Category: Scotland

Stewart v Watson: 1864

An irritancy clause taking effect on the sequestration of a tenant was lawful and, in contradistinction to a legal irritancy, could not be purged.

Citations:

(1864) 2 M 1414

Cited by:

Cited – Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd (Scotland) HL 16-Jul-1998
(Scotland) The appellants sought compensation under the law of unjustified enrichment for losses sustained as a result of the exercise against them of a conventional irritancy.
Held: Where a landlord recovered possession of land under lease by . .
Lists of cited by and citing cases may be incomplete.

Scotland, Landlord and Tenant

Updated: 30 April 2022; Ref: scu.234728

Chalmer’s Trustee v Dick’s Trustee: 1909

The enforcement of an irritancy clause in an agricultural lease had deprived the tenants of all property in the crops growing at the time when the leases were terminated.

Citations:

1909 SC 761

Cited by:

Cited – Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd (Scotland) HL 16-Jul-1998
(Scotland) The appellants sought compensation under the law of unjustified enrichment for losses sustained as a result of the exercise against them of a conventional irritancy.
Held: Where a landlord recovered possession of land under lease by . .
Lists of cited by and citing cases may be incomplete.

Scotland, Landlord and Tenant

Updated: 30 April 2022; Ref: scu.234727

Farleyer Estates v Secretary of State for Scotland: IHCS 1992

An Enforcement Notice alleged unauthorised use of land as a timber storage and transfer area. The land so used was 1500 metres from forestry plantations. The appellant argued that it was concerned with ‘the use of land for the purposes of forestry’ and that therefore development was not involved. This was rejected by the reporter on the grounds that the land against which the Enforcement Notice was directed was so physically divorced from the forest that he could not regard it as ‘an operation or use ancillary to forestry and I consider it rather to be a use of industrial character’.
Held: ‘The cultivating of forests and the management of growing timber would include the felling of trees and the extraction of the timber from plantations. There would be little point in cultivating or managing forests unless the fruits of the operation in the sense of the felled timber were to be taken away from the plantation for commercial purposes. Accordingly, we are satisfied that the extraction of timber is included in the general term forestry. . . . In the light of the findings which the reporter has made in the present case, it is plain that, if timber were to be extracted from these plantations, there was no alternative to the movement of timber on the road through the village and that the use of the subjects described in the Enforcement Notice for stock piling timber extracted from the forest and transferring it onto the lorries was functionally essential to the running of these plantations commercially. That being so, we are satisfied that at the material time the subjects referred to in the Enforcement Notice were being used for the purposes of forestry. …….. In our opinion it does not matter that the subject s referred to in the Enforcement Notice were situated some 1500 metres from the plantations; what is important is not the fact that the subjects were physically divorced from the plantation but the use to which the subjects were being put.’

Citations:

[1992] 2PLR 123

Statutes:

Town and Country Planning (Scotland) Act 1972

Cited by:

Cited – Millington v Secretary of State for Environment Transport and Regions v Shrewsbury and Atcham Borough Council CA 25-Jun-1999
The fact that a new product was made on agricultural land from produce grown elsewhere on the land did not make that production process non-agricultural. The making of wine is capable of being agricultural use, and being thus free from planning . .
Lists of cited by and citing cases may be incomplete.

Planning, Scotland

Updated: 30 April 2022; Ref: scu.229044

Brixey v Lynas: 1994

‘However difficult it may be, the Court must as we have mentioned take a long term view in relation to the interests of a child. We agree with what is said in Wilkinson at page 212 (Wilkinson and Norrie: The Law Relating to Parent and Child in Scotland) that ‘although custody decisions, in contrast with adoption orders, are in principle readily open to review, a custody order once made is in practice and for good reason, usually very difficult to disturb and that the Court should take a long view rather than be influenced by transient considerations applicable only to the early years of a child’s life”.

Citations:

Ind Summary 22-Nov-1993, 1994 SC 606

Cited by:

Appeal from – Brixey v Lynas HL 2-Jul-1996
Delay after a hearing will increase the reluctance of an appellate court to interfere with the decision of a court on the evidence. . .
Lists of cited by and citing cases may be incomplete.

Scotland, Children

Updated: 30 April 2022; Ref: scu.229105

Stewart v H M Advocate: HCJ 1980

The court re-affirmed the general rule of practice, that where the Crown sets out to prove that a particular person is the perpetrator of a crime the identification of the accused as its perpetrator must not be left to implication.

Judges:

Lord Justice General Emslie

Citations:

1980 SLT 245

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: 30 April 2022; Ref: scu.225520

Bruce v H M Advocate: HCJ 1936

Several witnesses who were asked to speak to certain facts in connection with the indictment spoke of ‘the accused James Bruce’. But they were not asked directly to identify in court the person to whom they were referring in their evidence.
Held: The identification of the accused by witnesses who are speaking to the facts should, in every case, be a matter of careful and express question on the part of the prosecutor.

Judges:

Lord Wark

Citations:

1936 JC 93

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: 30 April 2022; Ref: scu.225519

Constanda v M: SCS 1977

The child had been referred to a children’s hearing on the basis that he was exposed to moral danger in terms of section 32(2)(b).
Held: As the whole substratum of the ground of referral was that the child had performed certain acts which constituted criminal offences, the commission of the offences had to be proved to the criminal standard. This was despite the fact that the proceedings before the sheriff were civil proceedings, and in the absence of any rule laid down by the Act which required the criminal standard to be applied in any case other than where the child had been referred under section 32(2)(g) on the ground that he had committed an offence.

Citations:

1997 SC 217

Statutes:

Social Work (Scotland) Act 1968 32(2)(b)

Cited by:

Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Lists of cited by and citing cases may be incomplete.

Scotland, Children

Updated: 30 April 2022; Ref: scu.224366

McGregor v D: 1977

With regard to proceedings under the 1968 Act, in no sense were these proceedings criminal proceedings. They were on the contrary civil proceedings sui generis. Where the ground of referral is that the child has committed an offence and the sheriff is asked to consider whether this ground has been established under section 68 of the 1995 Act, the standard of proof which must be applied is that which is required in criminal procedure: section 68(3)(b). The Civil Evidence (Scotland) Act 1988 provides for the abolition of corroboration and the admission of hearsay evidence in civil proceedings. But section 9 of that Act excepts from the definition of ‘civil proceedings’ for the purposes of that Act any hearing by a sheriff of an application under what is now Part II of the Children (Scotland) Act 1995 where the ground of referral was that the child has committed an offence. Nevertheless, the proceedings which Parliament has laid down for the determination of these applications by the sheriff is civil procedure.

Judges:

Lord President Emslie

Citations:

1977 SC 330

Statutes:

Social Work (Scotland) Act 1968

Cited by:

Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Lists of cited by and citing cases may be incomplete.

Scotland, Evidence

Updated: 30 April 2022; Ref: scu.224365

Colquhoun’s Trustees v Marchioness of Lorne’s Trustee: 1990

Citations:

1990 SLT 34

Jurisdiction:

Scotland

Cited by:

Cited – McDowall v Inland Revenue SCIT 26-Jun-2003
Gifts had been made from an estate, purportedly under a power of attorney. During his lifetime, the deceased had made various gifts to his children. As he begand to suffer Alzheimers, he gave a power of attorney. He had substantial assets, well . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 30 April 2022; Ref: scu.224086

The Ferguson Bequest Fund Case: 1879

The court was asked to look at the sharing of an income stream where a testator intended to benefit a number of voluntary churches.
Held: The court gave useful guidance as to options available when competing bodies were deemed still to be under the umbrella of the intention of the trust.
Lord President Inglis said: ‘. . Where two parties, in the position of those now before us, each claim exclusive right to the property of the religious association to which they both originally belonged it is sometimes impossible to decide the question of property so raised without inquiring which party has adhered to and which has departed from the doctrines and rules of the association. And the same occurs where a particular congregation, having separated itself from the rest of the body, claims to retain the buildings or other property occupied by the congregation, but held on titles permanently connecting the property with the society or church, and justifies its separation on the ground that the majority of the body have renounced or departed from the articles of belief or general laws which formed the bond of union. In such cases it must be observed that the claim is based on allegations of breach of contract, that the subject in dispute is matter of civil and patrimonial right, and that the court cannot decide that question of right without reading and interpreting the contract which imposes on the members adherence to particular doctrines, laws, or usages as conditions of membership of the association …’

Judges:

Lord Shand, Lord President Inglis

Citations:

(1879) 6 R 486

Cited by:

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

Scotland, Trusts, Ecclesiastical

Updated: 30 April 2022; Ref: scu.223941

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 doctrine of predestination and the Establishment Principle (concerning the right and duty of the state to establish and maintain the Christian Faith). The minority were found to be the true Free Church, and were awarded all the assets. The question was not as to the relative sizes of the groups but which group adhered most faithfully to the fundamental tenets of the Free Church. The court was entitled to look at all relevant and credible material expository of the original principles.

Citations:

[1904] AC 515

Jurisdiction:

England and Wales

Citing:

Appeal from – 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. . .

Cited by:

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

Scotland

Updated: 30 April 2022; Ref: scu.223935

Brentnall v Free Presbyterian Church of Scotland: 1986

Judges:

Lord Justice-Clerk

Citations:

1986 SLT 471

Cited by:

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

Scotland, Ecclesiastical

Updated: 30 April 2022; Ref: scu.223943

Kildrummy (Jersey) Ltd v Inland Revenue Commissioners: IHCS 1990

It was not possible in Scottish law for a man to grant a lease to a nominee for himself: (Lord Hope) ‘I have, as I have said, no difficulty in the concept by which the title to property and the beneficial interest are separated, the title being held by a nominee. There is no reason to doubt the efficacy of this arrangement where the property in question has some independent existence of its own… But I know of no case, and none was cited to us, where it has been held that a nominee may contract with his principal so as to create new rights and obligations involving no third party whatever which are to be held only upon his principal’s behalf. That seems to me to conflict with the principle that a man cannot contract with himself…. ‘ and ‘The whole basis of a contractual obligation is the agreement of two or more parties as to the act or thing to be done. This is as true of a lease as it is of any other kind of contract. It is impossible to conceive of a lease by a man in his own favour. The essence of a lease lies in the tenant’s right to exclusive possession of the subject let, and the landlord’s obligation to put and maintain him in that possession. I do not see how a man can contract with his own nominee to the effect that his own nominee is to be entitled to that exclusive possession against himself, this to be held for his own behoof. The truth of the matter is that the separate interests of landlord and tenant are incapable of creation by such an arrangement’ Lord Clyde: ‘But where the same person is both debtor and creditor in the same matter there can be no obligation created. It is in my view ineffective to enter into a contract with continuing mutual rights and obligations with oneself and it is whimsical to grant a lease of one’s own property to oneself (see Grey v Ellison ((1856) 1 Giff 438, 65 ER 990)). To attempt to grant a lease to a nominee for oneself seems to me a similarly barren exercise’. Lord Sutherland: ‘A contract of lease…involves the creation of mutual rights and obligations which can only be given any meaning if the contract is between two independent parties. [The nominees] had no interest of their own to enter into such a contract, any rights and obligations accruing thereunder being exercisable only as nominees for [the principals]. Under a normal lease the landlords cede occupation of the property to the tenants in return for certain obligations, but if the tenants are in fact mere nominees of the landlords the whole lease becomes a pure fiction. Accordingly, in the special circumstances of this case I am of the opinion that the purported lease is not a contract to which the law can give effect and must be treated as a nullity.’

Judges:

Lord President (Lord Hope) and Lords Sutherland and Clyde

Citations:

[1990] STC 657

Citing:

Cited – Henderson v Astwood PC 1894
A sale was undertaken by a mortgagee, ostensibly to a third party but in reality to his nominee. The land was conveyed by the mortgagee to his nominee, who executed a declaration that he held the land in trust for the mortgagee, and who subsequently . .
Cited – Greyv Ellison 1856
A policy of insurance was created in which one department of an insurance company purported to effect a contract with another department of the same company. Although different individuals were parties to the contract, they all contracted as agents . .

Cited by:

Cited – Ingram and Another v Inland Revenue Commissioners ChD 23-May-1995
Lady Ingram had first conveyed properties to her solicitor who on the next day let the properties back to her, and on the day after conveyed the freehold of the properties to her family.
Held: The leases in favour of Lady Ingram, having been . .
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: . .
Cited – Ingram and Another v Commissioners of Inland Revenue HL 10-Dec-1998
To protect her estate from Inheritance Tax, the deceased gave land to her solicitor, but then took back a lease. The solicitor then conveyed the land on freehold on to members of her family.
Held: The lease-back by the nominee was not void as . .
Lists of cited by and citing cases may be incomplete.

Inheritance Tax, Scotland, Landlord and Tenant

Updated: 30 April 2022; Ref: scu.223755

Macleay v Macdonald: IHCS 1928

When an interlocutor is reclaimed against, the effect from the time the reclaiming motion is marked is to sist, or stay, all execution on the decree which has been pronounced in the Outer House until the reclaiming motion has been determined: rule 38.8.

Judges:

Lord Anderson

Citations:

1928 SC 776

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: 30 April 2022; Ref: scu.222551

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 conduct and the use of force by him.

Citations:

1997 SCCR 139

Citing:

Overruled – Stobo v HM Advocate HCJ 1993
. .

Cited by:

Applied – 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.

Scotland, Criminal Evidence

Updated: 30 April 2022; Ref: scu.220738

Graham v Marshall Food Group Ltd: OHCS 1998

The pursuer sought damages after a tripping accident in which the pursuer sustained bruising of her buttock and ligamentous and muscular strain involving the lumbar and lumbo-sacral region of the spine and the left shoulder joint. The pain in her shoulder resolved after about nine months, and her lower back pain only occasionally recurred by the date of the proof, some two and half years after the accident. There was no question of any adjustment disorder or other psychological consequences.

Citations:

1998 SLT 1448

Cited by:

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

Scotland, Personal Injury

Updated: 30 April 2022; Ref: scu.200619

Munro v Anderson-Grice Engineering Co Ltd: 1983

An action was raised in 1980 for damages for vibration white finger in which exposure had ceased in 1973. In early 1974 the pursuer had been advised by his solicitors that a claim against the defenders was unlikely to succeed. The pursuer argued that he had acted reasonably by accepting the advice of his solicitor in 1974 and that it was equitable to allow the action to proceed. The defenders argued that there was no explanation why, having decided not to proceed in 1974, the pursuer had raised the action in 1980.
Held: The court refused to exercise his discretion in favour of allowing the pursuer to bring the action out of time: ‘In my opinion however it does not follow that because at some stage within the triennium a pursuer has taken a reasonable course of action which results in a failure to raise an action timeously, that it must be considered equitable to allow him to proceed with an action after the expiry of the three year limitation period. … No doubt the reasonableness of the pursuer’s actings will have a bearing on the equities, but for the latter to be properly considered by the court circumstances beyond those averred by the pursuer in this case are required’.

Judges:

Lord Grieve

Citations:

1983 SLT 295

Cited by:

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

Scotland, Personal Injury, Limitation

Updated: 30 April 2022; Ref: scu.200275

Clark v McLean: IHCS 1994

A female pursuer was involved in a road traffic accident caused by her boyfriend. She brought an action against him one year after the expiry of the triennium (which had begun to run when she reached the age of 18 in 1984). An action of damages which she had raised against her former solicitors for professional negligence had been sisted pending the outcome of the action against her boyfriend. The Temporary Lord Ordinary, on being moved to allow the action to be brought under section 19A, allowed a proof before answer, leaving all pleas standing.
Held: ‘The onus being on the pursuer to satisfy the court that the terms of section 19A(1) should be applied, the court must first determine whether the pursuer’s case in relation to the application of that section is relevant. If the case is relevant, the court must consider whether or not there is sufficient agreement between the parties on the material facts for it to decide upon the applicability of the section. If there is not, then … the court should allow a preliminary proof on these facts. If, on the other hand, there is sufficient agreement on the material facts, then the court must proceed to adjudicate upon the application of section 19A(1). In our view, it should seldom be necessary for the court, in an action of damages for personal injuries involving only two parties, to allow a proof with all pleas standing, including those relating to the question of time bar and those relating to the merits of the action.’

Judges:

Lord MacLean

Citations:

1994 SC 410

Cited by:

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

Scotland, Limitation, Equity

Updated: 30 April 2022; Ref: scu.200281

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 December 1977 to say that the matter was in the hands of his insurers. The insurers stated that they knew nothing of the claim until a letter in May 1980.

Citations:

1983 SLT 441

Citing:

Applied – 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 . .

Cited by:

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

Scotland, Limitation

Updated: 30 April 2022; Ref: scu.200276

King v Eaton Ltd (No 2): IHCS 1998

Employees were made redundant. The tribunal held the dismissals to be unfair because that there had been no consultation worthy of the name with any of the employees and because it was impossible to decide whether the selection criteria had been fairly applied in the absence of evidence from those who had made the relevant markings when assessing employees for redundancy. The EAT upheld the employer’s appeal on the ground that although there had been no individual consultation there had been extensive consultation with the unions. The Court of Session allowed the employees’ appeals and remitted the cases to the Employment Tribunal to consider remedy. The employers then sought to lead additional evidence to show that the employees would still have been dismissed even if a fair procedure had been followed and that, accordingly, compensation should be reduced in accordance with the principle identified in Polkey. The employers request was denied, and they appealed.
Held: The appeal was dismissed.
Lord Prosser said: ‘We are not persuaded that the various expressions of opinion to be found in previous cases are as difficult to reconcile as may be suggested, or as may have been thought when some of these opinions were expressed. If one reads the whole of the final paragraph of the opinion delivered by Lord Coulsfield in Steel Stockholders (Birmingham) Ltd, it seems to us that he appreciates that the word ‘procedural’ does not reflect some precisely identifiable category, far less that it represents a category which would be precisely defined in all cases without enquiry into the facts. In broad terms, it appears to us that there will be situations where one can say that what went wrong was ‘merely’ procedural. Equally, in broad terms, it appears to us that there will be situations where once can say that an employee has been deprived of ‘something of substantive importance’ to use a phrase of Lord Coulsfield’s. We see no need to discard entirely terminology of this kind; and whilst in many cases it may be inappropriate to allocate the particular facts to either category, or to do so without enquiry, it seems to us that a distinction between the ‘merely ‘ procedural, and the more genuinely ‘substantive’ will often be of some practical use, in considering whether it is realistic, or practicable, or indeed ‘just and equitable’ to embark upon an attempt to construct a hypothesis, enabling one to assess what would have happened, if only it had. If there has been a ‘merely’ procedural lapse or omission, it may be straightforward to envisage what the course of events would have been if procedures had stayed on track. If, on the other hand, what went wrong was more fundamental, or ‘substantive’, and seems to have gone ‘to the heart of the matter’, it may well be difficult to envisage what track one would be on, in the hypothetical situation of the unfairness not having occurred. It seems to us that the matter will be one of impression and judgment, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure made no difference, or whether the failure was such that one cannot sensibly reconstruct the world as it might have been. It does not seem to us that there is anything very wrong in using the word ‘substantive’ in connection with this latter situation.’

Judges:

Lord Prosser

Citations:

[1998] IRLR 686

Citing:

Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Steel Stockholders (Birmingham) Ltd v Kirkwood EAT 1993
The tribunal considered the use of the word ‘procedural’ in the Polkey, and doubted whether Lord Bridge could have meant to classify matters such as the choice of a pool for redundancy, or the adoption of criteria for selection as procedural as . .

Cited by:

Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
Cited – Alexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .
Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 30 April 2022; Ref: scu.200301

Clelland v Robb: 1911

If a man has no duty or obligation of diligence, he cannot be charged with negligence.

Judges:

Lord President Dunedin and Lord Kinnear

Citations:

1911 SC 253

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: 30 April 2022; Ref: scu.197994

Oliver v Saddler and Co: HL 1929

Stevedores had been employed to unload a cargo of maize in bags. They provided the rope slings by which the cargo was raised to the ship’s deck by their own men using the ship’s tackle, and then transported to the dockside by the shore porters, of whom the plaintiff was one. The porters relied on examination by the stevedores and had themselves no opportunity of examination.
Held: Reversing the decision of the First Division, there was a duty owed by the stevedore company to the porters to see that the slings were fit for use and restored the judgment of the Lord Ordinary, Lord Morison, in favour of the pursuer. The direct relations established, especially the circumstance that the injured porter had no opportunity of independent examination, gave rise to a duty to be careful.

Citations:

[1929] AC 584

Jurisdiction:

England and Wales

Cited by:

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

Negligence, Scotland

Updated: 30 April 2022; Ref: scu.197986

Wood Group Heavy Industrial Turbines Ltd v Crossham: EAT 1998

Re-instatement may be inappropriate where an employer has lost confidence in an employee. The Employment Tribunal’s order for re-engagement was set aside where the Respondent genuinely believed that the Claimant was using and dealing in drugs in the workplace and had been guilty of clocking offences. Although the dismissal was found to be unfair due to a lack of proper investigation and failure by the Respondent to follow a fair procedure, the breakdown in trust and confidence given the nature of the allegations and the employer’s genuine belief in them meant that it was impractical to order re-engagement.
Lord Johnston said: ‘We consider that the remedy of re-engagement has very limited scope and will only be practical in the rarest of cases where there is a breakdown in confidence as between the employer and the employee. Even if the way the matter is handled results in a finding of unfair dismissal, the remedy, in that context, invariably to our minds will be compensation.
That general proposition applies to this particular case, even if it be the case that the witnesses asserted, as a matter of generality including fellow employees, there was no animosity likely to be exhibited towards the respondent. We cannot lose sight of the fact that in addition to his general defence of conspiracy, in one of his interviews the respondent asserted positively that a number of other people had been ‘out to get him’ by reason of incidents in another part of the factory. That does not seem to us to be merely a knee-jerk reaction to specific allegations. All in all, it seems to us there are sufficient factors bearing on the issue of practicability in this case, such as we have rehearsed, to render it impracticable to order re-engagement.’

Judges:

Lord Johnston

Citations:

[1998] IRLR 680

Citing:

Cited – Nothman v Barnet London Borough County Council (No 2) CA 1980
Ormrod, LJ discussed the making of an order for re-instatement after an unfair dismissal finding, saying: ‘Miss Nothman has mentioned in her proposed Notice of Appeal (and from time to time touched on it in this Court) what she believes to be the . .

Cited by:

Cited – M Iqbal v Consignia Plc EAT 5-Dec-2002
EAT Procedural Issues – Employment Tribunal
The claimant had had his claims for discrimination rejected. He was found to have been unfairly dismissed, but with nil compensation because of what was found to . .
Distinguished – Wolff v Oasis Community Learning (Unfair Dismissal : Reinstatement/Re-Engagement) EAT 17-May-2013
EAT UNFAIR DISMISSAL – Reinstatement/Re-engagement
Claimant a teacher working for an institution responsible for schools in different parts of the country – Held to have been unfairly dismissed – In . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 29 April 2022; Ref: scu.194935

S v HM Advocate: HCJ 1989

Rape is regarded as an aggravated assault, of which the achievement of sexual intercourse is the worst aggravating feature.

Judges:

Lord Emslie

Citations:

1989 SLT 469

Cited by:

Followed – Regina v R HL 23-Oct-1991
H has no right to sexual intercourse with W – rape
The defendant appealed against his conviction for having raped his wife, saying that intercourse with his wife was necessarily lawful, and therefore outside the statutory definition of rape. Due to the matrimonial difficulties, the wife had left . .
Followed – Regina v C (rape: marital exemption), Crwn 1991
(Crown Ct at Sheffield) There were nine counts in an indictment against a husband and a co-accused charging various offences of a sexual nature against an estranged wife. One of these was of rape as a principal.
Held: The whole concept of a . .
Lists of cited by and citing cases may be incomplete.

Scotland, Crime

Updated: 29 April 2022; Ref: scu.194883

Chanthall Investments Ltd v F G Minter Ltd: OHCS 22 Jan 1976

The court considered the approach to claims for damages which had been made worse because of the impecuniosity of the victim: ‘I am of opinion that in each case where the matter arises it is a question of fact, in the particular circumstances, whether loss associated with the impecuniosity of the party claiming to have suffered loss was within the contemplation of the parties.’

Judges:

Lord Keith

Citations:

1976 SC 73

Citing:

Cited – Trans Trust SPRL v Danubian Trading Co Ltd CA 1952
Lord Justice Denning said: ‘It was also said that the damages were the result of the impecuniosity of the sellers and that it was a rule of law that such damages are too remote. I do not think there is any such rule. In the case of a breach of . .

Cited by:

Cited – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Applied – Margrie Holdings Ltd v City of Edinburgh District Council IHCS 1994
When asking whether a claim for damages could properly include an additional element to recover additional costs of an impecunious pursuer, the proper approach, consistent with the modern authorities, was to ask whether the loss was or was not . .
Lists of cited by and citing cases may be incomplete.

Scotland, Damages

Updated: 29 April 2022; Ref: scu.188650

Scottish Property Investment Company Building Society v Horne: 1881

To warrant the remedy of summary ejection, the defender’s possession of premises has to be vicious, that is obtained by fraud or force, or precarious possession: ‘A precarious possession is a possession by tolerance merely.’

Judges:

Lord President Inglis

Citations:

(1881) 8 R 737

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: 29 April 2022; Ref: scu.187794

SPH (Scotland) Ltd v Edinburgh City Council: OHCS 25 Jun 2003

The respondent council was regularly asked to provide information by way of search information, and sought to charge a fee for the purpose.
Held: The provision of the information was discretionary and not in pursuance of any explicit power. The authority could impose only fees authorised by statute, and the scheme for charging was ultra vires. The duty on the authority to achieve economy in its activities could equally have been met by refusing to supply such information.

Judges:

Lord Clarke

Citations:

Times 19-Sep-2003

Citing:

Cited – Regina v Richmond Upon Thames London Borough Council, ex parte McCarthy and Stone (Developments) Ltd HL 14-Nov-1991
A Local Authority was not able to impose charge for inquiries as to speculative developments and similar proposals, or for consultations, and pre-planning advice. There was no statutory authority for such a charge, and it was therefore unlawful and . .
Lists of cited by and citing cases may be incomplete.

Scotland, Local Government

Updated: 29 April 2022; Ref: scu.186308

Fraser v Robertson: 1881

A creditor in an obligation undertaken by a debtor prior to sequestration must, after sequestration, enforce that obligation against the estate vested in the trustee and can only seek a decree of constitution there anent against the debtor personally, and that a creditor can enforce against the debtor an obligation incurred after sequestration.

Citations:

(1881) 8 R 347

Cited by:

Cited – Mulvey v Secretary of State for Social Security HL 20-Mar-1997
The appellant had had repayable awards from the social fund and also income support benefit. Deductions were made from the benefit to repay the awards. Her estate was sequestrated. She argued that the awards should no longer be deducted.
Held: . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Scotland

Updated: 29 April 2022; Ref: scu.184746

Macdonald’s Trustee v Macdonald: 1938

So much income received by a debtor as exceeds his needs, as determined by the Sheriff, may require to be paid to the permanent trustee. The 1921 Act did not override

Citations:

1938 SC 536

Statutes:

Police Pensions Act 1921 14(1), Bankruptcy (Scotland) Act 1913 98(2)

Cited by:

Cited – Mulvey v Secretary of State for Social Security HL 20-Mar-1997
The appellant had had repayable awards from the social fund and also income support benefit. Deductions were made from the benefit to repay the awards. Her estate was sequestrated. She argued that the awards should no longer be deducted.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Insolvency

Updated: 29 April 2022; Ref: scu.184747

Hinton v Donaldson: SCS 1 Jul 1773

The House held that copyright did not exist in the law of Scotland except as provided for by the statute of 8 Anne.

Citations:

Unreported, July 1773

Statutes:

Statute of Anne 1710

Cited by:

Followed – Donaldson v Beckett HL 22-Feb-1774
Copyright Must Be Limited in Time
The booksellers’ statutory copyright rights had expired. They requested the court to recognise a continuing right akin to copyright under common law.
Held: Following Hinton -v- Donaldson, the Lords dissolved an injunction against Alexander . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Scotland

Updated: 29 April 2022; Ref: scu.184250

Phestos Shipping Company Limited v Kurmiawan: 1983

In the course of an industrial dispute between the crew of a vessel and its owners, the crew occupied the vessel and refused to move. The owners sought interdict and interim interdict against the crew from ‘continuing in occupation and possession of, and remaining on board and trespassing on the motor vessel Bulk Trader presently lying at Leith or any deck or any compartment thereof’. Compliance with an interdict in those terms would obviously require the crew to take the positive step of removing themselves from the ship. Interim interdict was granted by the Second Division, although the competency of the order was not argued. An interdict is available ‘if there is an unlawful act or proceeding threatened or still taking place and not yet completed’. If an act or proceeding is ‘continuing’, or ‘still taking place’, it must obviously have been completed to some extent, in that a wrong has already been done to the pursuer.

Judges:

Lord Clyde

Citations:

1983 SLT 388

Cited by:

Cited – Hampden Park Limited v Frank Dow and Stephen Conley and Hampden Cars Limited and Mount Florida Cars Limited ScHC 3-Sep-2001
The case related to the disputed status of rights of way to the national football stadium in Scotland, over land adjoining the stadium. The stadium owners claimed that rights of way over the land had been used for more than twenty years. The land . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Scotland

Updated: 29 April 2022; Ref: scu.183210

Colquhoun’s Curator Bonis v Glen’s Trustee,: 1920

A feu contract provided that a house should be used for residential purposes only. The tenant of the house used two rooms to conduct a school for young children, and the superior brought an action to interdict such use of the house.
Held: Positive steps would clearly require to be taken by the tenant to cease occupying the premises for the purposes of a school. Interdict was granted,

Citations:

1920 SC 737

Cited by:

Cited – Hampden Park Limited v Frank Dow and Stephen Conley and Hampden Cars Limited and Mount Florida Cars Limited ScHC 3-Sep-2001
The case related to the disputed status of rights of way to the national football stadium in Scotland, over land adjoining the stadium. The stadium owners claimed that rights of way over the land had been used for more than twenty years. The land . .
Cited – Hanover (Scotland) Housing Association Limited and for Judicial Review of A Decision of Michael Sandford, Arbiter SCS 4-Jan-2002
. .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 29 April 2022; Ref: scu.183211

Brookfield Developments Ltd v The Keeper of the Registers of Scotland: 1989

The word ‘inaccuracy’ in section 9(1) of the 1979 Act should be construed widely so as to include any incorrect or erroneous entry in or omission from the Register. The position was that the Keeper could not create something from nothing by an erroneous step.

Citations:

1989 SLT (LT) 105

Statutes:

Land Registration (Scotland) Act 1979 9(1)

Cited by:

Cited – Safeway Stores Plc v Tesco Stores IHCS 6-Jun-2003
The parties appealed a decision of the Lands Tribunal for Scotland ordering rectification of the land register. A small area had been registered to two registers, and an error had occurred on the digitisation of the plan.
Held: The system of . .
Lists of cited by and citing cases may be incomplete.

Scotland, Registered Land

Updated: 29 April 2022; Ref: scu.183238

Johnson v Grant: SCS 1923

Lord Clyde, the Lord President considered whether the contemnor should be given early release from prison and said: ‘The mere circumstance that he presents a belated expression of contrition has, with regard to the public aspect of the matter, almost no importance at all. There is ample opportunity . . for repentance before sentence is pronounced. The appeal is simply to the clemency of the court . . and the idea must not be harboured that a person who has wilfully committed a breach of interdict can obtain remission of sentence by coming to the court and saying, ‘I realise my transgression and apologise for it’ – however sincerely such an apology may be made.’

Judges:

Lord Clyde, Lord President

Citations:

[1923] SC 789

Cited by:

Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – CJ v Flintshire Borough Council CA 15-Apr-2010
The applicant appealed against a refusal to allow his early release from prison having been sentenced to 21 months for contempts of court.
Held: The appeal failed. The court set out eight questions which might be asked before allowing such a . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contempt of Court

Updated: 29 April 2022; Ref: scu.182820

Bravado Merchandising Services Ltd v Mainstream Publishing (Edinburgh) Ltd: SCS 1996

The petitioner was the proprietor of the trade mark Wet Wet Wet (the name of a popular music group). It was registered for (among other classes of goods) books. The defendant intended to publish a book about the group using ‘Wet Wet Wet’ as part of the title.
Held: Distinguishing Mothercare, that that would be a trade mark use, but that it would nevertheless be within section 11(2)(b) (as amounting to an indication of the characteristics of the goods to which the mark was applied) and so would not amount to an infringement.

Judges:

Lord McCluskey

Citations:

[1996] FSR 205

Statutes:

Trade Marks Act 1994 11(2)(b)

Citing:

Distinguished – Mothercare UK Ltd v Penguin Books CA 1988
The Trade Marks Act would only be concerned to restrict the use of a mark as a trade mark or in a trade mark sense, and should be construed accordingly. If descriptive words are legitimately registered [as a trade mark], there is still no reason why . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Scotland

Updated: 29 April 2022; Ref: scu.182488

Royal Bank of Scotland plc v Bannerman Johnstone Maclay (a Firm) and Others: OHCS 23 Jul 2002

The defenders, a firm of chartered accountants, prepared accounts for a customer of the pursuer bank. The bank claimed damages for negligence having relied upon the accounts. The auditors relied upon the case of Galoo.
Held: It was not necessary for the accounts to have been prepared specifically for the bank, no separate evidence of such an intention was required. Galoo did not refer to the present case where the auditors expressly knew that the bank would be relying on the accounts in making lending decisions. It had been open to the defenders, if they had wished to disclaim any responsibility beyond the statutory duties fulfilled. The auditors had to satisfy themselves that the company could continue, and that required them to test the readiness of the bank to continue its lending, and accordingly also the bank’s reliance upon the audited accounts.

Judges:

Lord Macfadyen

Citations:

Times 01-Aug-2002

Links:

ScotC

Citing:

Cited – Galoo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .
Lists of cited by and citing cases may be incomplete.

Scotland, Banking, Professional Negligence

Updated: 28 April 2022; Ref: scu.174746

Callagan v Glasgow City Council: EAT 28 Aug 2000

The employee was a social worker. After being assaulted in the course of his work, his health deteriorated, and eventually he was dismissed. He claimed disability discrimination. An impairment having been found, and the other conditions being net. The only preliminary issue remaining was whether the employer could establish that he had nevertheless acted reasonably. He had. Had the employer made any reasonable adjustment? The tribunal had rejected the evidence of the applicant on this point. In this case the employee had never been fit enough even for that. Appeal refused.
EAT Disability Discrimination – Adjustments

Judges:

The Honourable Lord Johnston

Citations:

EAT/43/01

Links:

EAT

Scotland, Employment, Discrimination

Updated: 28 April 2022; Ref: scu.171482

Matthewson v The Scottish Ministers: OHCS 10 Jun 2001

The claimant, a lifer, argued that prison disciplinary actions were effectively criminal proceedings, and that the procedures failed to satisfy his rights to a fair trial under the Act.
Held: Disciplinary proceedings were not criminal proceedings. They were discontinuous with the proceedings which led to the imprisonment, and though they might have an effect on subsequent parole decisions, but decisions of a parole board could not either be seen as criminal proceedings; there was no charge and no penalty, but only a consideration of whether the prisoner was suitable for release on life licence.

Judges:

Reid L

Citations:

Times 24-Oct-2001

Statutes:

Prisons and Young Offenders Institutions (Scotland) Rules 1994 (SI 1994 No 1931), Human Rights Act 1998

Scotland, Prisons, Human Rights

Updated: 28 April 2022; Ref: scu.166722

Bennett, Petitioner: 1994

Citations:

[1994] SCCR 902, [1995] SLT 510

Jurisdiction:

Scotland

Cited by:

Cited – Johannes Cornelius Vervuren v Her Majesty’s Advocate HCJ 12-Apr-2002
The applicant had been extradited from Portugal. He said that the procedures in Portugal had infringed his human rights in that he had not had proper representation nor translation, and that his consent to extradition had been under protest as to . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 28 April 2022; Ref: scu.180966

Mooney v Lanarkshire County Council: 1954

Citations:

1954 SC 245

Jurisdiction:

Scotland

Cited by:

Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 28 April 2022; Ref: scu.180948

Percy v Church of Scotland Board of National Mission: HL 15 Dec 2005

The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an employment. However the jurisdiction in sex discrimination cases was wider, extending to those who ‘contract personally to execute any work or labour.’
Held: Her claim should proceed. The central test was the intention to create legal relations. ‘Without more, the nature of the mutual obligations, their breadth and looseness, and the circumstances in which they were undertaken, point away from a legally-binding relationship.’ but ‘The offer and acceptance of a church post for a specific period, with specific provision for the appointee’s duties and remuneration and travelling expenses and holidays and accommodation, ‘ pointed to a contract.
In matters purely spiritual, the Church is to have exclusive jurisdiction, but ‘A sex discrimination claim would not be regarded as a spiritual matter even though it is based on the way the church authorities are alleged to have exercised their disciplinary jurisdiction. The reason why a sex discrimination claim would not be so regarded is that the foundation of the claim is a contract which, viewed objectively, the parties intended should create a legally-binding relationship. The rights and obligations created by such a contract are, of their nature, not spiritual matters. They are matters of a civil nature as envisaged by section 3. In respect of such matters the jurisdiction of the civil courts remains untouched.
‘It is a fundamental rule of sex discrimination law that it is not possible to contract out of it. ‘
Lady Hale referred to Perceval-Price and said: ‘I have quoted those words . . because they illustrate how the essential distinction is, as Harvey says, between the employed and the self-employed. The fact that the worker has very considerable freedom and independence in how she performs the duties of her office does not take her outside the definition. Judges are servants of the law, in the sense that the law governs all that they do and decide, just as clergy are servants of God, in the sense that God’s word, as interpreted in the doctrine of their faith, governs all that they practise, preach and teach. This does not mean that they cannot be ‘workers’ or in the ’employment’ of those who decide how their ministry should be put to the service of the Church.’

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond

Citations:

Times 16-Dec-2005, [2005] UKHL 73, [2006] 2 WLR 353, [2006] ICR 134, [2006] IRLR 195, [2006] 2 AC 28, 2006 SLT 11, [2006] 4 All ER 1354

Links:

House of Lords, Bailii

Statutes:

Sex Discrimination Act 1975 82(1), Church of Scotland Act 1921, Equal Treatment Directive (Council Directive 76/207/EEC

Jurisdiction:

Scotland

Citing:

Cited – Re National Insurance Act 1911: Re Employment of Church of England Curates 1912
A curate in the Church of England was not employed under a ‘contract of service’ within Part I(a): ‘The position of a curate is the position of a person who holds an ecclesiastical office, and not the position of a person whose rights and duties are . .
Cited – Scottish Insurance Commissioners v Church of Scotland SCS 1914
Assistants to ministers, (not associate ministers), of the Church of Scotland are not employed by the Church under contracts of employment. The ‘control’ test was to be used in identifying a contract of employment. An assistant to a minister was not . .
Cited – President of the Methodist Conference v Parfitt CA 1-Oct-1983
The claimant sought to assert that he as a minister of the Methodist Church who had been received into full connection had a contract of employment with the church. Having that contract, he said hat he had been unfairly dismissed.
Held: A . .
Cited – Davies v Presbyterian Church of Wales HL 1986
A minister of the Presbyterian Church of Wales who had been inducted pastor of a united pastorate in Wales claimed unfair dismissal.
Held: If the existence or otherwise of the relationship of employer and employee is dependent solely upon the . .
Cited – President of the Methodist Conference v Parfitt CA 1-Oct-1983
The claimant sought to assert that he as a minister of the Methodist Church who had been received into full connection had a contract of employment with the church. Having that contract, he said hat he had been unfairly dismissed.
Held: A . .
Appeal from – Helen Percy v An Order and Judgment of the Employment Appeal Tribunal Dated 22 March 1999 SCS 20-Mar-2001
Mrs Percy was a minister in the church. She appealed rejection of her claim for unfair dismissal and sex discrimination.
Held: the court considered whether Ms Percy was employed by the Board of National Mission in terms of a ‘contract . .
Cited – McMillan v Guest HL 1942
The House considered whether the taxpayer held a public office.
Held: Lord Wright: The word ‘office’ as applied in an employment law context is of indefinite content. Lord Atkin said: ‘Without adopting the sentence as a complete definition one . .
Cited – 102 Social Club and Institute Ltd v Bickerton 1977
Philips J set out the consequences of the 1971 Act: ‘Before 1971 there was perhaps a tendency to find in contracts of employment elements of a public character which would enable the court to extend to the employee the protection flowing from ‘the . .
Cited – Barthope v Exeter Diocesan Board of Finance EAT 1979
A stipendiary lay reader claimed for unfair dismissal. The respondent denied there was any contract of service.
Held: The Tribunal rejected a submission that the claimant was an office holder and, as such, that it followed he was not employed . .
Cited – Miles v Wakefield Metropolitan District Council HL 1987
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
Cited – Reverend Doctor A B Coker v Diocese of Southwark; Bishop of Southwark and Diocesan Board of Finance CA 11-Jul-1997
A Church of England Assistant Curate is not an employee, but rather a holder of an ecclesiastical office. There is a presumption that ministers of religion were office-holders who did not serve under a contract of employment. Accordingly he is not . .
Cited – Johnson v Ryan and others EAT 29-Nov-1999
A rent officer claimed unfair dismissal. The respondent said that being appointed under a statutory authority she was not an employee entitled to protection.
Held: The defence failed: ‘The question that the [employment] tribunal should have . .
Cited – Logan v Presbytery of Dumbarton (Scotland) OHCS 23-May-1995
Civil courts have no power to review acts of Church of Scotland in the exercise of its disciplinary powers in spriitual matters. . .
Cited – Hastie v McMurtrie 1889
The pursuer had been appointed a foreign missionary of the Church of Scotland in India.
Held: He had not been appointed to an office in the church but had an ordinary contract of service which was terminable by notice in the usual way. . .
Cited – Department of the Environment v Fox 1980
A rent officer, although holding a statutory office and not in employment, came within section 85(2)(b) because she performed services on behalf of the Crown for the purposes of a statutory body, namely a rent assessment committee. . .
Cited – Dale v Inland Revenue Commissioners HL 1954
Payments to trustees, which a testator had directed should be paid from a charitable trust for their work as trustees, were held to be earned income. The Revenue had contended that they were investment income because it was repugnant to the nature . .
Cited – Deborah Lawrie-Blum v Land Baden-Wuerttemberg ECJ 3-Jul-1986
The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Forbes v Eden 1865
A clergyman complained of a change in the doctrinal standards of the church.
Held: Since the matter concerned an eccliastical issue and not that he had been deprived of his status as a minister, the court could not intervene. Lord . .
Cited – McMillan v Free Church of Scotland 1861
A clergyman complained of the loss of his benefice.
Held: A patrimonial interest was involved and that the court would protect it. While the court might not have the power to restore the pursuer to the ministry, it did not follow that he was . .
Cited – Stewart v Kennedy HL 10-Mar-1890
As a general rule of Scottish law, extrinsic evidence of the parties’ intention as to whether or not they intended to be bound by obligations which they have entered into in writing is inadmissible. There may however be exceptional cases.
For . .
Mentioned – Forbes v Eden HL 1867
Decision affirmed . .
Cited – Skerret v Oliver 1896
The pursuer had been suspended from his office as a licentiate of the United Presbyterian Church for having met and walked privately with a young female member of the congregation.
Held: Lord McLaren said that the governing bodies of voluntary . .
Cited – Mirror Group Newspapers v Gunning CA 1985
The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. . .
Cited – Legal Services Commission v Yvonne Patterson CA 11-Nov-2003
The claimant worked as a sole practitioner solicitor. The firm failed the first part of its franchise assessment. She sought to allege race discrimination. The EAT rejected the complaint on the basis that she was not an employee.
Held: The . .
Cited – Mingeley v Pennock and Another (T/A Amber Cars) CA 9-Feb-2004
The claimant taxi driver sought to assert race discrimination. The respondent argued that he had not been an employee, but an independent contractor. The Claimant owned his own vehicle and paid the respondents minicab operators pounds 75 per week . .
Cited – Alabaster v Barclays Bank Plc and Another CA 3-May-2005
The claimant sought increased maternity pay. Before beginning her maternity leave she had been awarded a pay increase, but it was not backdated so as to affect the period upon which the calculation of her average pay was based. The court made a . .
Cited – M H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching) ECJ 26-Feb-1986
ECJ The court considered the measure of compensation in a successful claim for sex discrimination arising from the health authority’s provision of an earlier compulsory retirement age for women compared with that . .
Cited – Fletcher, Parkes, Wilkinson v NHS Pensions Agency/Student Grants Unit the Secretary of State for Health EAT 3-Jun-2005
EAT An appeal from the dismissal of their sex discrimination claim by trainee midwives in the NHS, from whom the facility of a bursary was withdrawn during authorised absence from their training for a specified . .
Cited – Allonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
Cited – Coote v Granada Hospitality Ltd ECJ 22-Sep-1998
coote_granadaECJ1998
The employer had refused to provide a reference after the claimant had left the company after making a sex discrimination claim. She said this was victimisation.
Held: The state has a duty to protect workers against retaliation after . .
Cited – Wippel v Peek and Cloppenburg GmbH and Co. KG ECJ 12-Oct-2004
ECJ Opinion – Directive 97/81/EC – Directive 76/207/EEC – Social policy – Equal treatment as between part-time and full-time workers – Equal treatment as between male and female workers – Working hours and . .
Cited – Kalanke v Freie Hansestadt Bremen ECJ 17-Oct-1995
An automatic preference of women ceteris paribus was discriminatory and unlawful. Any derogation from article 2.4 must be interpreted strictly. . .
Cited – Hugh-Jones v St John’s College, Cambridge 1979
An office holder can agree to execute work or labour without becoming an employee. . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
Cited – Trussed Steel Concrete Ltd v Green 1946
A company director required to work full time for the company in return for a salary may be an employee: ‘… the question I have to consider is . . whether a managing director serving under a contract such as that by which Mr Green is bound is a . .
Applied – Perceval-Price, and others v Department of Economic Development etc CANI 12-Apr-2000
A full-time a full-time chairman of industrial tribunals, a full time chairman of social security appeal tribunals, and a social security commissioner are workers within the meaning of the European legislation, even though, by domestic legislation . .
Cited – Malloch v Aberdeen Corporation HL 1971
A common law action for wrongful dismissal can at most yield compensation measured by reference to the salary that should have been paid during the contractual period of notice. Lord Reid said: ‘At common law a master is not bound to hear his . .
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed without being given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his behaviour. He . .
Cited – Great Western Railway Co v Bater 1920
At common law, and office is ‘a subsisting, permanent, substantive position, which had an existence independently of the person who filled it, and which went on and was filled in succession by successive holders.’ . .

Cited by:

Cited – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
Cited – Moore v The President of The Methodist Conference EAT 15-Mar-2011
EAT JURISDICTIONAL POINTS – Worker, employee or neither
Claimant, a Methodist minister, brought proceedings for unfair dismissal – Tribunal held that it was bound by President of Methodist Church Conference . .
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Cited – The New Testament Church of God v Reverend Stewart CA 19-Oct-2007
The appellant appealed a finding that the respondent had been its employee, saying he was a minister of religion.
Held: The judge had been entitled to find an intention to create legal relations, and therefore that the claimant was an . .
Cited – Singh v The Members of The Management Committe of The Bristol Sikh Temple and Others EAT 14-Feb-2012
EAT WORKING TIME REGULATIONS – Worker
NATIONAL MINIMUM WAGE ACT – Worker
The issue was whether the Priest at a Sikh Temple was a ‘worker’ within section 54(3)(b) of the National Minimum Wage Act 1998. . .
Cited – O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
Applied – Methodist Conference v Preston SC 15-May-2013
Minister was not an employee
The claimant asserted unfair dismissal. The Conference said that as an ordained minister she was not an employee, and was outwith the jurisdiction of such a claim.
Held: The Conference’s appeal succeeded (Baroness Hale dissenting). The essence . .
Cited – Khaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .
Cited – Sharpe v The Bishop of Worcester CA 30-Apr-2015
Reverend Sharpe applied for the post of Rector of Teme Valley South. The right to present (or nominate) a member of the clergy to this living was vested in Mr and Mrs Miles but a person could not be nominated without the Bishop’s approval, which was . .
Cited – Pimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .
Cited – Gilham v Ministry of Justice SC 16-Oct-2019
The Court was asked whether a district judge qualifies as a ‘worker’ for the purpose of the protection given to whistle-blowers under Part IVA of the 1996 Act, and if not then was the absence of protection an infringement of her human rights.
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment, Ecclesiastical

Leading Case

Updated: 25 April 2022; Ref: scu.236382

Hughes v Lord Advocate: HL 21 Feb 1963

The defendants had left a manhole uncovered and protected only by a tent and paraffin lamp. A child climbed down the hole. When he came out he kicked over one of the lamps. It fell into the hole and caused an explosion. The child was burned. The Court of Session held that there was no liability.
Held: A defendant will not be liable if the injury actually sustained is not foreseeable, if it is of a different kind from that which the defendant ought to have foreseen as the likely outcome of his want of care. Liability was sought to be established in respect of ‘meddlesome children’. The House considered the people to whom a duty was owed: (Lord Reid) ‘So we have (first) a duty owned by the workmen, (secondly) the fact that if they had done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. The ground on which this case has been decided against the appellant is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender’s fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way.’ and ‘This accident was caused by a known source of danger, but caused in a way which could not have been foreseen and in my judgment, that affords no defence.’
‘It is true that the duty of care expected in cases of this sort is confined to reasonably foreseeable dangers, but it does not necessarily follow that liability is escaped because the danger actually materialising is not identical with the danger reasonably foreseen and guarded against.’ A defender is liable although the damage may be a good deal greater in extent than was foreseeable, as he can escape liability only if the damage can be regarded as differing in kind from what was foreseeable.
Lord Morris said: ‘My Lords, in my view, there was a duty owed by the defenders to safeguard the pursuer against the type or kind of occurrence which in fact happened and which resulted in his injuries, and the defenders are not absolved from liability because they did not envisage ‘the precise concatenation of circumstances which led up to the accident.’
Lord Pearce said: ‘The defenders are therefore liable for all the foreseeable consequences of their neglect. When an accident is of a different type and kind from anything that a defender could have foreseen, he is not liable for it-see The Wagon Mound, [1961] A.C.388. But to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable . . ‘

Judges:

Lord Jenkins, Lord Reid, Lord Guest, Lord Pearce

Citations:

[1963] AC 837, [1963] 1 All ER 705, 1963 SC (HL) 31, [1963] UKHL 1, [1963] UKHL 8

Links:

Bailii, Bailii

Jurisdiction:

Scotland

Citing:

Cited – Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) PC 18-Jan-1961
Foreseeability Standard to Establish Negligence
Complaint was made that oil had been discharged into Sydney Harbour causing damage. The court differentiated damage by fire from other types of physical damage to property for the purposes of liability in tort, saying ‘We have come back to the plain . .

Cited by:

Cited – Groom v Selby CA 18-Oct-2001
The defendant negligently failed to discover the claimant’s pregnancy. A severely disabled child was born. The question was as to the responsibility for payment of excess costs of raising a severely disabled child, a claim for economic loss. The . .
Cited – Mullin v Richards and Birmingham City Council CA 6-Nov-1997
Two 15 year old schoolfriends were playing with rulers when one shattered and a fragment injured the eye of the other. She claimed negligence in the school. She appealed a finding that she was herself fifty per cent responsible.
Held: Although . .
Cited – The Attorney General v Hartwell PC 23-Feb-2004
PC (The British Virgin Islands) A police officer had taken the police revolver, and used it to shoot the claimant. It was alleged that the respondent police force were vicariously liable for his acts and also . .
Cited – McNamara v North Tyneside Metropolitan Borough Council CA 21-Feb-1997
The claimant sought damages for personal injuries. The case he presented at trial differed from that pleaded, and he now appealed dismissal of his claim.
Held: The variation was sufficiently serious to justify the refusal of relief. In fact . .
Cited – Simmons v British Steel plc HL 29-Apr-2004
The claimant was injured at work as a consequence of the defender’s negligence. His injuries became more severe, and he came to suffer a disabling depression.
Held: the Inner House had been wrong to characterise the Outer House decision as . .
Cited – Jolley v Sutton London Borough Council QBD 1998
The claimant, a boy was injured when playing around a boat abandoned on land owned by the defendant. He had propped it up to attempt a repair, and was crushed when it fell on him. He said that in not removing the boat they had been negligent.
Cited – Regina v London Borough of Sutton, ex parte Jolley CA 19-Jun-1998
The plaintiff, a boy, was injured when playing on a derelict boat left on council land. The council appealed an award of damages against it.
Held: A local authority may be liable for injury caused by a derelict boat not removed from their land . .
Cited – Jolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
Cited – Jebson v Ministry of Defence CA 28-Jun-2000
The claimant was a guardsman travelling in the rear of a service lorry. He fell from the tailgate suffering severe injury. He was drunk after a social trip.
Held: Though a person could normally expect to be responsible himself for incidents . .
Cited – Corr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
Cited – Robb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
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 – Gerrard v Staffordshire Potteries Ltd CA 2-Nov-1994
The plaintiff was injured when working for the defendants spraying glaze onto jars. A small foreign body was blown into her eye. She said that no eye protection had been suuplied as required by the regulations.
Held: The plaintiff’s appeal . .
Cited – Gerrard v Staffordshire Potteries Ltd CA 2-Nov-1994
The plaintiff was injured when working for the defendants spraying glaze onto jars. A small foreign body was blown into her eye. She said that no eye protection had been suuplied as required by the regulations.
Held: The plaintiff’s appeal . .
Cited – Hampshire Police v Taylor CA 9-May-2013
The officer had been cut by glass when clearing out a cannabis factory. The risk assessment had identified only a need for latex gloves. She said that given the environment heavier garden gloves should have been provided. The Chief Constable . .
Cited – Ogwo v Taylor HL 19-Nov-1987
A firefighter sought damages for personal injuries from the party negligent in starting a fire, suffered while attending it.
Held: A property owner owes a duty of care to firemen, not, by his negligence, to start a fire, or to create special . .
Cited – Devine v Colvilles Ltd HL 11-Mar-1969
The House considered the position of the doctrine of res ipsa loquitir. The plaintiff had been injured falling or jumping from a raised platform.
Held: The claim succeeded. ‘ I hold it proved that there was a general panic. Now the defenders . .
Lists of cited by and citing cases may be incomplete.

Negligence

Leading Case

Updated: 24 April 2022; Ref: scu.182841

Mitchell and Another v Glasgow City Council: HL 18 Feb 2009

(Scotland) The pursuers were the widow and daughter of a tenant of the respondent who had been violently killed by his neighbour. They said that the respondent, knowing of the neighbour’s violent behaviours had a duty of care to the deceased and should have removed the neighbour, or warned them when their attempts to remove him failed, and further that the procedures preventing their claim infringed their human rights.
Held: The rejection of the claim for irrelevancy was based on a point of law assuming that the averrments were shown, and therefore did not infringe the pursuers’ human rights. It would be unjust to put the defenders to the expense of a case when, in law, the case was bound to fail. Forseeability of harm does not of itself impose a duty of care, and there is generally no positive duty on a person to protect others, and consequently the law does not impose a duty to prevent a person from being harmed by the criminal act of a third party based simply upon foreseeability. The creation of a duty to warn would create great uncertainty and complexity.
Lord Rodger said: ‘The obligation of the United Kingdom under article 2 goes wider, however, In particular, where a state has assumed responsibility for an individual, whether by taking him into custody, by imprisoning him, detaining him under mental health legislation, or conscripting him into the armed forces, the state assumes responsibility for that individual’s safety. So in these circumstances police authorities, prison authorities, health authorities and the armed forces are all subject to positive obligations to protect the lives of those in their care.’

Judges:

Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

Citations:

[2009] UKHL 11, Times 18-Feb-2009, [2009] WLR (D) 65, [2009] 2 WLR 481, 2009 SCLR 270, 2009 SC (HL) 21, 2009 GWD 7-122, 2009 Hous LR 2, [2009] PIQR P13, [2009] NPC 27, [2009] 3 All ER 205, [2009] HRLR 18, 2009 SLT 247

Links:

Bailii, HL

Statutes:

European Convention on Human Rights 2

Jurisdiction:

Scotland

Citing:

Cited – Hussain and Another v Lancaster City Council CA 14-May-1998
It was suggested that a landlord, or at least a local authority landlord, who knows or ought to know of a nuisance being committed in the neighbourhood of the demised premises, but who fails to take such steps as are reasonable in all the . .
Cited – Jamieson v Jamieson HL 1952
The house discussed the test for relevancy of a pursuer’s averments.
Held: A case should only be dismissed on grounds of relevancy and specification if it would necessarily fail at proof.
The House reversed the decision of the Court of . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Miller v South of Scotland Electricity Board HL 1958
An employer should recognise that it is not possible to predict all the ways in which dangers may arise, especially where the risk is created by carelessness. The employer is liable even if he did not foresee the precise accident that happened. In . .
Cited – Haynes v Harwood CA 1935
The plaintiff, a policemen saw a horse running loose in the street among children. He ran out, chased it and caught it but was injured.
Held: The horseowner was liable. It was foreseeable that if a horse was let loose in a crowd, somebody, . .
Cited – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
Cited – Gorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
Cited – The Attorney General v Hartwell PC 23-Feb-2004
PC (The British Virgin Islands) A police officer had taken the police revolver, and used it to shoot the claimant. It was alleged that the respondent police force were vicariously liable for his acts and also . .
Cited – Hill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – W v Essex County Council and Another HL 17-Mar-2000
A foster child was placed with a family. The child had a history of abusing other children, but the foster parents, who had other children were not told. The foster child caused psychiatric damage to the carers.
Held: It was wrong to strike . .
Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
Cited – Stansbiev Troman CA 1948
A decorator working alone in a house went out to buy wallpaper and left the front door unlocked. He was held liable for the loss caused by a thief who entered while he was away. For the purpose of attributing liability to the thief (e.g. in a . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – Elguzouli-Daf v Commissioner of Police of the Metropolis and Another CA 16-Nov-1994
The Court upheld decisions striking out actions for negligence brought by claimants who had been arrested and held in custody during criminal investigations which were later discontinued. The Crown Prosecution Service owes no general duty of care to . .
Cited – Dorset Yacht Co Ltd v Home Office HL 6-May-1970
A yacht was damaged by boys who had escaped from the supervision of prison officers in a nearby Borstal institution. The boat owners sued the Home Office alleging negligence by the prison officers.
Held: Any duty of a borstal officer to use . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Yuen Kun-Yeu v Attorney-General of Hong Kong PC 1987
(Hong Kong) The claimant deposited money with a licensed deposit taker, regulated by the Commissioner. He lost his money when the deposit taker went into insolvent liquidation. He said the regulator was responsible when it should have known of the . .
Appeal from – Mitchell v Glasgow City Council SCS 30-Jun-2005
Outer House . .

Cited by:

Cited – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
Cited – Geary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .
Cited – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
Cited – Kent County Council, Regina (on The Application of) v HM Coroner for The County of Kent (North-West District) and Others Admn 15-Oct-2012
The council sought review of the coroner’s decision that the inquest would be an article 2 inquest and with a jury. The deceased was 14 years old and had taken methadone. In the months before his death, he had had involvement with the council’s . .
Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
Cited – Poole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.

Negligence, Human Rights

Updated: 24 April 2022; Ref: scu.293984

The Commissioners and Trustees of The Forfeited Estates v Elizabeth Stevenson, Widow of Archibald Pitcairn of That Ilk, Doctor of Medicine: HL 13 Feb 1725

Treason – Obligations granted in Prison before Trial – The Earl of Winton, while in prison previous to his trial and attainder for high treason, granted receipts bearing to be for money advanced to him, but these are not allowed in whole.
It is found, however, that he was entitled to be alimented out of his estate at that period, and to apply money to the expences of his trial, and for his maintenance in prison for three months 5 and for such expences a sum of money (2972 l. 3 s.) is modified.

Citations:

[1725] UKHL Robertson – 518, (1725) Robertson 518

Links:

Bailii

Jurisdiction:

England and Wales

Crime

Updated: 24 April 2022; Ref: scu.554117

McKendrick v Sinclair: HL 15 Mar 1972

The House considered the nature of an action for assythment – a claim for damages by the family of a victim of a homicide where the perpetrator had not suffered capital punishment. The defendant here argued that it was no longer good law.
Held: The common law was not lost through lack of use. The remedy still existed.

Citations:

[1972] UKHL 9, 1972 SLT 110, 1972 SC (HL) 25

Links:

Bailii

Jurisdiction:

Scotland

Damages, Constitutional

Updated: 24 April 2022; Ref: scu.279735

Slater v Finning Ltd: HL 4 Jul 1996

Judges:

Lord Keith of Kinkel, Lord Griffiths, Lord Jauncey of Tullichettle, Lord Slynn of Hadley and Lord Steyn

Citations:

[1996] UKHL 59, 1996 SLT 912, 1997 SC (HL) 8, [1997] AC 473, [1996] CLC 1236, [1996] 2 Lloyd’s Rep 353, 1996 SCLR 863, [1996] 3 All ER 398, [1996] 3 WLR 190, (1996) 15 Tr LR 458

Links:

Bailii

Statutes:

Sale of Goods Act 1979 14(3)

Jurisdiction:

England and Wales

Contract

Updated: 24 April 2022; Ref: scu.279784

Aitken’s Trustees v Aitken: HL 26 Nov 1969

‘The first question put to us in the case is whether the third party is entitled to a one-third share in the residue of the testator’s estate. The answer to that question depends primarily upon the meaning to be given to the words in the residue clause, which I have quoted, ‘jointly with the issue who may survive me of such of my children as may have predeceased.’ If ‘my children’ means ‘my said children,’ that is, the two named children, who are the second parties, then the clause would clearly exclude the third party from participation in the residue. But I am unable so to construe the residue clause. If that had been what the testator had intended to provide, it would have been very easy to have said so. But in place of doing this he has made what he describes as a joint gift to two named children and to the issue of such of his children as may have predeceased him. The words ‘my children’ are not confined to the named persons in the immediately preceding part of the clause. The third group, therefore, to whom this bequest was made would cover the third party, who was, in fact, the issue of a child who had, in fact, predeceased him.’

Judges:

Lord Clyde

Citations:

[1969] UKHL 13, 1970 SC (HL) 28, 1970 SLT 66,

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 24 April 2022; Ref: scu.279728

Muir’s Trustees v Williams: HL 1943

The law against perpetuities in Scotland is entirely of statutory origin.

Judges:

Lord Thankerton

Citations:

1943 SC (HL) 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.

Trusts

Updated: 24 April 2022; Ref: scu.186363