Category: Scotland

Watson v Fram Reinforced Concrete Co (Scotland) Ltd: HL 1960

A workman had been injured through the breaking of a defective part in the machine with which he was working. He brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had supplied it to his employers, on averments that the accident had been caused by the fault of the manufacturers in that they failed to supply his employers with a machine which was safe for use by their servants. The machine had been supplied on 7 July 1955 and the accident had happened on 9 August 1956, but the manufacturers were not convened in the action until 25 March 1959.
Held: The three-year limitation period provided by section 6(1)(a) of the Law Reform (Limitation of Actions andc.) Act 1954 ran from the date when the workman suffered the injury and that, accordingly, the action against the manufacturers was not time-barred. ‘a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible.’
Lord Reid said: ‘The ground of any action based on negligence is a concurrence of duty and damage and I cannot see how there can be that concurrence unless the duty still exists and is breached when the damage occurs.’ and ‘It appears to me that default in the sense of breach of duty must persist after the act or neglect until the damage is suffered. The ground of any action based on negligence is the concurrence of breach of duty and damage, and I cannot see how there can be that concurrence unless the duty still exists and is breached when the damage occurs. Suppose that the damage occurred a year or two years after the manufacture and sale of the article: then undoubtedly the injured person can sue. But how could he sue if the manufacturer could say that his default had ceased a year before the injured person ever came near the dangerous article? Whatever be the true view with regard to the act or neglect, I think that the appellant is entitled to say that the respondents’ ‘default giving rise to the action’ existed at the time when he suffered his injuries.’
Lord Keith of Avonholm said: ‘Now this is a Donoghue v Stevenson type of case, and such a case undoubtedly introduces specialities into the law of negligence. But, on any view, I see difficulty in saying that there was negligence at the date of supply. At that date on the pursuer’s pleadings there was no reason why the manufacturers should have known of the dangerous state of the strut. It can hardly be expected that they had a legal duty to take it to pieces and inspect it before sending it out. Undoubtedly there was an act of carelessness on the part of some workman when the pin was welded to the strut and the manufacturers would be vicariously responsible for that carelessness. But can it be said that at either date there was an act of negligence in the legal sense? The manufacturers owed a duty to anyone who should handle the machine to take reasonable steps to see that it was safe. They owed a duty not to injure, but until someone was injured there was no breach of duty. Only then could it be said that an act of negligence had been committed. That, I think, necessarily follows from the judgment of this House in Donoghue v Stevenson.’ and ‘Applying the ratio of these decisions there was, in my opinion, no act, neglect or default within the meaning of the statute affecting the pursuer until he was injured. A fortiori there was no act, neglect or default giving rise to his action before that date. It was then for the first time that there arose a breach of duty which made its impact on the pursuer. Time, in my opinion, commenced to run against the pursuer under the statute from that date.’
Lord Denning said: ‘I think the true principle is contained simply in this: ‘You must not injure your neighbour by your fault.’ It is the doing of damage to him which, in my opinion, is the breach of duty giving rise to the action. It is no doubt correct to say, as Lord MacMillan did say (at p.71), that the manufacturer ‘is under a duty to take care in the manufacture of these articles.’ That is a duty which he owes to all those who may have occasion to use the article: and it is a duty which is broken at the time when he is negligent in making the article. But it is not a breach of duty to any particular individual. And it is not that breach of duty which gives rise to the action. There is another duty also to be considered: and that is the duty which Lord Atkin put in this wise (at p.44): ‘You must not injure your neighbour’: which I would expand so as to say that there is a duty on every man not to injure his neighbour by his want of reasonable care. This is a duty which he owes, not to the world at large, but to his neighbour. It is broken only when his neighbour is injured and not before. Then, and then only, is there a breach of duty giving rise to an action.’ and . . ‘The words ‘act, neglect or default’ are perhaps a little tautologous: for ‘act’ in legal terminology often includes an omission as well as an act of commission: and ‘default’ certainly includes ‘neglect’. But tautologous as they may be, the words are apt to cover all breaches of legal duty, no matter whether it be by leaving undone those things which we ought to have done, or by doing those things which we ought not to have done.’

Judges:

Lord Reid, Lord Keith of Avonholm, Lord Denning

Citations:

1960 SC 92, 1960 SC (HL) 92

Statutes:

Law Reform (Limitation of Actions) Act 1954 6(1)(a)

Citing:

Cited – Grant v Australian Knitting Mills PC 21-Oct-1935
(Australia) The Board considered how a duty of care may be established: ‘All that is necessary as a step to establish a tort of actionable negligence is define the precise relationship from which the duty to take care is deduced. It is, however, . .
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 . .

Cited by:

Cited – Hamilton v Fife Health Board 1993
A child was born but with injuries incurred while in utero alleged to have been caused by the negligence of the doctors attending the mother. The parents sued the health board for loss of the child’s society. The Board argued the action to be . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
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 – David T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Others SC 30-Jul-2014
The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Negligence, Limitation

Updated: 13 May 2022; Ref: scu.226700

Beattie v Scott: 1990

The court emphasised that, when a case comes to trial, ‘the interests of the accused person demand that the Crown should prove its case against him without any assistance whatever on his part’.

Judges:

Lord Justice General Hope

Citations:

1990 SCCR 296

Cited by:

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

Scotland, Criminal Practice

Updated: 13 May 2022; Ref: scu.225523

Farmer v HM Advocate: 1991

The judge warned the jury of the dangers in assessing evidence: ‘The task of assessment is not an easy one: it is certainly one which has to be approached with great care and circumspection.’

Citations:

1991 SCCR 986

Cited by:

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

Criminal Practice, Scotland

Updated: 13 May 2022; Ref: scu.225522

Bannatyne v Overtoun: IHCS 1902

The House rejected the suggestion of an apportionment of the assets of the Free Church of Scotland between competing claimants.

Judges:

Lord Low

Citations:

(1902) 4F 1083

Jurisdiction:

Scotland

Cited by:

Appeal from – Bannatyne v Overtoun HL 1904
The parties disputed ownership of the assets of the Free Church of Scotland.
Held: The minority church were vindicated. Their Lordships identified fundamental tenets of the Free Church from which the majority had departed, including the . .
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, Ecclesiastical

Updated: 13 May 2022; Ref: scu.223936

Advocate (HM) v M’Taggart Stewart: 1906

Citations:

(1906) 43 SLR 465

Cited by:

Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Income Tax

Updated: 13 May 2022; Ref: scu.223756

Perrin v Perrin: IHCS 1994

Citations:

[1994] SC 45

Statutes:

Child Abduction and Custody Act 1985 5

Citing:

Approved – 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 by:

Cited – 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 . .
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.

Children, Scotland

Updated: 13 May 2022; Ref: scu.219157

Robert Addie and Sons (Collieries) Ltd v Dumbreck: SCS 1928

A boy trespassed on land and was injured on machinery there. The local working-classes resorted to the field regularly ‘(1) as an open space; (2) as a playground; (3) as a means of access to chapel and railway station; and (4) – as regards the less well disposed members of the local community – as a means of approach to the defenders’ coal bing and wood depot for purposes of depredation. ‘ The defendant had taken steps to prevent the latter, but not otherwise.
Held: Lord President Clyde said that if the presence of a trespasser near a dangerous machine is known to the proprietor he cannot disregard it: ‘I am unable to distinguish that case from the case in which the proprietor knows of the habitual resort of adults or children, or both, to the near neighbourhood of the dangerous machine – a habit of resort which makes it to his knowledge likely that one or more of such persons may be at the machine when he applies the motive power.’

Judges:

Lord President Clyde

Citations:

1928 SC 547

Citing:

Cited – Lowery v Walker HL 9-Nov-1910
A trespasser was injured by the land owner’s savage horse.
Held: If a land-owner knows of but does nothing to stop acts of trespass by the public on his land, there may be an implied license. Decision reversed. In Scottish courts the . .

Cited by:

Appeal from – Addie (Robert) and Sons (Collieries) Ltd v Dumbreck HL 25-Feb-1929
No occupier is under any duty to potential trespassers, whether adults or children, to do anything to protect them from danger on his land, however likely it may be that they will come and run into danger and however lethal the danger may be. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Scotland, Land

Updated: 13 May 2022; Ref: scu.211428

Wilson v Nithsdale District Council: 1992

An eighteen year old girl had been sexually assaulted, was unable to return home, had been expelled from a hostel for suspected theft and was said to be at risk of further sexual assault if not provided with suitable accommodation. She sought housing as a vulnerable person.
Held: The court pointed out the dangers of a comparative approach in extablishing vulnerability: ‘The ‘comparative’ approach to vulnerability adopted in these cases cannot in my view be pushed to its logical limit; the intention cannot be that every homeless person will be held vulnerable for special reason merely because one other such homeless person might by comparison seem less vulnerable. The comparison must in my view be with some assumed average or normal run-of-the-mill homeless person. But if there is a lesser ability to fend for oneself, against that comparison, in a housing context, so that injury or detriment would result when such an ordinary homeless person would be able to cope without harmful effects, then in my opinion vulnerability for special reason is established for the purpose of the Act, and nothing more special (far less anything odd or exceptional) is required.’

Judges:

Lord Prosser

Citations:

[1992] SLT 1131

Cited by:

Approved – Regina v Kensington and Chelsea Royal London Borough Ex Parte Kihara; Similar CA 25-Jun-1996
Four asylum seekers had been deprived of benefits, and left destitute. They had sought housing assistance from the authority, claiming that the complete absence of resources left to them was an ‘other special reason’ leaving them vulnerable within . .
Cited – Regina v London Borough of Camden ex parte Pereira CA 20-May-1998
When considering whether a person was vulnerable so as to be treated more favourably in applying for rehousing: ‘The Council should consider such application afresh applying the statutory criterion: The Ortiz test should not be used; the dictum of . .
Lists of cited by and citing cases may be incomplete.

Housing, Scotland

Updated: 13 May 2022; Ref: scu.200294

McCabe v McLellan: IHCS 1994

An action of professional negligence was brought against two doctors for alleged negligence when the pursuer was a young child. He was 18 in 1986 and raised an action against the first defender within the triennium provided for in section 17(4) of the 1973 Act. When the action was raised he understood that the second defender had died but when he discovered that the second defender was, in fact, still alive he brought him into the action one month after the expiry of the triennium.
Held: ‘The discretion which is to be exercised under section 19A(1) has been said to be unfettered, and it is necessary to balance all the circumstances of the case and also the interests of all parties concerned . . It is for the pursuer to satisfy us that it would be equitable to allow him to proceed with his action . .’

Judges:

Lord President Hope

Citations:

1994 SC 87

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 . .
Cited – Bowden v Poor Sisters of Nazareth and others and similar HL 21-May-2008
The appellants said they had suffered abuse while resident at children’s homes run by the respondents. The respondents denied the allegations and said that they were also out of time. The claims were brought many years after the events.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Limitation

Updated: 13 May 2022; Ref: scu.200280

Carson v Howard Doris Limited: 1981

Whether it was equitable to allow an action to go ahead despite the expiry of the limitation period, depended upon three factors: ‘(1) the conduct of the pursuer since the accident and up to the time of his seeking the court’s authority to bring the action out of time, including any explanation for his not having brought the action timeously; (2) any likely prejudice to the pursuer if authority to bring the action out of time were not granted; and (3) any likely prejudice to the other party from granting authority to bring the action out of time’. Each case must depend upon its own facts. The court allowed the pursuer to convene the third party as a defender out of time as the pursuer had provided a reasonable explanation for his failure to direct the action against the third party timeously and he could have been prejudiced had he not been allowed to bring the action against the third party as he would have had no other remedy. There was minimal prejudice to the third party, who was already in the process and under the necessity of investigating the accident.
The power conferred by the section should be exercised sparingly and with restraint.

Judges:

Lord Ross

Citations:

1981 SC 278

Cited by:

Applied – Whyte v Walker 1983
The pursuer was injured in a road traffic accident on 8 July 1976 and raised an action on 19 June 1981 alleging that his original solicitors wrote to the defender on two occasions in 1977 claiming damages and that the defender had written on 5 . .
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 . .
Cited – Bowden v Poor Sisters of Nazareth and others and similar HL 21-May-2008
The appellants said they had suffered abuse while resident at children’s homes run by the respondents. The respondents denied the allegations and said that they were also out of time. The claims were brought many years after the events.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Limitation

Updated: 13 May 2022; Ref: scu.200277

Reavis v Clan Line Steamers Ltd: 1925

The pursuer was travelling as a passenger on a vessel which sank after colliding with another vessel while on passage from Glasgow to Dublin. It was common ground that she was entitled to damages for the personal injuries which she sustained and any loss attributable to her disability. But she sought also to recover loss due to the fact that some members of an orchestra which she had formed were drowned and others injured, resulting in the disbandment of the orchestra and the loss to her of what had been a profitable enterprise.
Held: Applying the grand rule, while the members of the orchestra had a right of action for their own personal injuries and losses, no action lay at the pursuer’s instance for the loss which she had sustained due to the loss of their services.

Citations:

1925 SC 725

Cited by:

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

Scotland, Negligence, Damages

Updated: 13 May 2022; Ref: scu.196523

J T A K v H M Advocate: 1991

Citations:

1991 SCCR 343

Cited by:

Cited – Gary Follen v Her Majesty’s Advocate PC 8-Mar-2001
PC High Court of Justiciary (Scotland) The defendant said that a trial under the section infringed his right to a fair trial, because of a ten month delay by the prosecutor. On arrest he had been recalled to . .
Lists of cited by and citing cases may be incomplete.

Scotland, Crime

Updated: 13 May 2022; Ref: scu.195987

Irving v Minister of Pensions: SCS 1945

Appeals were against decisions of Pensions Appeal Tribunals relating to claims for pensions in respect of death or disablement by war injuries. Article 4(1) of the Royal Warrant concerning Retired Pay, Pensions, etc dated December 1943 (Cmd 6489) provided that in no case was there to be an onus on any claimant to prove that the disablement or death of a member of the military forces was attributable to or aggravated by war service and that the benefit of any reasonable doubt should be given to the claimant: ‘In every issue of disputed facts between two parties, the onus of proof must inevitably be either on the one hand or the other, and the result of the provisions I have quoted is that the onus of proof is on the Minister.’

Judges:

Lord Justice Clerk Cooper

Citations:

1945 SC 31

Cited by:

Cited – Kerr v Department for Social Development (Northern Ireland) HL 6-May-2004
Wrongful Refusal of Benefits
The claimant was estranged from his family, but claimed re-imbursement of the expenses for his brother’s funeral. The respondent required him to establish that none of his siblings was in a better position than he to pay for the funeral, but he had . .
Lists of cited by and citing cases may be incomplete.

Scotland, Evidence, Benefits

Updated: 13 May 2022; Ref: scu.196892

Hyslop v Shirlaw: 1905

Judges:

Lord Kyllachy

Citations:

(1905) 7 F 875

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.

Contract

Updated: 13 May 2022; Ref: scu.195475

Da Prato v Magistrates of Partick: IHCS 1907

Judges:

Lord Loreburn LC

Citations:

1907 SC (HL) 5

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

Updated: 13 May 2022; Ref: scu.195473

Association of Patternmakers and Allied Craftsmen v Kirvin Ltd: EAT 1978

The court discussed the punitive nature of a protective award made where a company failed to consult on redundancies: ‘A Tribunal, however, is specifically enjoined to determine the [protected] period and so the amount of the award by paying regard to the seriousness of the employer’s default. This introduces a punitive element into the jurisdiction of an Industrial Tribunal and in contrast with eg, the calculation of a compensatory award which is based upon what is just and equitable having regard to the loss sustained.’

Judges:

Lord McDonald

Citations:

[1978] IRLR 318

Jurisdiction:

England and Wales

Cited by:

Cited – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Cited – Sweetin v Coral Racing EAT 20-Dec-2005
EAT Claimant sought compensation for unfair constructive dismissal and failure to consult prior to a TUPE transfer of a bookmaker’s business for which the claimant worked. Her contract of employment described her . .
Cited – MSF v Refuge Assurance Plc, United Friendly Insurance EAT 15-Feb-2002
EAT The EAT considered the employer’s duties to consult on making redundancies. The ET had found that company had satisfied the requirements. The Union argued that the duty to consult arose as soon as . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 13 May 2022; Ref: scu.194607

Napier’s Trustees v Morrison: 1851

Dealing with a public right of way, and holding that the defenders had possessed a road ‘by no trespass or tolerance, but as a public road’the court deprecated the citation in the Court of Session of authorities from England. He really wished, he said – taking a swipe at a future Lord President among others – that Scottish counsel and judges: ‘could imitate the example set us by the counsel and the judges of that kingdom, who decide their causes by their own rules and customs, without exposing themselves by referring to foreign systems, the very language of which they do not comprehend.’

Judges:

Lord Cockburn

Citations:

(1851) 13 D 1404

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 12 May 2022; Ref: scu.187792

McGeown v HM Advocate: 1989

Citations:

[1989] CLY 4029

Cited by:

Overruled – McFadyen v Annan 1992
The accused, a police officer, was subject of a complaint by the person arrested of assault. The defendant complained that the delay in bringing charges (7 months) was excessive so as to be unfair.
Held: The question should be whether the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice

Updated: 12 May 2022; Ref: scu.187398

HM Advocate v Mechan: 1991

Citations:

[1991] CLY 4657

Cited by:

Overruled – McFadyen v Annan 1992
The accused, a police officer, was subject of a complaint by the person arrested of assault. The defendant complained that the delay in bringing charges (7 months) was excessive so as to be unfair.
Held: The question should be whether the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice

Updated: 12 May 2022; Ref: scu.187401

Stuurman v HM Advocate: 1980

The court was asked whether a fair trial could take place at all in the light of the pre-trial publicity.
Held: The court noted that the palliative of judicial directions can never be absolutely effective, but the judge had done what he could. Lord Justice General (Emslie) said: ‘the question for us is whether on 25 January 1980 the risk of prejudice as the result of these publications was then so grave that even the careful directions of the trial judge could not reasonably be expected to remove it. In our opinion that question falls to be answered in the negative. The publications occurred almost four months before the trial diet was called. In considering the effect of these publications at the date of trial the court was well entitled to bear in mind that the public memory of newspaper articles and news broadcasts and of their detailed contents is notoriously short and, that being so, that the residual risk of prejudice to the prospects of fair trial for the applicants could reasonably be expected to be removed by careful directions such as those which were in the event given by the trial Judge.’

Judges:

Lord Justice General (Emslie)

Citations:

[1980] CLY 3011, 1980 JC 111

Cited by:

Applied – McFadyen v Annan 1992
The accused, a police officer, was subject of a complaint by the person arrested of assault. The defendant complained that the delay in bringing charges (7 months) was excessive so as to be unfair.
Held: The question should be whether the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice

Updated: 12 May 2022; Ref: scu.187400

Assets Co Ltd v Bain’s Trustees: 1902

A plea of mora may be sustained in an application for judicial review, but unreasonable delay is not of itself sufficient to found a successful plea: ‘But in order to lead to such a plea receiving effect, there must in my judgment have been excessive or unreasonable delay in asserting a known right, coupled with a material alteration of circumstances, to the detriment of the other party’.

Judges:

Lord President (Kinross)

Citations:

(1904) 6 F692

Jurisdiction:

England and Wales

Cited by:

Cited – SD, Re Application for Judicial Review OHCS 2-Oct-2003
Parents sought judicial review of a decision not to open a Record of Needs for their child. A report said that the child was dyslexic. The applicants said his condition had not improved after an earlier request to open a record had been refused.
Cited – Cameron and Another v Hughes Dowdall SCS 28-Oct-2008
The pursuer sought damages for negligence by his solicitors. They had sold their business, but the solicitors were said to have failed to include in their contracts clauses necessary for their protection. The defenders claimed that the action should . .
Lists of cited by and citing cases may be incomplete.

Scotland, Judicial Review

Updated: 12 May 2022; Ref: scu.186633

Middleton, Petitioner: 1929

Section 47 applied to any trust deed dated after 1 August 1848.

Judges:

Lord Blackburn

Citations:

1929 SC 394

Statutes:

Entail Amendment (Scotland) Act 1848 47

Cited by:

Cited – Earl of Balfour v Keeper of the Registers of Scotland and Others HL 6-Nov-2002
The applicant sought a declaration that he was the owner of land by virtue of the 1848 Act, claiming that a series of grants of liferent were ineffective to restrict the title transferred.
Held: Miller’s Trustees was to be applied in to the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Trusts

Updated: 12 May 2022; Ref: scu.186365

Yuill’s Trustees: 1902

Citations:

1902 4 F 815

Jurisdiction:

Scotland

Cited by:

Cited – Armstrong v Forbes ScS 3-Oct-2003
The pursuer sought to reclaim an order suspending possession.
Held: The defenders’ argument should be put, and the possession order remained suspended pending that decision. . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 12 May 2022; Ref: scu.186573

Murray v Murray’s Tutor: 1915

The date of a mortis causa trust disposition and settlement for the purposes of section 48 of the 1848 Act was the date of the truster’s death and not the date of its execution.

Citations:

1915 1 SLT 34

Statutes:

Entail Amendment (Scotland) Act 1848 47

Cited by:

Cited – Earl of Balfour v Keeper of the Registers of Scotland and Others HL 6-Nov-2002
The applicant sought a declaration that he was the owner of land by virtue of the 1848 Act, claiming that a series of grants of liferent were ineffective to restrict the title transferred.
Held: Miller’s Trustees was to be applied in to the . .
Disapproved – Lord Binning, Petitioner 1984
. .
Lists of cited by and citing cases may be incomplete.

Scotland, Trusts

Updated: 12 May 2022; Ref: scu.186367

G W H Riddell, Petitioner: IHCS 1874

The date of the deed must be taken to be the date when the trust deed was made and executed, which is the literal meaning of the words used

Judges:

Lord President Inglis

Citations:

(1874) 1 R 462

Statutes:

Entail Amendment (Scotland) Act 1848 47

Jurisdiction:

Scotland

Cited by:

Cited – Earl of Balfour v Keeper of the Registers of Scotland and Others HL 6-Nov-2002
The applicant sought a declaration that he was the owner of land by virtue of the 1848 Act, claiming that a series of grants of liferent were ineffective to restrict the title transferred.
Held: Miller’s Trustees was to be applied in to the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 May 2022; Ref: scu.186368

Allan and Sons Bill Posting Limited v Edinburgh Magistrates: 1909

In asking whether an appeal was available, the presence or absence of a record of the decision at first instance is an indicator, since an appeal is more difficult without.

Judges:

Lord Low

Citations:

1909 SC 70

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 . .
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, Litigation Practice

Updated: 12 May 2022; Ref: scu.184725

Allan v Scott: 1972

The courts in Scotland can look to English awards of damages for personal injuries.

Citations:

1972 SC 59

Jurisdiction:

Scotland

Cited by:

Cited – Morris v Fife Council OHCS 4-Jul-2003
The pursuer sought damages from the respondent council for abuse he had suffered whilst in their care as a child. He sought jury trial, the defenders said that was unsuitable, liability being admitted.
Held: This was a case which exceptionally . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 12 May 2022; Ref: scu.184318

Magistrates of Portobello v Magistrates of Edinburgh: 1882

‘where a well-known and recognised jurisdiction is invoked by the Legislature for the purpose of carrying out a series of provisions which are important for the public without any specific form of process being prescribed, the presumption is that the ordinary forms of that Court are to be observed in carrying out the provisions, and, indeed, generally that the court has been adopted and chosen and selected because it is seen to be advisable that the ordinary rules of such Court and the forms of its procedure shall be applied to give effect to the provisions of the legislative Act’.

Judges:

Lord Justice Clerk Moncrieff

Citations:

(1882) 10 R 130

Jurisdiction:

Scotland

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

Updated: 12 May 2022; Ref: scu.184722

Williams v Fraser: 1991

Citations:

1991 SCLR 307

Jurisdiction:

England and Wales

Cited by:

Cited – McDougall v Tawse ScSf 14-Sep-2001
Application was made to deny a certificate that a case had been fit for the employment of counsel, despite his not actually having appeared in court. The matter was a personal injury case with an order obtained without attendance.
Held: There . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 12 May 2022; Ref: scu.183022

Graham v Pollock: IHCS 1848

There was no dispute that a dog race had been won by a dog named Violet, and that Violet had been entered in the race by one of the parties. The issue was whether that party had entered Violet for his own benefit, having borrowed Violet for the purpose, and was therefore entitled to the prize; or whether he had entered Violet as the agent of Violet’s owner, who was therefore the person truly entitled to the prize.
Held: No question of sponsio ludicra. The issue as to which party was entitled to the prize depended on the nature of the contract between them, whether loan or agency, and since that was a question which was separate from the race itself, no question of sponsio ludicra was involved. It was a question not of racing or hunting, but of contract of mandate or loan. The whole sporting question is settled – the prize is awarded to Violet – and the question is, what individual has an interest by law and contract in what Violet has won?

Judges:

Lord Mackenzie, Lord Fullerton, Lord Jeffrey

Citations:

(1848) 10 D 646

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.

Scotland, Contract

Updated: 12 May 2022; Ref: scu.181866

Wilson v Independent Broadcasting Authority: OHCS 1979

In the lead up to the Scottish referendum on Devolution, the Authority required the broadcasters to carry party political broadcasts for each of the four main parties. Three parties favoured voting yes in the referendum, and the authority was injuncted by those opposing the Yes campaign.
Held: The injunction was set aside. The Act required the Authority to maintain a balance of approximately for each case. The court considered how the broadcasting media should achieve balance during elections.
Lord Ross said: ‘I see no reason in principle why an individual should not sue in order to prevent a breach by a public body of a duty owed by that public body to the public. It may well be that the Lord Advocate could be a petitioner if the interests of the public as a whole were affected…, but I see no reason why an individual should not sue provided always that the individual can qualify an interest.
Having considered the petitioners’ averments, I am of the opinion that the petitioners have averred sufficient interest.
(1) They are voters and the Referendum gives them the choice to say ‘Yes’ or ‘No’.
(2) They belong to an organisation or group who apparently believe that the question should be answered ‘No’.
(3) It is implicit in the name of the organisation or group that the petitioners wish to persuade other voters to vote ‘No’.
It is plain from the petition and the answers that the petitioners and the political parties believe that the programmes are likely to be influential upon the electorate in Scotland, and if that is so, the petitioners have an interest to see that the respondents do not act in breach of any statutory duties in relation to such programmes.’

Judges:

Lord Ross

Citations:

[1979] SC 351 OH, [1979] SLT 279

Statutes:

Broadcasting Act 1990

Cited by:

Cited – Regina v British Broadcasting Corporation, ex parte Referendum Party; Regina v Independent Television Commission, ex parte Referendum Party Admn 24-Apr-1997
The Referendum Party challenged the allocation to it of less time for election broadcasts. Under the existing agreements, having fielded over 50 candidates, they were allocated only five minutes.
Held: Neither the inclusion of past electoral . .
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.

Elections, Media, Scotland

Updated: 12 May 2022; Ref: scu.181971

Air Ecosse Ltd v Civil Aviation Authority: OHCS 1987

Citations:

(1987) 3 BCC 492, Ct of Session

Cited by:

Cited – Bristol Airport Plc and Another v Powdrill and Others CA 21-Dec-1989
An airline company went into administration. The airport seized two airplanes. The administrators claimed they were property within the administration, could not be seized without a court order, and the court should exercise its discretion not to . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 12 May 2022; Ref: scu.180533

Symington v Symington’s Quarries Ltd: IHCS 1905

Citations:

(1905) 8 F (Ct of Sess) 121

Cited by:

Approved – Ebrahimi v Westbourne Galleries Ltd and Others (on Appeal from In Re Westbourne Galleries Ltd) HL 3-May-1972
Unfair Prejudice to Minority Shareholder
A company had operated effectively as a partnership between two and then three directors. No dividends had been paid, but the directors had received salaries. One director was removed and sought an order for the other to purchase his shares, or . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 12 May 2022; Ref: scu.180523

Woodlands School (Newton Stewart) Ltd v Gordon: EAT 5 Oct 2001

The employer appealed against a finding of disability discrimination. The tribunal was claimed not to have taken account of the codes of practice and the need for a risk assessment.
Held: The absence of a risk assessment mean that no adjustment had been considered, and no justification was available. The finding was essentially under 5(1). The appeal was dismissed. The appeal against the award of damages calculated over two years was also dismissed. The EAT specifically criticised the minority chairman’s readiness to make allowance for a possible award of damages for the accident which led to the disability. To do so would defeat entirely the purpose of the legislation.

Judges:

The Honourable Lord Johnston

Citations:

EAT/220/01

Statutes:

Disability Discrimination Act 1995 5

Jurisdiction:

England and Wales

Citing:

Approved – P B Baynton v Saurus General Engineers Ltd EAT 14-Jul-1999
The Tribunal set out the order of questions to be established in a claim of disability discrimination: ‘The statutory sequence for establishing justification in a s.5(1)(a) claim is as follows: (1) The disabled appellant shows less favourable . .
Cited – Buxton v Equinox Design Ltd EAT 19-Nov-1998
Where a tribunal had found unfair dismissal and was considering an award of damages for injury to feelings under the Disability Discrimination Act, it had to recognise the different needs of unlimited awards, and take great care in assessing factual . .
Cited – the Post Office v S C Jones EAT 9-Feb-2000
EAT Disability Discrimination – Adjustments . .
Cited – H J Heinz and Co Ltd v Kendrick 2000
. .
Cited – Clark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland, Discrimination

Updated: 11 May 2022; Ref: scu.166530

Kivlin v Milne: 1979

Intention to deprive permanently. The defender took a car without the owner’s consent and left it in a place where it was not likely to be found.
Held: The Sheriff had been entitled to infer that there had been an intention to deprive the owner permanently, and therefore that there was theft.

Citations:

1979 SLT (Notes) 2

Scotland, Crime

Updated: 11 May 2022; Ref: scu.553821

Kirk Care Housing Association Ltd v Crerar and Partners: SCS 1996

Outer House – Lord Clyde reiterated his view, rejecting a challenge by counsel for the defenders, that section 11(3) was concerned only with awareness of loss, a matter of fact, and not with matters of legal liability.

Judges:

Lord Clyde

Citations:

1996 SLT 150

Statutes:

Prescription and Limitation (Scotland) Act 1973

Cited by:

Cited – David T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Others SC 30-Jul-2014
The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Limitation

Updated: 11 May 2022; Ref: scu.552029

Ghani v Peter T McCann and Co: 2002

Citations:

2002 SLT (Sh Ct) 135

Cited by:

Cited – David T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Others SC 30-Jul-2014
The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 11 May 2022; Ref: scu.552030

Browne v Thomson and Co: 1912

A newspaper article stated that in Queenstown instructions were issued ‘by the ‘Roman Catholic religious authorities that all Protestant shop ‘assistants were to be discharged.’ 7 pursuers averred that they were the sole persons who exercised religious authority in name and on behalf of the Roman Catholic Church in Queenstown.
Held: They were entitled to sue for libel as being individually defamed. Lord President Dunedin said: ‘I think it is quite evident that if a certain set of people are accused of having done something, and if such accusation is libellous, it is possible for the individuals in that set of people to show that they have been damnified, and it is right that they should have an opportunity of recovering damages as individuals.’

Judges:

Lord President Dunedin

Citations:

1912 SC 359

Cited by:

Cited – Knuppfer v London Express Newspaper Ltd HL 3-Apr-1944
The plaintiff complained that the defendant’s article was defamatory in implying that he was an agent of Hitler. He was representative in Great Britain of a political party of Russian emigres known as Mlado Russ or Young Russia. The total membership . .
Lists of cited by and citing cases may be incomplete.

Scotland, Defamation

Updated: 11 May 2022; Ref: scu.463693

Currie v Wardrop: 1927

The pursuer was walking arm in arm with her fiance when he was hit by a vehicle driven by the defender.
Held: She recovered damages for nervous shock involving apprehension for her own safety and the safety of her fiance, though he was hit and she was not. Miss Currie was not only at the scene, but suffered nervous shock through anxiety for her own safety. It would have been a hopeless task to attempt to work out what proportion of her nervous shock flowed from anxiety for herself, and what for her fiance.

Judges:

Lord Justice Clerk (Lord Alness) and Lord Ormidale

Citations:

1927 SC 538

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

Scotland, Damages

Updated: 11 May 2022; Ref: scu.464384

Will v Sneddon Campbell and Munro: SCS 1931

Lord Hunter said: ‘It is well settled, no doubt, that, if a man is bankrupt and if he is divested of his estate, he is not entitled to sue an action unless he finds caution. But that is only a general rule; there are exceptions even to that. On the other hand, there is no general rule to the effect that, unless a man has been rendered bankrupt and his estates have been sequestrated, he cannot be ordained by the court to find caution. Even short of bankruptcy, I think there may be circumstances in which a pursuer might be ordained to find caution.’
Lord Justice Clerk Alness said that the history of the litigation was an element which could be taken into consideration and that, while none of the considerations in that case might of itself have been sufficient, their cumulative effect seemed to him to justify the order.

Judges:

Lord Hunter, Lord Justice Clerk Alness

Citations:

1931 SC 164

Cited by:

Cited – Anderson v Shetland Islands Council and Another SC 29-Feb-2012
The claimant sought leave to appeal. Each party now sought security for costs against the other. Her action related to water damage to her house said to have been caused by road mprovements and building works erected by and with the approval of the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Litigation Practice

Updated: 11 May 2022; Ref: scu.452403

HM Advocate v Scottish Media Newspapers Ltd: 2000

Lord Rodger of Earlsferry discussed the fetters place upon the Lord Advocate by the 1998 Act, saying that he simply has no power to move the court to grant any remedy which would be incompatible with the European Convention on Human Rights.

Judges:

Lord Rodger of Earlsferry

Citations:

2000 SLT 331

Statutes:

Scotland Act 1998 57(2), European Convention on Human Rights

Cited by:

Cited – McGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Lists of cited by and citing cases may be incomplete.

Scotland, Constitutional, Human Rights

Updated: 11 May 2022; Ref: scu.449021

Gallacher v HM Advocate: HCJ 1951

The question for the court in answering whether an appeal an appeal should be available when new evidence had emerged was whether it was reasonably satisfied that, if the additional evidence was before the jury, it would not have convicted.

Citations:

1951 JC 38

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.

Scotland, Criminal Practice

Updated: 11 May 2022; Ref: scu.440847

Elliot v Mackie and Sons Ltd; Elliot v Whyte: 1935

Executors of the deceased founder of the company had executed transfers of shares in favour of two of their number and a third party to qualify them as directors of the company under the articles, the trustees and executors wanting adequate representation on the board of directors. The certificates were endorsed to show that the transfers were purely nominal and done only in order to enable the transferees to qualify as directors, the beneficial interest remaining in the transferors. This initiative was objected to by some of the beneficiaries under the deceased’s testamentary settlement. They said that registration of the transfers was ultra vires of the company because the company’s articles provided that shares must be held by a director ‘in his own name and right’, and that the register should be rectified because the transferees’ names had without sufficient cause been entered in the register.
Held: The argument that registration of the transfers was ultra vires of the company because the shares were not held in the transferees’ own right as they had no beneficial interest in them was rejected. It was practice for notice of trusts to be taken in company registers. But Lord President Clyde did not think that this made the relation between the registered trustee and the company in any way different from that which existed in the case of other shareholders. Applying Muir v City of Glasgow Bank (1878) 6 R 392, a trustee has the full right of property in the shares and consequently incurs personally the full liabilities of a shareholder. He added these words: ‘The matter is one in which it is most undesirable to have different interpretations, north and south of the Border, of an expression in common use in the articles of companies whose affairs are regulated by a legislative system which is intended to apply, generally, to both countries; and, whatever view might have been taken – had the matter arisen rebus integris – I think it is too late to open a question which (in England) authority and practice, and (in Scotland) practice conform to that authority, has closed.’
The expression in common use to which this passage refers is the provision in the company’s articles that the qualification was the holding of a certain number of shares in the director’s ‘own name and right.’ The decisive issue was the effect of the entry of the transferees’ names on the register as members of the company, as to which the law on both sides of the Border is the same. The fact that the certificates on the back of the transfers disclosed that the transfers were purely nominal was insufficient to prevent shares that were actually held in trust from constituting a director’s qualification.
Lord Morison said that it was of no concern to the company whether the shareholder was the owner of the shares which he held, or whether third parties were the owners or had interests in them.

Judges:

Lord President Clyde

Citations:

1935 SC 81

Citing:

Applied – Muir v City of Glasgow Bank HL 1878
The bank had failed as the result of a fraud perpertrated by its directors. The liability of the members was unlimited. Lord President Inglis said: ‘Persons becoming partners of a joint stock company, such as the Western Bank, and being registered . .

Cited by:

Cited – Farstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .
Lists of cited by and citing cases may be incomplete.

Scotland, Company

Updated: 11 May 2022; Ref: scu.432930

Robertson v RB Cowe and Co: 1970

A trestle erected on a marine slipway moved causing a workman to fall.
Held: Lord Guthrie concluded ‘from the whole circumstances elicited . . as to the position of the staging, the way in which the pursuer worked, the outward movement of the trestle, and where the pursuer fell’ that ‘on a balance of probabilities . . the erection was insecure and unsafe’. Lord Migdale treated the fact that the trestle fell over as proof that it was not safe, and both he and, with hesitation, Lord President Clyde concluded that the decision in Nimmo meant that breach of section 29(1) was established once it was proved that the trestle was not sufficiently stable to support a workman doing his job there normally.

Judges:

Lord Migdale, Lord Guthrie, Lord President Clyde

Citations:

1970 SLT 122

Cited by:

Cited – Baker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .
Lists of cited by and citing cases may be incomplete.

Scotland, Health and Safety

Updated: 11 May 2022; Ref: scu.440436

Melon v Hector Powe Ltd: SCS 1980

Judges:

Lord President Emslie

Citations:

1980 SC 188

Cited by:

Appeal from – Melon v Hector Powe Ltd HL 6-Nov-1980
Appeals on the ground of perversity will only succeed where it is shown that no reasonable Tribunal, properly directed in law, could have reached the decision made. The court set out the duties and powers of appellate courts in employment law: ‘It . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 11 May 2022; Ref: scu.402544

Watson Laidlaw and Co Ltd v Pott Cassells and Williamson: 1914

Damages were claimed for the infringement of a patent. The defender had sold 252 infringing machines sold in Java. The Lord Ordinary had given an unexplained award of andpound;1,500, which the Inner House had doubled. The defendant appealed saying that but the pursuer had not shown that he would have made 252 additional sales.
Held: Compensation is to be assessed on the basis of inference, conjecture and the like, by the exercise of sound imagination and the practice of the broad axe.
Lord Shaw said: ‘In the case of damages in general, there is one principle which does underlie the assessment. It is what may be called that of restoration. The idea is to restore the person who has sustained injury and loss to the condition in which he would have been had he not so sustained it. In the cases of financial loss, injury to trade, and the like, caused either by breach of contract or by tort, the loss is capable of correct appreciation in stated figures.
In a second class of cases, restoration being in point of fact difficult–as in the case of loss of reputation–or impossible–as in the case of loss of life, faculty, or limb–the task of restoration under the name of compensation calls into play inference, conjecture, and the like. And this is necessarily accompanied with those deficiencies which attach to the conversion into money of certain elements which are very real, which go to make up the happiness and usefulness of life, but which were never so converted or measured. The restoration by way of compensation is therefore accomplished to a large extent by the exercise of a sound imagination and the practice of the broad axe. It is in such cases, whether the result has been attained by the verdict of a jury or the finding of a single judge, that the greatest weight attaches to the decision of the court of first instance. The reasons for this are not far to seek . . In all these cases, however, the attempt which justice makes is to get back to the status quo ante in fact, or to reach imaginatively by the process of compensation a result in which the same principle is followed.’
As to the Java trade: ‘It is said in such a case: Where is the damage which the patentee has incurred? On the other heads of the case he has obtained his damages; but on this part, which covers a section of trade which in no circumstances he could have touched, he can have sustained no damage, because he would never have sold his patented articles within that section. The duty of an infringer is covered by the principle of restoration, and the patentee has surely been restored to as good a position as he was in before the infringement, or would have been in but for it, if he has been put into the same financial position as he would have occupied in that region of trade where alone he would have been operating.
It is at this stage of the case, however, that a second principle comes into play. It is not exactly the principle of restoration, either directly or expressed through compensation, but it is the principle underlying price or hire. It plainly extends–and I am inclined to think not infrequently extends– to patent cases. But, indeed, it is not confined to them. For wherever an abstraction or invasion of property has occurred, then, unless such abstraction or invasion were to be sanctioned by law, the law ought to yield a recompense under the category or principle, as I say, either of price or of hire. If A., being a liveryman, keeps his horse standing idle in the stable, and B., against his wish or without his knowledge, rides or drives it out, it is no answer to A. for B. to say: ‘Against what loss do you want to be restored? I restore the horse. There is no loss. The horse is none the worse; it is the better for the exercise.’ I confess to your Lordships that this seems to me to be precisely in principle the kind of question and retort which underlay the argument of the learned counsel for the appellants about the Java trade.’
Lord Shaw reviewed the working rules used to estimate the compensation to be awarded against an infringer, a task which he acknowledged would require ‘inference, conjecture and the like’ and involved ‘the exercise of a sound imagination and the practice of the broad axe’ One broader principle applied also, cases that: ‘wherever an abstraction or invasion of property has occurred, then, unless such abstraction or invasion were to be sanctioned by law, the law ought to yield a recompense under the category or principle, as I say, of price or hire. If A, being a liveryman, keeps his horse standing idle in the stable, and B, against his wish or without his knowledge, rides or drives it out, it is no answer to A for B to say: ‘Against what loss do you want to be restored? I restore the horse. There is no loss. The horse is none the worse; it is the better for the exercise.’ He concluded that: ‘If with regard to the general trade which was done, or would have been done by the Respondents within their ordinary range of trade, damages be assessed, these ought, of course, to enter the account and to stand. But in addition there remains that class of business which the Respondents would not have done; and in such cases it appears to me that the correct and full measure is only reached by adding that a patentee is also entitled, on the principle of price or hire, to a royalty for the unauthorised sale or use of every one of the infringing machines in a market which the infringer, if left to himself, might not have reached. Otherwise, that property which consists in the monopoly of the patented articles granted to the patentee has been invaded, and indeed abstracted, and the law, when appealed to, would be standing by and allowing the invader or abstractor to go free. In such cases a royalty is an excellent key to unlock the difficulty, and I am in entire accord with the principle laid down by Lord Moulton in Meters Ld. V Metropolitan Gas Meters Ld. (28 R.P.C. 163). Each of the infringements was an actionable wrong, and although it may have been committed in a range of business or of territory which the patentee might not have reached, he is entitled to hire or royalty in respect of each unauthorised use of his property. Otherwise, the remedy might fall unjustly short of the wrong.’

Judges:

Lord Shaw of Dunfermline, Lord Shand, Lord Kinnear, Lord Atkinson

Citations:

(1914) 31 RPC 104, 1914 SC (HL) 18

Cited by:

Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
Lists of cited by and citing cases may be incomplete.

Scotland, Intellectual Property

Updated: 10 May 2022; Ref: scu.276906

English v Donnelly: 1958

An agreement to subject to a foreign law a relationship which is in all other respects domestic equates with or is analogous to a contrary agreement.

Citations:

1958 SC 494

Cited by:

Cited – Office of Fair Trading v Lloyds TSB Bank PlC and Others HL 31-Oct-2007
The House was asked whether the liability of a credit card company under the 1974 Act applied where the contract was performed abroad and subject to foreign law.
Held: The principle which disapplied an English statute in an extra-territorial . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract

Updated: 10 May 2022; Ref: scu.276399

Jacobsen, Sons and Co v Underwood: 1894

Citations:

(1894) 21 R 654

Cited by:

Cited – Carmarthen Developments Ltd v Pennington SCS 24-Sep-2008
carmarthen_penningtonSCS2008
Contracts had been entered into for the sale of plots of land, which were conditional on planning permissions being approved by the purchaser. The buyer could waive the conditions to remove the sellers’ rights to resile. The buyer obtained the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract

Updated: 10 May 2022; Ref: scu.276447

Smith v Grayton Estates Ltd: SCS 1960

The Court was asked whether a tenancy continuing from year to year after the expiry of a fixed term by virtue of the 1949 Act was determined by notice given by one of two joint tenants.
Held: The notice was effective.
Lord President Clyde said: ‘In considering this matter, it is of importance to realise that in the present case the tenants were occupying under tacit relocation, in other words, that the tenancy was being prolonged from year to year beyond the stipulated term in the lease, but that otherwise the conditions in the lease continued to operate – see Rankine, Law of Leases, p. 601; Cowe v. Millar, reported only in Connell on The Agricultural Holdings (Scotland) Act 1923, p. 346, per Lord President Clyde at p. 355. The question comes to be whether, in that situation, a timeous notice by one of the two joint tenants is invalid to bring the tenancy to an end. The argument for the appellant was that a valid notice must be from both the joint tenants, and this notice, not being a joint one, consequently is bad.
But, is I see it, this argument overlooks the meaning and effect of tacit relocation. Tacit relocation is not an indefinite prolongation of a lease. It is the prolongation each year of the tenancy for a further one year, if the actings of the parties to the lease show that they are consenting to this prolongation. For, as in all contracts, a tacit relocation or reletting must be based on consent. In the case of tacit relocation the law implies that consent if all the parties are silent in the matter. Hence, where there are joint tenants, tacit consent by both of them is necessary to secure the prolongation and to enable tacit relocation to operate. Silence by both is necessary to presume that both the tenants wish the tenancy to continue for another year. On the other hand, if both are not silent, and if one gives due notice of termination, the consent necessary for tacit relocation to operate is demonstrably not present, and tacit relocation will not operate beyond the date of termination in the notice. Clearly, in the present case, there is not such tacit consent, and, in my view, a notice by one of the two joint tenants is enough to exclude the further operation of tacit relocation.

Judges:

Lord President Clyde, Lord Sorn

Citations:

1960 SC 249

Statutes:

Agricultural Holdings (Scotland) Act 1949

Cited by:

Cited – Hammersmith and Fulham London Borough Council v Monk HL 5-Dec-1991
One tenant of two joint tenants of a house left and was granted a new tenancy on condition that the existing one of the house, still occupied by her former partner, was determined. She gave a notice to quit as requested, the council claimed . .
Lists of cited by and citing cases may be incomplete.

Scotland, Landlord and Tenant

Updated: 10 May 2022; Ref: scu.272274

Porcelli v Strathclyde Regional Council: EAT 1985

A woman school technician was subjected to a campaign of sexual harassment by two fellow male non-managerial technicians. She sought a transfer.
Held: The real question was whether the sexual harassment was to the detriment of the applicant within section 6(2)(b). The claim of sex discrimination succeeded.
Lord McDonald said: ‘It was argued on behalf of the applicant that the words ‘subjecting her to any other detriment’ were so universal that they covered acts of sexual harassment committed against her during her employment, without reference to any consequences thereof so far as her employment was concerned. The mere fact that they had been committed automatically placed her employers, perhaps vicariously, in breach of section 6(2)(b) and section 1(1) of the Act of 1975.
We do not think this interpretation is correct. The Act of 1975 does not outlaw sexual harassment in the field of -employment or elsewhere. That is left to the common law in an appropriate case. What it does outlaw in the field of employment is discrimination against a woman within the terms of her contract of employment on the ground of her sex. In certain cases sexual harassment may be relevant in this connection. An employer who dismisses a female employee because she has resisted or ceased to be interested in his advances would, in our view, be in breach of section 6(2)(b) and section 1(1) of the Act of 1975 for reasons arising from sexual harassment. Similarly if, for the same reason, he takes other disciplinary action against her short of dismissal, he would also be in breach. This action could be suspension, warning, enforced transfer, etc., all of which would be to the detriment of the female employee although open to an employer under her contract of service in a genuine case not associated with sexual harassment.
If this is a correct interpretation of the statute we ask ourselves what detriment, if any, within her contract of employment, the applicant suffered in the present case. The answer, we feel, is not far to seek. It lies in the fact that on 4 August 1983 she felt obliged to seek transfer from Bellahouston Academy to another school, and this was duly granted with effect from 19 September 1983. The campaign of harassment, including sexual harassment, with the objective of making the applicant apply for transfer had succeeded.’

Judges:

Lord McDonald

Citations:

[1986] ICR 564, [1986] SC 137, [1985] ICR 1977

Statutes:

Sex Discrimination Act 1975 1(1)(a) 6(2)b)

Cited by:

Cited – De Souza v Automobile Association CA 19-Dec-1985
The claimant appealed against a finding that there had been no race discrimation in her case. She had overheard a manager refer to her as ‘the wog’. She said that this was sufficient to mean that she suffered a detriment. The employer replied that . .
Appeal from – Strathclyde Regional Council v Porcelli SCS 1986
Mrs Porcelli was employed as a science laboratory technician at a school in Glasgow. Two technicians in the same department pursued a vindictive campaign against her for the deliberate purpose of making her apply for a transfer to another school. . .
Cited – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment, Scotland

Updated: 10 May 2022; Ref: scu.270155

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 Sutherland: ‘I see no objection in principle to a clear admission being used in subsequent proceedings, even though the communication in which it appears is stated to be without prejudice.’ and ‘ ‘Without prejudice’ in my view means, without prejudice to the whole rights and pleas of the party making the statement. If, however, someone makes a clear and unequivocal admission or statement of fact, it is difficult to see what rights or pleas could be attached to such a statement or admission other than perhaps to deny the truth of the admission which was made. I see no objection in principle to a clear admission being used in subsequent proceedings, even though the communication in which it appears is stated to be without prejudice. I would adopt what is said by Lord Wylie in Watson-Towers and the Canadian view expressed in Kirschbaum.’

Judges:

Lord Sutherland

Citations:

1994 SLT 689

Citing:

Followed – Watson-Towers Ltd v McPhail 1986
The pursuer submitted a motion for summary judgment for the value of goods which had been supplied subject to a reservation of title clause. The pursuer’s evidence consisted of a letter from the defender making an offer expressed to be without . .
Followed – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .

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

Scotland, Contract

Updated: 10 May 2022; Ref: scu.243124

Alexander Ward and Co Ltd v Samyang Navigation Co Ltd: HL 1975

The House explained the distinction between an arrestment to found jurisdiction and an arrestment on the dependence. The purpose of the latter was to freeze the subject arrested in the hands of the common debtor or in the case of a ship to prevent her movement, in order to provide the pursuer with security for payment by the defender of such sum as he shall be found to owe. On the other hand arrestment jurisdictionis fundandae causa did not attach the property arrested. It merely attested to the fact that the ship was at the time within the jurisdiction and that notice had been given that it was the intention of the person using the diligence to raise an action founding on the jurisdiction which resulted from the property being within the country. As to the question whether the warrant to arrest to found jurisdiction with the procedure which followed on it, made up something separate from the action whose purpose they were to serve, so that, being spent, they could not be ratified, that was not the correct conclusion: ‘The fact that there is no nexus, the nexus having had but an ephemeral or rather momentary existence while the warrant was in the course of execution, does not mean that the juridical effect of the arrestment is likewise momentary and ephemeral.’

Judges:

Lord Kilbrandon

Citations:

1975 SC (HL) 26

Cited by:

Cited – Dramgate Ltd v Tyne Dock Engineering Ltd and others SCS 1-Oct-1999
. .
Cited – Thomas Dagg and Son Ltd v Taycove Limited Dickensian Property Co Ltd ScSf 20-Jan-2005
. .
Lists of cited by and citing cases may be incomplete.

Scotland, Transport

Updated: 09 May 2022; Ref: scu.224084

Barton v William Low and Co Ltd: 1968

The court was asked the question as to whether it was competent for a party who had been brought into the action under the third party procedure to challenge the relevancy of averments which the pursuer, who made no case against the third party, was seeking to incorporate in her pleadings as part of her case against the defenders.
Held: Lord Stott said: ‘The third parties have been convened into the process by the defenders, and the pursuer makes no case against them. The defenders, however, have set out in their pleadings what is, in effect, a right of relief against the third parties. The third parties have therefore a clear interest in the success or failure of the pursuer’s case against the defenders, and one of the objects of third party procedure, as I see it, is to enable the third parties to be heard on any matter in which they have a relevant interest in relation to the case between pursuer and defender. The question of whether the pursuer has made a competent or relevant case against the defenders is such a matter, and in my opinion the third parties are entitled to take a plea to the relevancy of the pursuer’s pleadings and to be heard upon that plea.’

Judges:

Lord Stott

Citations:

1968 SLT (Notes) 27

Cited by:

Cited – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Litigation Practice

Updated: 09 May 2022; Ref: scu.222550

Stobo v HM Advocate: HCJ 1993

Citations:

1993 SCCR 1105

Cited by:

Overruled – Smith v Lees HCJ 1997
Evidence of distress could not corroborate the carrying out of physical acts of indecent assault, though it can still be used to corroborate, in an appropriate case, evidence of a lack of consent on the part of the complainer to the accused’s . .
Cited – Paul Cullington v Her Majesty’s Advocate HCJ 25-Jun-1999
The defendant appealed his conviction for indecent assault. He challenged the use of evidence of distress as corroboration of an allegation that violence had been threatened or used.
Held: The appeal failed. There was no reason to distinguish . .
Lists of cited by and citing cases may be incomplete.

Crime, Scotland, Criminal Evidence

Updated: 09 May 2022; Ref: scu.220739

Kemp and Dougall v Darngavil Coal Co: 1909

A man cannot be charged with negligence if he has no obligation to exercise diligence.

Judges:

Lord Kinnear

Citations:

1909 S C 1314

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, Scotland

Updated: 09 May 2022; Ref: scu.197993

Pollok v Workman: 1900

A widow sought damages for an unauthorised post mortem carried out on her husband. The act was alleged to have been criminal and in the nature of an action of assythment.
Held: The case was competent, but was dismissed for other reasons.

Citations:

[1900] 2F 354

Jurisdiction:

Scotland

Cited by:

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

Wills and Probate, Scotland

Updated: 09 May 2022; Ref: scu.195013

Mullen v Barr and Co Ld, and M’Gowan v Barr and Co Ld: 1929

A mouse was found in a bottle. The buyer claimed damages for the shock: ‘In a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to members of the public for the condition of the contents of every bottle which issues from their works. It is obvious that, if such responsibility attached to the defenders, they might be called on to meet claims of damages which they could not possibly investigate or answer.’

Citations:

1929 SC 461

Cited by:

Overruled – 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.

Scotland, Negligence

Updated: 09 May 2022; Ref: scu.192602

The El Condado: SCS 1939

Lord Aitchison said: ‘The penal laws of foreign countries are strictly local, and affect nothing more than they can reach and can be seized by virtue of their authority; a fugitive who passes hither, comes with all his transitory rights; he may recover money held for his use, stock, obligations and the like; and cannot be affected in this country, by proceedings against him in that which he has left, beyond the limits of which such proceedings do not extend.
Does that rule apply equally to legislation which is not confiscatory or penal in the full sense, but the effect of which is to subject the owner of moveable property in his use and control of that property, to the overriding control of the State where, as in this case, the property is requisitioned by the State for public purposes? There is no direct authority upon the point. The nearest case is perhaps the Jupiter (No. 3), [1927] P. 122. It was there held that the nationalisation decrees of the Union of Socialist Soviet Republics did not operate on moveable property outside the territory of the Republic, whether such property belonged to a Russian citizen or not. It was a fact in that case that the Jupiter was not at the date when the decrees were promulgated within Russian territory. In this case it is expressly conceded that at the date of the requisition the El Condado was not within Spanish territorial waters and she was in the port of Greenock when the de facto possession was taken. In the Jupiter, Hill, J., pointed out that no distinction could be drawn between ships and other chattels and that the same principles were applicable to both, and he reached the conclusion that the decree of nationalisation was ineffectual to transfer the property in the ship, which was not within the jurisdiction at the date of the decree. His judgment both as regards fact and law was affirmed by the Court of Appeal.
The case is not on all fours, but in my opinion the principle of Hill J.’s, judgment applies to the present case. The test to be applied is this: Supposing the Spanish Consul, instead of taking possession of the El Condado brevi manu, had sued the owners in the Courts for the delivery of the ship, could the action have succeeded? I am satisfied it could not. It could no more have succeeded than an action for recovery of moneys belonging to the Spanish owners in a bank in this country and requisitioned for the temporary use of the Spanish Government to finance the war. The conclusive answer would be that it was moveable property that was outwith the territory and jurisdiction of the foreign Sovereign State, and having been so at the date of the decree, it was not capable of being affected by the requisition. That is the ground of the Lord Ordinary’s judgment, and in my opinion he was right in dismissing the action, because if no wrong was committed by the owners of the ship in respect that the Spanish Government had no lawful possession of her, notwithstanding that they could not be impleaded, no liability can attach to the defenders under their bond of caution.’

Lord Mackay: ‘The question of extra-territoriality arises doubly. It is for us a question to be decided on Scots law (in the absence of any averment of a differing Spanish law) whether we are to hold that a decree of a de jure Government (issued in Barcelona or Madrid) can have extra-territorial effect upon (a) a ship situated in our harbours and (b) registered and belonging to a company domiciled under General Franco’s de facto Government’s jurisdiction.
I am of opinion that such extraterritorial validity is not recognised by Scots law. The sealed document exhibited in the former case and lying before us bears in its terms to have ‘requisitioned’ all ships of certain registration. That means, in my opinion, by Scots law, that a requisition of full property was intended in the full sense of the word ‘requisition’ as so well known to our Courts during the years 1914 to 1918.
I am prepared to hold, therefore, that the pretended title of the pursuers was, in fact and in law bad; and that the original owner’s right of ownership was never lost or adversely affected. Hence, no judicial wrong was ever done to the pursuers. I agree on these fuller grounds with the results of the Lord Ordinary, and I agree we should adhere to his judgment.’
Lord Pitman:
‘Requisition is not a legal method in this country of transferring property or rights of user of property, except at the instance of the Crown. It is the prerogative of the Crown in times of imminent national danger to take any steps necessary to secure the defence of the realm, and in 1914 by virtue of that power regulations were made by His Majesty in Council providing (inter alia) for the requisitioning of ships by the competent naval authority. It would be strange, indeed, if a foreign State were allowed to exercise similar powers and by its officials take forcible possession of property requisitioned.’

Lord Wark:‘This means further that they must show that the decree of law enacted on June 28, 1937, was valid and effectual according to the law of the forum to which they applied, namely, Scotland, to entitle them to the possession and control of a ship lying in a Scottish port, and which admittedly at the date of the decree and continuously thereafter had been outwith Spanish territory and territorial waters. I say ‘according to the law of the forum,’ because they make no averments of Spanish law on that matter.
I agree with the Lord Ordinary and with your Lordships that the decree is of no effect outwith Spanish territory and territorial waters, and gave the pursuers no right to requisition the El Condado or to take forcible possession of her as they did. On such a matter as this there is no difference between the law of England and the law of Scotland, and the decisions of the English Courts to which the Lord Ordinary refers, especially the case of the Jupiter (No. 3), [1927] P. 122 and 250, appear to me to be sufficient authority to support his decision. I refer to the judgment of Hill, J., at pp. 138 and 144, and of Atkin, L.J., and Lawrence, L.J., in the Court of Appeal at p. 255. It is true that that case dealt with the question of transfer of property, but the ratio upon which it proceeds is that the decree of a foreign Government has no effect whatever upon moveable property, including ships, outwith the territory. This doctrine rests upon the principle that jurisdiction is limited by effectiveness. It is recognised in several recent cases, notably in Sedgwick, Collins and Co. v. Rossia Insurance Company of Petrograd [1926] 1 K.B. 1, by Sargant, L.J., at p. 15, and by the Lord Chancellor in that case in the House of Lords, [1927] A.C. 95, at p. 102, and in Russian Commercial and Industrial Commercial and Industrial Bank v. Comptoir d’Escompte de Mulhouse, andc. [1925] A.C. 112, by Lord Chancellor Cave at p. 125, and Viscount Finlay at p. 137. ‘A State’s authority,’ says Professor Dicey in his Introduction to his treatise on the Conflict of Laws, 5th ed., at p. 20, in the eyes of other States and the Courts that represent them is speaking very generally, coincident with, and limited by, its power. It is territorial. It may legislate for, and give judgments affecting, things and persons within its territory. It has no authority to legislate for, or adjudicate upon, things or persons (unless they are its subjects) not within its territory.’

Judges:

Lord Aitchison, Lord Mackay

Citations:

[1939] 63 L1L Rep 330

Cited by:

Cited – Peer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
Lists of cited by and citing cases may be incomplete.

Scotland, Jurisdiction

Updated: 09 May 2022; Ref: scu.186120

Lord Advocate v R W Forsyth Ltd: 1986

The taxpayer appealed his corporation tax assessments and had applied to a special commissioner for postponement of payment. The applications was to be heard in Glasgow, but for convenience it was heard in London, where it failed. The taxpayer then asked the High Court for judicial review of the postponment decisions. At the same time, the Crown had issued summonses in the Court of Session seeking payment of the tax due.
Held: The court granted a decree in favour of the Crown in both proceedings. The High Court had no jurisdiction in the matter. The decision of the special commissioner on a Scottish tax case, although sitting for administrative convenience in London, remained subject to the supervisory jurisdiction of the Scottish court. Confusion could result if more than one court had jurisdiction.

Judges:

Lord Wylie

Citations:

(1986) 61 TC 1

Jurisdiction:

Scotland

Cited by:

Cited – Tehrani v Secretary of State for the Home Department HL 18-Oct-2006
The House was asked whether an asylum applicant whose original application was determined in Scotland, but his application for leave to appeal rejected in London, should apply to challenge those decisions in London or in Scotland.
Held: Such . .
Lists of cited by and citing cases may be incomplete.

Corporation Tax, Scotland, Jurisdiction

Updated: 09 May 2022; Ref: scu.245384

Hay and Kyd v Caledonian Railway Co: SCS 8 Dec 1887

A firm of auctioneers sold some cattle to a customer, to whom in the usual course of their dealings they gave a week’s credit, and booked them to be conveyed by a railway company to the buyer. The account-sale bore that the sale was for cash, and the buyer was at the time in debt to the sellers for previous transactions. This debt was considerably reduced the day after the sale, but the sellers determined not to deliver the cattle in question without payment. They accordingly, upon the same day, cancelled the invoice, and re-booked the cattle to the same destination, but sent one of their servants to take possession of them. A telegram was at the same time sent by the officials of the railway company to the place of destination with instructions that delivery was on no account to be made to the buyer’s servant. The railway company disregarded these instructions, and delivered the cattle to the buyer’s servant. The auctioneers’ servant met the buyer the same day that he had got the cattle, and it was arranged that the latter should meet the former later in the day, and make payment to him. The auctioneers’ servant did not assent to the buyer selling the cattle, nor had he authority to give such consent. The buyer sold the cattle, and failed to pay anything to the auctioneers. The latter then raised an action of damages against the railway company for breach of contract and wrongous delivery. Held (1) that the sellers were entitled as undivested owners to retain the cattle in order to secure the balance due to them by the buyer on previous transactions; (2) that the railway company had been guilty of a breach of contract in disregarding the sellers’ instructions as to the delivery of the cattle; (3) that this breach of contract had not been condoned by the actings of the sellers’ agent; and therefore (4) that the railway company were liable for the price of the cattle.

Citations:

[1887] SLR 25 – 132

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 09 May 2022; Ref: scu.614673

Short’s Trustee v Keeper of the Registers of Scotland: IHCS 30 Dec 1993

Trustee may not register decree but can seek to have register amended.

Citations:

Times 30-Dec-1993

Jurisdiction:

Scotland

Cited by:

Appeal from – Short’s Trustee v The Keeper of the Registers of Scotland HL 7-Dec-1995
The limited scope for rectification of registered land titles was explained. If the Keeper were to recognise an error of a very minor nature, such as an obvious spelling mistake, he would amend it at his own hand. However, he would not adjust a . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Registered Land, Scotland

Updated: 09 May 2022; Ref: scu.89245

Kyd (Gorrie’s Trustee) v Gorrie: SCS 25 Jun 1890

A father, in the knowledge that he was insolvent, granted a lease of a shop to his son at a yearly rent of pounds 7. It was proved that the fair rent was pounds 12. In terms of the lease the son had expended about pounds 12 in repairs, and it was admitted that he had no claim against his father for repayment of this sum. Held that the lease fell to be reduced under the Act 1621, cap. 18.

Citations:

[1890] SLR 27 – 834, (1890) 17 R 1051

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – MacDonald and Another v Carnbroe Estates Ltd SC 4-Dec-2019
‘This appeal concerns the Scots law of gratuitous alienations on insolvency. It raises three principal questions. First, there is a question as to the interpretation of the term ‘adequate consideration’ in section 242(4)(b) of the Insolvency Act . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 09 May 2022; Ref: scu.613985

Liquidators of Grampian Maclennan’s Distribution Services Ltd Reclaiming Motion By, v Carnbroe Estates Ltd: SCS 23 Jan 2018

First Division, Inner House, Court of Session – allegation of sale at an undervalue. The liquidator appealed a finding that as a speedy sale was required the sale price was proper.
Held: The reclaiming notice was allowed. The sale of the company’s main place of business would not lead to a recovery. A person, once he or she became insolvent, owed a fiduciary duty to have regard to the interests of his or her creditors and as a result, if a debtor alienates property once he or she is insolvent, he or she must obtain full consideration for the property alienated. When an insolvent trading entity’s business was about to come to an end, there was no need to maintain liquidity and the paramount importance of the interests of the creditors prevailed over any need to pay debts as they fall due, and: ‘For these reasons we are of opinion that the need for a forced sale to provide immediate liquidity is not normally a factor that should be taken into account in determining the adequacy of consideration obtained for a sale of the debtor’s assets in any case where the debtor has ceased business or is about to cease business.’

Judges:

Lord President Lord Drummond Young Lord Malcolm

Citations:

[2018] ScotCS CSIH – 7, 2018 GWD 4-69, 2018 SCLR 532, 2018 SC 314, 2018 SLT 205, [2018] BPIR 461

Links:

Bailii

Statutes:

Insolvency Act 1986 242(4)(b)

Jurisdiction:

Scotland

Citing:

Appeal from – Macdonald and Others v Carnbroe Estates Ltd SCS 18-Jan-2017
(Outer House) Allegation of sale at an undervalue – Carnbroe had established that the sale of the Property was made for adequate consideration. Lord Woolman recorded the submission which counsel made on behalf of Carnbroe that Grampian was fighting . .

Cited by:

At inner house – MacDonald and Another v Carnbroe Estates Ltd SC 4-Dec-2019
‘This appeal concerns the Scots law of gratuitous alienations on insolvency. It raises three principal questions. First, there is a question as to the interpretation of the term ‘adequate consideration’ in section 242(4)(b) of the Insolvency Act . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 09 May 2022; Ref: scu.605898

Hay and Kyd v Powrie: SCS 19 Mar 1886

The pursuers were in the habit of selling cattle to A, and taking in payment the joint acceptances of the defender and him at two or three months. These acceptances were renewed again for similar periods, and generally for less amounts, the difference being paid by A in cash either at the time of the renewal or shortly after. If it was not paid at the time, the pursuers debited A’s account in their books with it, and retained the old acceptance till it was paid. All communications betwixt the pursuers and the defender took place through A, for whom the defender was really a cautioner. On A’s bankruptcy the defender retired three of the acceptances, each of which was the last of a series of renewals, but the pursuers also claimed from him the differences between the amounts in certain acceptances and the acceptances by which they were renewed. They had in each of these cases retained the old acceptance till A should fulfil his promise to pay the difference. Held that the obligations in the old acceptances were not extinguished by novation or delegation; that there was no such giving of time to A as to free the defender, even if he were entitled to the equities of a cautioner; and that the pursuers were not barred from suing on the bills by the fact that the defender in accepting the renewals believed that to the extent of the differences in the amounts of them, and of the acceptances sued on, the pursuers’ claim had been reduced.

Citations:

[1886] SLR 23 – 567

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 09 May 2022; Ref: scu.580012

Kadir, Re Judicial Review: SCS 18 Jan 2017

Judicial review of a decision by the Secretary of State for the Home Department to certify the petitioner’s asylum and human rights claims as clearly unfounded in terms of section 94 of the Nationality, Immigration and Asylum Act 2002.

Citations:

[2017] ScotCS CSOH – 3

Links:

Bailii

Jurisdiction:

Scotland

Immigration

Updated: 09 May 2022; Ref: scu.578155

Macdonald and Others v Carnbroe Estates Ltd: SCS 18 Jan 2017

(Outer House) Allegation of sale at an undervalue – Carnbroe had established that the sale of the Property was made for adequate consideration. Lord Woolman recorded the submission which counsel made on behalf of Carnbroe that Grampian was fighting for its survival and that Mr Quinn had to make a quick decision. He continued: ‘While the purchase price fell short of the open market value, Grampian had very limited options. It was in a perilous financial position. It could not afford the leisure of a lengthy marketing period. NatWest was threatening to call up the standard security and to use other diligence against it in terms of the bond and floating charge it held. There was no other offer on the table. The earlier expressions of interest were just that. There was no solid proposal to accept.
Carnbroe’s offer presented an opportunity to obtain a quick sale. To place the property on the open market would have involved significant expense. There would have been advertising costs and an estate agency fee of 1% to 1.5%. There was no clear indication that a sale would be achieved within the standard marketing period of 12 to 24 months. According to the surveyors’ evidence, a stigma can attach to a property that remains on the market too long. It might be the subject of vandalism.’
He went on the state that Mr Quinn and Mr Gaffney were not ‘associates’ in terms of the relevant legislative definition, but their long business relationship justified close scrutiny of the transaction. The expert surveyors had agreed that a price of pounds 550,000 was not inappropriate if the Property had been marketed on a closed basis for six months.

Judges:

Lord Woolman

Citations:

[2017] ScotCS CSOH – 8

Links:

Bailii

Statutes:

Insolvency Act 1986 242(4)(b)

Jurisdiction:

Scotland

Cited by:

Appeal from – Liquidators of Grampian Maclennan’s Distribution Services Ltd Reclaiming Motion By, v Carnbroe Estates Ltd SCS 23-Jan-2018
First Division, Inner House, Court of Session – allegation of sale at an undervalue. The liquidator appealed a finding that as a speedy sale was required the sale price was proper.
Held: The reclaiming notice was allowed. The sale of the . .
At Outer House – MacDonald and Another v Carnbroe Estates Ltd SC 4-Dec-2019
‘This appeal concerns the Scots law of gratuitous alienations on insolvency. It raises three principal questions. First, there is a question as to the interpretation of the term ‘adequate consideration’ in section 242(4)(b) of the Insolvency Act . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 09 May 2022; Ref: scu.578157

Normand v Lucas: 1993

A lady had fallen in the street and was sitting on a wall when the appellant appeared, along with a small Jack Russell dog. The lady who had fallen encouraged the dog to sit on her knee whilst she was on the wall. She leaned forward and the dog unexpectedly bit her face. Her husband left the scene to summon help from a relative, along with an ambulance. Other individuals appeared on the scene and at the stage when the injured lady was being put into the ambulance the dog bit someone else.
Held: The Court noted that while there may not have been evidence from which the sheriff could have inferred that the dog was dangerously out of control when it bit the first lady by the stage of the subsequent bite ‘there was material upon which the sheriff could have inferred that there were grounds for reasonable apprehension that the dog would injure someone’.

Citations:

1993 GWD 15-975

Jurisdiction:

England and Wales

Cited by:

Cited – Tierney v Valentine 1994
A Boxer dog had attacked and bitten two children on a swing in a children’s play park. The court found that the dog which was in the charge of the appellant entered the play area. It was not on a lead. It approached the swings and circled round them . .
Cited – Thomson v Procurator Fiscal, Peterhead HCJ 16-Dec-2009
The defendant appealed against her conviction for having her dog dangerously out of control in a public place. She said there had been insufficient evidence to justify the finding. The dog was said to had attacked and bitten another dog, and then . .
Lists of cited by and citing cases may be incomplete.

Scotland, Animals, Crime

Updated: 08 May 2022; Ref: scu.503462

Tahir v Tahir: SCS 1993

The court was asked as to the recognition of a divorce decree from Pakistam.
Held: Lord Sutherland observed: ‘What I have to look at is the decree which was pronounced in Pakistan. It would be contrary to public policy to recognise it, according to Choudhary, if both the motive and the effect were to deprive the pursuer of her rights in Scotland. That however is not the position because her rights are preserved under section 28 of the 1984 Act. There can therefore, in my view, be no public policy objection to written recognition of this divorce based on deprivation of the pursuer’s financial rights. As I understood the submission made to me, it was only on the basis that she would be deprived of such rights that it was argued that there was a public policy objection to recognition.’

Judges:

Lord Sutherland

Citations:

(1993) SLT 194

Jurisdiction:

England and Wales

Scotland, International, Family

Updated: 08 May 2022; Ref: scu.450576

Garscadden v Ardrossan Dry Dock Co: 1910

The court ordered the lifting of a lien subject to consignation. The right of retention is not the assertion of an absolute right.

Judges:

Lord Ardwall

Citations:

1910 SC 178

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.

Scotland

Updated: 08 May 2022; Ref: scu.410705

Carr v British International Helicopter: EAT 1993

An employee claimed re-instatement following alleged unfair selection for redundancy by an administrator.
Held: The effect of the 1986 Act was not that proceedings brought against a company in administration without consent or the permission of the court were a nullity, but only that they were liable to be stayed as other proceedings in section 11(3)(d). Lord Coulsfield said: ‘It seems to us that there is no way of construing section 11 so as to exclude from its scope claims under the employment protection legislation.’

Judges:

Lord Coulsfield

Citations:

[1994] ICR 18, [1993] BCC 855, [1994] 2 BCLC 474

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 188, Insolvency Act 1986 11(3)(d)

Jurisdiction:

England and Wales

Cited by:

Applied – Unite the Union and others v Sayers Confectioners Ltd EAT 9-Feb-2009
EAT PRACTICE AND PROCEDURE Application/claim
Tribunal wrong to refuse to accept complaint presented against company in administration – correct course to accept the complaint but stay it – Carr v British . .
Lists of cited by and citing cases may be incomplete.

Employment, Insolvency, Scotland

Updated: 07 May 2022; Ref: scu.316668

Mackie v Dundee City Council: 2001

A dining hall table being moved by a caretaker was held to be work equipment.

Citations:

[2001] Rep LR 62

Jurisdiction:

England and Wales

Cited by:

Cited – Spencer-Franks v Kellogg Brown and Root Ltd and others HL 2-Jul-2008
The deceased worked for the defendants on an oil rig. He was injured by a door closer he was attempting to repair. The defendants denied that the mechanism was equipment within the Regulations.
Held: The appeal was allowed. The door closer was . .
Lists of cited by and citing cases may be incomplete.

Health and Safety, Scotland

Updated: 07 May 2022; Ref: scu.270710

McIntyre v Armitage Shanks Ltd: HL 1980

A workman contracted pneomoconiosis and knew all the relevant facts but was advised by the local secretary of his trade union that he could not sue. His later claim was met by a defence of limtation.
Held: The action was time barred.

Citations:

1980 SC (HL) 46

Jurisdiction:

England and Wales

Cited by:

Cited – Bowden v Poor Sisters of Nazareth and others and similar HL 21-May-2008
The appellants said they had suffered abuse while resident at children’s homes run by the respondents. The respondents denied the allegations and said that they were also out of time. The claims were brought many years after the events.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Limitation

Updated: 07 May 2022; Ref: scu.267965

Frew v Field Packaging Scotland Ltd: 1994

Rule 21.2(4) gives the court a power to grant the motion, but does not require it to do so where it would not be appropriate in all the circumstances

Judges:

Lord Prosser

Citations:

1994 SLT 1193

Statutes:

Rules of the Court of Session

Cited by:

Cited – Henderson v 3052775 Nova Scotia Ltd HL 10-May-2006
The liquidator had sought to set aside a transfer of company property as having been made at an undervalue. The defence was that the buyer had assumed some of the company’s debt in addition, and in effect that it was a preference on other creditors. . .
Lists of cited by and citing cases may be incomplete.

Scotland, Litigation Practice

Updated: 07 May 2022; Ref: scu.241640

Percy v Corporation of Glasgow: HL 1922

A pursuer’s averment, in what appeared to be a claim at common law arising out an alleged breach by employees of a Scottish corporation’s bye-laws and regulations, should be allowed to proceed to trial.

Citations:

[1922] 2 AC 299

Jurisdiction:

England and Wales

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

Scotland, Vicarious Liability

Updated: 07 May 2022; Ref: scu.241426

Rollo v HM Advocate: 1997

The court discussed the nature of a document as applied to an electronic notebook seized under the 1971 Act: ‘It seems to us that the essential essence of a document is that it is something containing recorded information of some sort. It does not matter if, to be meaningful, the information requires to be processed in some way such as translation, decoding or electronic retrieval’.

Judges:

Lord Mulligan

Citations:

[1997] Scots Law Times 958

Statutes:

Misuse of Drugs Act 1971 23(3)(b)

Cited by:

Cited – Victor Chandler International v Commissioners of Customs and Excise and another CA 8-Mar-2000
A teletext page can be a document for gaming licensing purposes. A bookmaker sought to advertise his services via a teletext page. His services were not licensed in this country, but the advertisements were. It was held that despite the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice

Updated: 07 May 2022; Ref: scu.235707