to give sufficient recognition to the presence of the critical three words. Indeed, if Parliament had intended what the defenders submit is the proper construction, the words could have been altogether omitted. Counsel for the defenders argued that it was necessary to refer to the fact that the loss was loss resulting from an act, neglect or default because it was with that that the section was concerned. As senior counsel for the defenders put it, the critical phrase was inserted to draw attention back to section 11(1) to show the kind of loss of which the creditor has to be aware without making awareness of the fact of causation an essential for the prescriptive period to start running. But the whole section is concerned with claims for reparation which involve damnum caused by injuria and it does not seem to me that the critical words could have been added simply as a reminder of that. They must be there for some purpose and they must be given some meaning. In accordance with the ordinary use of the language which is used, awareness of loss having occurred is not enough. What the subsection requires is awareness of loss caused by negligence having occurred.
Furthermore as senior counsel for the pursuers submitted, the logic of the scheme points to a requirement of knowledge that the right of action exists before the obligation is deemed to be enforceable and it would be illogical to omit one of the essential components of the right of action, namely the causation of the loss by fault. Even more compelling to my mind was his further submission that if it is only knowledge of the fact of loss, injury or damage having occurred which is intended, it is difficult to give much content to the reference to reasonable diligence. The more likely context for reasonable diligence is in the steps that may be taken after loss has been sustained to discover the cause of it . .’

Judges:

Lord Clyde

Citations:

1990 SC 237

Statutes:

Prescription and Limitation (Scotland) Act 1973

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

Limitation

Updated: 20 May 2022; Ref: scu.552028

Wallis v Wallis: HL 5 Aug 1993

(Scotland) The valuation of the matrimonial home was to be taken as at the date of the couple’s separation. The House affirmed the decision of the Court of Session.

Judges:

Lord Keith of Kinkel

Citations:

Times 05-Aug-1993, 1993 SC (HL) 49, [1993] UKHL 16, [1993] EG 148 (CS), 1993 SLT 1348, 1993 SCLR 800

Links:

Bailii

Statutes:

Family Law (Scotland) Act 1985 8 9 10

Jurisdiction:

England and Wales

Citing:

Appeal from – Wallis v Wallis SCS 1992
The effect of section 10(3)(b) of the 1985 Act was that the whole of the wife’s share of the increase in its value after the date of separation which passed to the husband as a result of the sheriff’s order had to be left out of account in the . .

Cited by:

Cited – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Lists of cited by and citing cases may be incomplete.

Scotland, Family

Updated: 20 May 2022; Ref: scu.90263

Stiell Ltd v Riema Control Systems Ltd: IHCS 28 Jun 2000

Contractors had been called upon to carry out work beyond that originally requested, and sought payment, and had arrested a payment in the hands of a third party. Before raising the action they had referred the matter to adjudication under the Act.
Held: The fact of the reference did not change the fact of the claim, and the effect of the arbitrator’s decision in rejecting the claim was not like that of a certifying engineer or architect.

Citations:

Times 28-Jun-2000

Statutes:

Housing Grants Construction and Regeneration Act 1996

Jurisdiction:

Scotland

Arbitration, Construction, Scotland

Updated: 20 May 2022; Ref: scu.89556

Dormer v Melville Dundas and Whitson Ltd: 1990

Citations:

1990 SLT 18

Jurisdiction:

Scotland

Cited by:

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

Scotland

Updated: 20 May 2022; Ref: scu.410555

Mulvey v Secretary of State for Social Security: HL 20 Mar 1997

The appellant had had repayable awards from the social fund and also income support benefit. Deductions were made from the benefit to repay the awards. Her estate was sequestrated. She argued that the awards should no longer be deducted.
Held: Deductions by way of recoupment for overpayments of benefit were correctly continued after bankruptcy.
Lord Jauncey said: ‘By no stretch of the imagination could the respondent’s exercise of his statutory right be described as diligence for the purpose of the law of Scotland’.
The rule at common law rule was also disapplied: ‘The deductions made by the respondent were not, as in the normal case of compensation in bankruptcy, a result of the bankruptcy, but were made in pursuance of a statutory scheme which was already in operation at the time of sequestration and with which the permanent trustee can have no concern. Prior to sequestration, the appellant had no right to receive by way of income support benefit more than her gross entitlement under deduction of such sum as had been notified to her by the respondent prior to payment of the award by the respondent. This was the result of the statutory scheme and she could not have demanded more.’

Judges:

Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Slynn of Hadley, Lord Lloyd of Berwick

Citations:

[1997] UKHL 10, 1997 SC (HL) 105

Links:

House of Lords, Bailii

Statutes:

Social Security Administration Act 1992 167(3), Social Security Contributions and Benefits Act 1992 138(1)

Citing:

Cited – Fraser v Robertson 1881
A creditor in an obligation undertaken by a debtor prior to sequestration must, after sequestration, enforce that obligation against the estate vested in the trustee and can only seek a decree of constitution there anent against the debtor . .
Cited – Macdonald’s Trustee v Macdonald 1938
So much income received by a debtor as exceeds his needs, as determined by the Sheriff, may require to be paid to the permanent trustee. The 1921 Act did not override . .
Cited – Bradley-Hole v Cusen CA 1953
The creditor was a tenant of rent-controlled premises who had been charged too much rent by his landlord. The bankrupt landlord’s trustee argued that the claim in respect of overpaid rent had been converted into a right to prove the debt in the . .
Appeal from – Mulvey v Secretary of State for Social Security IHCS 24-Nov-1995
The claimant had first been granted a loan from the Social Fund. After her bankruptcy, the benefits loan was recoverable from benefits even after the bankruptcy if the loan was not proved in the bankruptcy. The right to recover by deduction was but . .

Cited by:

Cited – Secretary of State for Work and Pensions v Payne and Another SC 14-Dec-2011
The appellant sought to recover overpayments of benefits and Social Fund Loans, after the respondent had had a Debt relief order.
Held: The Secretary of State’s appeal failed. The ‘net entitlement principle’ argued for did not exist. The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Benefits, Scotland

Updated: 19 May 2022; Ref: scu.84121

K (A Patient) v Craig: HL 3 Dec 1998

(Scotland) A move to supervised community care by a detained patient first requires a finding by a psychiatrist that detention is no longer necessary, but a report to that effect is not sufficient to allow requirement to release as such.

Judges:

Slynn, Lloyd, Hoffmann, Hope, Hutton LL

Citations:

Times 07-Dec-1998, [1998] UKHL 54, 1999 SCLR 67, 1999 SLT 219, 1998 GWD 40-2074, 1999 SC (HL) 1

Links:

Bailii

Statutes:

Mental Health (Scotland) Act 1984 Part V

Health, Scotland

Updated: 19 May 2022; Ref: scu.82652

Guild v Inland Revenue Commissioners: HL 6 May 1992

The will left land for a sports centre to a local authority which no longer existed. If the gift was charitable, the gift would be applied cy pres, but if not it would fail and pass to the family and be subect to Inheritance Tax.
Held: A gift to a local authority of land on which to construct a sports centre, was in its nature charitable, and the gift is exempt therefore from Inheritance Tax.

Judges:

Lord Keith of Kinkel, Lord Roskill, Lord Griffiths, Lord Jauncey of Tullichettle, Lord Lowry

Citations:

Gazette 06-May-1992, [1990] UKHL 10, [1992] 2 AC 310, [1992] UKHL 16, [1993] Imm AR 112, [1992] 1 WLR 1052, [1992] 4 All ER 673

Links:

Bailii, Bailii

Statutes:

Finance Act 1975 Sch 6 para 10, Income and Corporation Taxes Act 1970 360(3), Recreational Charities Act 1958 1

Citing:

Cited – Russell’s Executor v Balden 1989
. .
Cited – Inland Revenue Commissioners v McMullen ChD 1978
The Football Association set up a trust to promote football and other sports in schools and universities. The parties disputed whether a valid charitable trust had been created.
Held: The trust was not valid as one for the advancement of . .
Cited – Inland Revenue Commissioners v McMullen HL 6-Mar-1980
HL Charity – Promotion of sport – Trust created ‘to organise or provide or assist in the organisation and provision of facilities which will enable and encourage pupils of schools and universities in any part of . .
Cited – Baddeley (Trustees of the Newtown Trust) v Inland Revenue Commissioners HL 17-Feb-1955
Land had been conveyed to trustees for the moral, social and physical well-being of a community. The court considered whether the trust was charitable in nature, where it was said that it confined the benefits to a class of people who do not . .
Cited – Income Tax Special Commissioners v Pemsel HL 20-Jul-1891
Charitable Purposes used with technical meaning
The House was asked whether, in a taxing statute applying to the whole of the United Kingdom and allowing for deductions from and allowances against the income of land vested in trustees for charitable purposes, the words ‘charitable purposes’ . .
Cited – Inland Revenue Commissioners v McMullen CA 1979
The Football Association had set up a trust to promote football in universities and schools, claiming this was charitable under the 1958 Act.
Held: The trust was not charitable whether as being for the advancement of education, or in the . .
Cited – Weir v Crum-Brown HL 6-Feb-1908
If a bequest in a will to a class of persons is capable of application by the trustees, or failing them, the court, the gift is not void for uncertainty. Lord Macnaghten said: ‘The testator has taken pains to provide competent judges. It is for the . .
Cited – Commissioner of Valuation for Northern Ireland v Lurgan Borough Council CANI 1968
The respondent local authority owned an indoor swimming pool. It claimed exemption from rates under section 2 of the 1854 Act saying that it was used exclusively for the purposes of a recreational charity under the Act of 1958.
Held: (By a . .
Cited – National Deposit Friendly Society Trustees v Skegness Urban District Council HL 1959
The House considered the meaning of the phrase ‘the advancement of . . social welfare’ in the 1955 Act. Lord Denning said: ‘A person is commonly said to be engaged in ‘social welfare’ when he is engaged in doing good for others who are in need – in . .
Lists of cited by and citing cases may be incomplete.

Inheritance Tax, Charity, Scotland

Updated: 19 May 2022; Ref: scu.81079

Fraser v Mirza: HL 29 Mar 1993

A complaint made against a police officer may be libellous if it was made with an improper motive: ‘The motive with which a person made a defamatory communication can only be ascertained from an examination of his state of mind at the time he made it, which, as Lord Diplock said, can only be inferred from what he did or said or knew . . In the circumstances I am of the opinion that the respondent’s intentions in respect of what he was trying to convey by the letter are properly to be taken into account for the purpose of ascertaining what was the dominant motive operating on his mind at the time he wrote it . . Absent of belief in the truth of a defamatory allegation actually conveyed is, as Lord Diplock said [in Horrocks v Lowe], usually conclusive evidence of improper motive amounting to express malice. There is no valid reason for not holding that the same inference is necessarily to be drawn where the maker of the communication is proved to have intended by it to convey a defamatory allegation in the truth of which he did not believe, but which on a proper construction of the communication it is found not to bear.’

Judges:

Lord Keith of Kinkel

Citations:

Ind Summary 29-Mar-1993, [1993] SC (HL) 27, [1993] UKHL 14, 1993 SLT 527

Links:

Bailii

Citing:

Cited – Horrocks v Lowe HL 1974
The plaintiff complained of an alleged slander spoken at a meeting of the Town Council. The council meeting was an occasion attracting qualified privilege. The judge at trial found that the councillor honestly believed that what he had said in the . .
Lists of cited by and citing cases may be incomplete.

Defamation, Police, Scotland

Updated: 19 May 2022; Ref: scu.80667

Elliott (Angus Gordon) v HM Advocate: HCJ 24 Mar 1995

New evidence on an appeal was admissible only in accordance with the Act.

Judges:

Lord Justice Clerk Ross

Citations:

Times 16-May-1995, 1995 JC 95, [1995] ScotHC HCJ – 2, 1995 SLT 612, 1995 SCCR 280

Links:

Bailii

Statutes:

Criminal Procedure (Scotland) Act 228(2)

Cited by:

Cited – Fraser v Her Majesty’s Advocate SC 25-May-2011
The defendant appealed against his conviction for murder, saying that the prosecution had failed to disclose certain matters.
Held: The appeal succeeded, the conviction was quashed and the case remitted to the Scottish courts to consider . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Scotland

Updated: 19 May 2022; Ref: scu.80299

Drummond and Co v Lamb and Others; Drummond and Co, WS v Scottish Legal Aid Board: HL 29 Apr 1992

The cost of excess work carried out under the green form scheme, was not recoverable despite the LAB’s subsequent approval of the action.

Citations:

Gazette 29-Apr-1992, [1992] UKHL 13, 1992 SC (HL) 1, [1992] 1 WLR 163, 1992 SLT 337

Links:

Bailii

Statutes:

Legal Aid (Scotland) Act 1986 10

Jurisdiction:

Scotland

Legal Aid

Updated: 19 May 2022; Ref: scu.80137

Discovery Communications Inc v Discovery Fm Ltd: IHCS 25 Jan 2000

It was no defence to an action for trade mark infringement to assert that although the registration covered activities of the type undertaken, the claimant did not actually provide services of that precise type. It is in the nature of such registrations that they reserve to the mark holder the right to develop his activities within the registration class.

Citations:

Times 25-Jan-2000

Statutes:

Trade Marks Act 1994 10

Intellectual Property, Scotland

Updated: 19 May 2022; Ref: scu.80063

Crummock (Scotland) Ltd v Hm Advocate: HCJ 9 May 2000

A company was charged with causing a contamination of the water over a large area, and the jury was drawn from that same area, and therefore might contain members who had drunk the water alleged to have been contaminated. The issues surrounding the impartiality of a jury were different from those about a judge. They were selected at random from a wide area. It was fallacious to view them as potential complainants.

Citations:

Times 09-May-2000

Statutes:

European Convention on Human Rights

Criminal Practice, Human Rights, Scotland

Updated: 19 May 2022; Ref: scu.79701

Burke v Royal Infirmary of Edinburgh National Health Service Trust: OHCS 8 Jun 1998

A 26 year old man who had no pre-existing condition sustained damage to his lumbar spine in a fall. He suffered from constant lumbar pain and also sudden shooting pains through his left buttock and thigh to his knee. He developed an abnormal pain disorder, and was forced to retire from work on medical grounds about nine months after his accident.
Held: Where an accident victim had a pre-disposition to suffer pain and inability to work despite absence of actual physical cause, the psychological damage was claimable in damages.

Citations:

Times 08-Jun-1998, 1999 SLT 539

Cited by:

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

Personal Injury, Scotland, Damages

Updated: 19 May 2022; Ref: scu.78751

Brooks v Civil Aviation Authority and Another: IHCS 28 Jul 2000

When the Pensions Ombudsman carried out an investigation under the Act, he was entitled to act on the information already gathered, and had no obligation to undertake a new factual enquiry. The issues in this case had been litigated repeatedly, and the ombudsman had a wide discretion as to the conduct of his investigation of the complaint, and in this case his decision could not be faulted.

Citations:

Times 28-Jul-2000

Financial Services, Administrative, Scotland

Updated: 18 May 2022; Ref: scu.78678

Boyter v Thomson: HL 15 Jun 1995

The parties bought and sold a boat. It proved defective. The pursuer sought to rely on the 1979 Act to imply a covenant for fitness. The defender denied that the pursuer thought it a business purchase.
Held: A purchaser can rely on implied covenants against a vendor in business despite the vendor’s non-disclosure. A private seller is liable as if in business when goods were sold through a professional agent.

Judges:

Lord Jauncey of Tullichettle, Lord Lloyd of Berwick, Lord Nolan, Lord Nicholls of Birkenhead and Lord Hoffman

Citations:

Gazette 06-Sep-1995, Times 16-Jun-1995, [1995] UKHL 20, [1995] 3 WLR 36, [1995] 2 AC 628, [1995] 3 All ER 135, 1995 SC (HL) 15, 1995 SLT 875, 1995 SCLR 1009

Links:

Bailii

Statutes:

Sale of Goods Act 1979 14(2) 14(3) 14(5)

Jurisdiction:

Scotland

Contract, Consumer

Updated: 18 May 2022; Ref: scu.78532

Bowers v Kennedy: IHCS 28 Jun 2000

A landowner who had no alternative means of access to his land could not lose a right of way to it by a failure to use it. It was not a right of servitude, but rather an incident of the rights inherent as owner. The inapplicability of periods and rules of limitation in such cases was well established.

Citations:

Times 27-Jul-2000, [2000] ScotCS 178, [2000] ScotCS 179

Links:

Bailii, Bailii

Land, Limitation, Scotland

Updated: 18 May 2022; Ref: scu.78518