Category: Scotland

Greater Glasgow Health Board v Lamont: EAT 21 Jun 2012

EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
REDUNDANCY – Definition
Redundancy. Whether dismissal at termination of fixed term contract to cover another employee who had returned from secondment was by reason of redundancy. FTC immediately followed on previous open ended employment.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0019 – 12 – 2106

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Scotland

Updated: 04 November 2022; Ref: scu.463517

RM, Re Judicial Review v The Scottish Ministers: SCS 15 Mar 2011

The reclaimer, detained under the 1995 Act, sought judicial review of the respondent’s failure to lay regulations as required before an appeal could be made.

Citations:

[2011] ScotCS CSIH – 19, [2011] CSIH 19, 2011 GWD 12-268, 2012 SC 397, 2011 SLT 787

Links:

Bailii

Statutes:

Criminal Procedure (Scotland) Act 1995

Jurisdiction:

Scotland

Prisons, Health

Updated: 04 November 2022; Ref: scu.430619

Bourne v City of Edinburgh Council: SIC 18 Jun 2014

SIC Risk Register for Edinburgh Tram Project: failure to respond within statutory timescales – On 15 February 2014, Mrs Bourne asked City of Edinburgh Council (the Council) for information about the detailed risk register for versions of the Business Cases from 2003 to 2011. This decision finds that the Council failed to respond to the requirement for review within the timescale allowed by the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (the EIRs).

Citations:

[2014] ScotIC 134 – 2014

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 03 November 2022; Ref: scu.535083

A Links and Co Ltd v Rose: 1993

Citations:

[1993] SLT 664

Jurisdiction:

Scotland

Cited by:

Cited – Rothwell v Pelikan Hardcopy Scotland Ltd EAT 23-Sep-2005
EAT DISABILITY DISCRIMINATION
Reasonable adjustments
UNFAIR DISMISSAL
Procedural fairness
The claimant, who suffered from Parkinson’s Disease, claimed that he had been unfairly dismissed and . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 03 November 2022; Ref: scu.377523

The Royal Bank of Scotland Plc v Hill: SCS 3 Jul 2012

(Opinion) The bank sought production of a statutory demand issued against it by the defendant. It was said to have been served by misplaced by them, but denied that it had any valid basis. The defender alleged fraud but had not given any justification for his assertions or claim.
Held: ‘the defender’s position in this action is seriously misconceived. He appears to think that unless the pursuers choose to respond to his various assertions that substantial sums are due to be paid by them to him he is entitled to serve a statutory demand leading to winding-up of the pursuers.’

Judges:

Lord Pentland

Citations:

[2012] ScotCS CSOH – 110

Links:

Bailii

Statutes:

Insolvency Act 1986 123(1)

Citing:

Cited – Shedden v Patrick 1852
Pleaded allegations of fraud must be based on clear and specific averments of fact from which an inference of fraud may legitimately be drawn . .
Lists of cited by and citing cases may be incomplete.

Scotland, Insolvency

Updated: 03 November 2022; Ref: scu.461935

University of Stirling v University and College Union: EAT 8 Nov 2011

EAT REDUNDANCY
Definition
Collective consultation and information
TULRA ss.188 and 195. Collective consultations. Fixed term contracts. Dismissals for reason that employees under fixed term contracts had entered into those contracts accepting that they were finite and would come to an end at a particular date or at the end of a specified project. On appeal, EAT held that Employment Tribunal had been wrong to conclude that s.188 applied. On the facts, the employees had been dismissed for a reason relating to them as individuals.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0001 – 11 – 0811, [2012] ICR 803, [2012] IRLR 266, [2012] ELR 398

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992

Jurisdiction:

England and Wales

Cited by:

Appeal from – University College Union v The University of Stirling SCS 14-Jan-2014
(Extra Division Inner House) The University was considering making redudancies. The Union argued that when considering the level of consultation needed, the number of qualifying employees should include those on limited term contracts, and ‘This in . .
At EAT – University and College Union v The University of Stirling SC 29-Apr-2015
The University needed to reduce its staff. They and the Union disputed whether research assistants on limited term contracts would simply cease to be employd as their terms concluded, or were entitled to be made redudant.
Held: The appeal was . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 01 November 2022; Ref: scu.460384

NJDB v JEG and Another: SC 23 May 2012

Mother and father disputed whether the father should be allowed contact with their child S. Court orders had been made for residential and non-residential contact, but there were difficulties and the order for contact was reversed on the basis that S was hostile to it.
Held: The father’s appeal failed. A parent continued to have parental rights and responsibilities, notwithstanding the withdrawal of contact with the child. The court’s jurisdiction in such appeals is very limited. The Sherriff had based his decision on the welfare of S, and nor did the criticisms of counsel amount to an issue of law which might allow the Supreme Court jurisdiction.
The court discussed the difficulties inherent in allowing such disputes to become too wide ranging.

Judges:

Lord Hope, Deputy President, Lady Hale, Lord Clarke, Lord Wilson, Lord Reed

Citations:

[2012] UKSC 21, 2012 GWD 19-387, 2012 SLT 840, 2012 Fam LR 56, 2012 SCLR 428

Links:

Bailii, Bailii Summary

Jurisdiction:

England and Wales

Citing:

Cited – White v White SCS 6-Mar-2001
. .
Appeal from – NJDB v JEG SCS 22-Oct-2010
The parties dispute contact arrangements between the pursuer and their child. The cost of the proceedings, excluding judicial costs, had been estimated at about andpound;1 million, of which by far the larger proportion had been borne by the Scottish . .
Cited – JB DB and JWDWB v The Authority Reporter for Edinburgh SCS 22-Jun-2011
. .
Cited – Bronda v Italy ECHR 9-Jun-1998
In some fields of law legal rules may not be laid down with total precision. Undue delay in child contact proceedings may have irreversible effects upon the child. . .

Cited by:

Cited – ANS and Another v ML SC 11-Jul-2012
The mother opposed adoption proceedings, and argued that the provision in the 2007 Act, allowing a court to dispense with her consent, infringed her rights under Article 8 and was therefore made outwith the powers of the Scottish Parliament.
Lists of cited by and citing cases may be incomplete.

Scotland, Children

Updated: 31 October 2022; Ref: scu.459617

Regina (Majead) v Immigration Appeal Tribunal, Secretary of State for the Home Department Interested Party: CA 1 Apr 2003

The applicant had arrived in England to apply for asylum but had then been moved to Scotland. A decision of the adjudication officer in Scotland had been heard by the Immigration Appeal Tribunal sitting in London. The claimant sought a High Court review of that decision in London.
Held: The review could only be conducted by the Court of Session. The considerations were not those of a private action as to forum conveniens, but had constitutional implications. Though some residual jurisdiction lay in London, this was not an exceptional case and was to be heard in Scotland. Parliament had made clear that the courts of Scotland should have ultimate responsibility in relation to appeals to the IAT from adjudicators in Scotland. Without deciding the point Brooke LJ noted that in a ‘real emergency’ the High Court might exercise jurisdiction over IAT decisions relating to appeals from adjudicators in Scotland but that would have to be a ‘very exceptional case’.

Judges:

Brooke, Hale, Wilson LJJ

Citations:

Times 24-Apr-2003, [2003] EWCA Civ 615, Gazette 12-Jun-2003

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Regina (Shah) v Immigration Appeal Tribunal. Secretary of State for the Home Department, interested party CA 22-Nov-2004
The applicant had fled Pakistan to claim asylum. His application for judicial review of the decision to reject his request for asylum failed. It had been decided in Scotland. He appealed.
Held: It was not open to the Secretary of State to . .
Cited – Tehrani v Secretary of State for the Home Department HL 18-Oct-2006
The House was asked whether an asylum applicant whose original application was determined in Scotland, but his application for leave to appeal rejected in London, should apply to challenge those decisions in London or in Scotland.
Held: Such . .
Lists of cited by and citing cases may be incomplete.

Scotland, Jurisdiction, Immigration, Constitutional

Updated: 31 October 2022; Ref: scu.181842

His Majesty’s Advocate v William Urquhart of Meldrum, Esq: HL 6 Feb 1755

Decree of Sale. – Patronage. – Testing Clause – Sasine. –
1 st. A decree of sale does not cut off the right of or exclude parties not called in the ranking and sale; and the Act 1695 does not protect a purchaser in such a case. 2d. A contract as to patronage sustained, though the witnesses’ designations to the subscription of one of the contracting parties were not inserted in the body of the deed. 3d. Found no objection to a sasine that the notary’s docquet did not mention the particular symbols used in passing infeftment, or bear the notary’s motto affixed to his signature, the sasine being eighty years old, and possession having followed upon it.

Citations:

[1755] UKHL 1 – Paton – 586

Links:

Bailii

Jurisdiction:

Scotland

Legal Professions

Updated: 26 October 2022; Ref: scu.558222

Marchioness-Dowager of Annandale, Only Child and Surviving Trustee and Executrix of John Vanden Bempde, Esq, Deceased v Marquis of Annandale; and Ronald Crawford, Clerk To The Signet: HL 18 Feb 1755

Trust Uses – Act of Parliament – Execution of the Trust. – Held where the money, personal estate, rents, and co., belonging to a trust estate, were specially directed by the truster’s will, to be laid out in the purchase of land in England, though by Act of Parliament, power had been given to appropriate certain accumulations of these rents, and co., in purchasing up debts affecting the Annandale estates in Scotland, to which the beneficiary had succeeded, yet that the trustees and executors under the will, were still entitled, on a favourable purchase of land offering in the counties named in the will, to recall the money so lent out, and to purchase the estates.

Citations:

[1755] UKHL 6 – Paton – 697

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 26 October 2022; Ref: scu.558224

The Duke of Douglas v John Lockhart of Lee, and James Somervel of Corehouse Et E Contra: HL 27 Mar 1755

An action was raised against Justices of Peace for neglect and failure in the performance of their duty. They pleaded the Act 24 Geo. II., c. 44, as protecting them in the execution of their office. Held that this Act applied to Scotland. Reversed in the House of Lords.

Citations:

[1755] UKHL 6 – Paton – 706

Links:

Bailii

Jurisdiction:

Scotland

Magistrates

Updated: 26 October 2022; Ref: scu.558225

Grizel Craik, Daughter of Adam Craik, and Grand-Daughter of William Craik v Jean Craik, Daughter of William Craik: HL 21 Dec 1753

Marriage Contract- Powers of Father- Fiar- Res Judicata.-
Held where a father had bound himself by the marriage contract to convey his estate to the heirs male of the marriage, this did not prevent him from making an entail in favour of the heir male and series of substitutes. Circumstances in which points raised were res judicata.

Citations:

[1753] UKHL 1 – Paton – 542

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 26 October 2022; Ref: scu.558216

Mrs Jean Forbes, Wife of Captain Dundas, and Elizabeth Forbes, Wife of Dr John Gregory, and Both Daughters of The Late Lord Forbes v James, Lord Forbes: HL 29 Jan 1756

An antenuptial contract of marriage, in the shape of an entail, contained a reserved faculty and power to grant provisions to younger children on deathbed, and to affect the estate therewith. Held, reversing the judgment of the Court of Session, that bonds of provision granted on deathbed were not reducible on deathbed, they having been executed in exercise of the reserved faculty.

Citations:

[1756] UKHL 2 – Paton – 8

Links:

Bailii

Jurisdiction:

Scotland

Family, Wills and Probate

Updated: 26 October 2022; Ref: scu.558229

Henry Wedderburn, Esq, Second Son of Charles Wedderburn of Gosford v Sir Peter Halket of Pitfirran, Bart, Alexander Hart, His Curator Ad Litem, and John Wedderburn of Gosford, Repondents: HL 19 Mar 1770

Entail – Power to Alter Order of Succession.-
Entail taken to the makers and longest liver in liferent, and to their eldest son in fee, whom failing his second son, andc., with a prohibition against altering the order of succession; but no restraint against selling or charging the estate with debt. The eldest son, who succeeded after the maker, finding his own eldest son an idiot, altered the order of succession, and gave the estate to his second son, and the heirs precisely marked out by the original entail. Held, that as he was fiar of the estate, he could exercise this power, more especially seeing that the deed so executed had not in view fraudulently to alter the order of succession, but merely to provide for a contingency that had not been contemplated by the maker.

Citations:

[1770] UKHL 2 – Paton – 231, (1770) 2 Paton 231

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 26 October 2022; Ref: scu.561669

Henderson v 3052775 Nova Scotia Ltd: HL 10 May 2006

The liquidator had sought to set aside a transfer of company property as having been made at an undervalue. The defence was that the buyer had assumed some of the company’s debt in addition, and in effect that it was a preference on other creditors. The court had then issued an interlocutor in effect debarring the defence as ineffective. The company now appealed against that interlocutor.
Held: ‘the rule [2.2] envisages that the court may look beyond the pleadings and consider what, in substance, each of the parties and, more particularly, the defender is saying. It is this power which allows the court to deal with a party who tries to use his written pleadings not to present a real defence but to throw up a smokescreen of supposed fact behind which he can delay the progress of an action, or part of an action, which he is bound to lose. ‘ and ‘considering a motion for summary decree is entitled to proceed not merely on what is said in the defences, but on the basis of any facts which can be clarified, from documents, articles and affidavits, without trespassing on the role of the proof judge in resolving factual disputes after hearing the evidence. The judge can grant summary decree if he is satisfied, first, that there is no issue raised by the defender which can be properly resolved only at proof and, secondly, that, on the facts which have been clarified in this way, the defender has no defence to all, or any part, of the action. ‘ Nevertheless, on th epapers before the court it was quite impossible to say that the defence must fail.

Judges:

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Mance

Citations:

[2006] UKHL 21, 2006 SCLR 626

Links:

Bailii

Statutes:

Insolvency Act 1986 21.2, Rules of the Court of Session 21.2

Jurisdiction:

England and Wales

Citing:

Appeal from – Henderson v 3052775 Nova Scotia Limited IHCS 18-Feb-2005
. .
See Also – Henderson CA (the Liquidator of Letham Grange Development Co Ltd) v 3052772 Nova Scotia Limited OHCS 9-Dec-2003
. .
See Also – Mathew Purdon Henderson ( Liquidator of Letham Grange Development Co Ltd) v 3052775 Nova Scotia Ltd OHCS 21-Apr-2004
. .
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 – Frew v Field Packaging Scotland Ltd 1994
Rule 21.2(4) gives the court a power to grant the motion, but does not require it to do so where it would not be appropriate in all the circumstances . .
Cited – P and M Sinclair v The Bamber Gray Partnership 1987
A motion for summary decree is not intended to replace a hearing on the procedure roll which is designed for the disposal of legal questions requiring more detailed and extensive legal debate. . .
Cited – Keppie v The Marshall Food Group Ltd 1997
In a motion for summary decree, ‘The court is not concerned with forecasting the outcome of a proof.’ . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Scotland, Litigation Practice

Updated: 25 October 2022; Ref: scu.241620

Brown’ Trustees v Hay: SCS 15 Jul 1897

A’s trustees, and B, the law-agent of the trust, raised an action against C, who had formerly been in the employment of B’s firm, for delivery of certain documents belonging to the trust, and for damages in respect of C’s having illegally used these documents while in his possession (in a manner specifically set forth) to the pursuers’ prejudice.
The pursuers averred that O had originally obtained possession of some of the documents while employed by the trustees as auditor of a business carried on by them, and of the others while acting as liquidator in the winding up of B’s firm.
After the record was closed, the pursuers, in order to meet objections to the competency of the action, applied for leave to amend the summons by making the conclusion for damages one in favour of the trustees alone, and not of all the pursuers.
Held ( aff. the judgment of the Lord Ordinary) that the summons was relevant, in so far, at least, as its conclusions were founded on a breach, on-the part of the defender, of the contract of employment between him and the trustees; and (2) that the conjunction of the law-agent of the trust, as a pursuer along with the trustees, did not, at least as regards the conclusion for delivery, render the instance invalid; and (3) that in any event the amendment had been properly allowed by the Lord Ordinary.
Opinion by Lord M’Laren, that the Court ought not to interfere with the Lord Ordinary’s discretion as to amendment, even if differing from him as to the expediency of allowing the amendment

Citations:

[1897] SLR 34 – 841

Links:

Bailii

Jurisdiction:

Scotland

Scotland

Updated: 25 October 2022; Ref: scu.612483

Brown and Others (Brown’s Trustees) v Hay: SCS 12 Jul 1898

A clerk employed to audit the books of a firm of law-agents communicated to the inland revenue the contents of a document which belonged to a client of the firm, and which had come into his possession solely in the capacity of auditor. The document was a statement of the client’s annual profits considerably in excess of the returns actually made by him to the Inland Revenue.
In an action raised by the client against the clerk, held that by divulging the contents of the paper in question to a third party the defender had infringed the pursuer’s right of property in the document, and therefore that the pursuer was entitled to interdict and damages.
Per Lord M’Laren-‘I have never heard or read that the duty of assisting the Treasury in the collection of the public revenue was of such a paramount nature that it must be carried out by private individuals at the cost of the betrayal of confidence and the invasion of the proprietary rights of other people.’

Judges:

Lord Stormonth Darling, Ordinary

Citations:

[1898] SLR 35 – 877

Links:

Bailii

Jurisdiction:

Scotland

Legal Professions

Updated: 25 October 2022; Ref: scu.612267

NA and Another, Re Judicial Review: SCS 18 Feb 2014

Outer House – In this petition for judicial review, the petitioners seek reduction of the decision by the Upper Tribunal (Immigration and Asylum Chamber) to refuse permission to appeal from the decision of the FTT adverse to their case.

Judges:

Lord Glennie

Citations:

[2014] ScotCS CSOH – 27

Links:

Bailii

Jurisdiction:

Scotland

Immigration

Updated: 24 October 2022; Ref: scu.521413

Kerr v Dumfries and Galloway NHS Board: SIC 18 Feb 2014

Staff attendance sheets, training and annual leave dates – On 7 February 2013, 30 March 2013 and 6 September 2013, Mr Kerr asked Dumfries and Galloway Health Board (NHS Dumfries and Galloway) for various items of information relating to the authority’s staff. NHS Dumfries and Galloway withheld information on the basis that the information was personal data and exempt because disclosure would breach the first data protection principle.
Following an investigation, the Commissioner accepted NHS Dumfries and Galloway’s position and found that the authority was entitled to withhold the information.

Citations:

[2014] ScotIC 032 – 2014

Links:

Bailii

Statutes:

Freedom of Information (Scotland) Act 2002

Jurisdiction:

Scotland

Information

Updated: 24 October 2022; Ref: scu.522717

Hunter v Hanley: 4 Feb 1955

The pursuer had been injured when the hypodermic needle being used by the defender doctor broke in use. The pursuer said that the direction by the judge as to accepted practice for the use of such needles.
Held: The court considered the dangers in establishing simple medical standards to judge medical treatments: ‘In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men . . The true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.’

Judges:

Lord President Clyde

Citations:

[1955] SLT 213, [1955] ScotCS CSIH – 2, 1955 SC 200, [1955-95] PNLR 1

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Penney and Others v East Kent Health Authority CA 16-Nov-1999
A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required. To say this is not to say that such screening tests were expected to achieve . .
Adopted – Maynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Thwaytes v Sotheby’s ChD 16-Jan-2015
The claimant had sold a painting through the defendant auctioneers. He sought damages after it was certified to be an original rather than copy Caravaggio painting, and worth very substantially more. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 23 October 2022; Ref: scu.219196

Brian Purdie and Inverclyde Council: SIC 3 May 2012

SIC Inverclyde Council Future Operating Model – Mr Purdie requested from Inverclyde Council (the Council) information relating to the investigation by the Council into the implementation and management of its Future Operating Model. The Council responded, disclosing some of the requested information, but withholding other information on the basis that its disclosure would prejudice substantially the administration of justice and the Council’s ability to ascertain whether circumstances exist which would justify regulatory action being taken,(sections 35(1)(c) and 35(1)(g) of the Freedom of Information (Scotland) Act 2002 (FOISA)).
After seeking a review, Mr Purdie remained dissatisfied and applied to the Commissioner for a decision.
During the investigation, the Council disclosed information to Mr Purdie which would address two of the three parts of his request, but continued to apply the exemptions in section 35 of FOISA to some of the information which would address part (a) of the request. This decision considers only the information that continued to be withheld by the Council.
Following an investigation, the Commissioner found that the Council had partially failed to deal with Mr Purdie’s request for information in accordance with Part 1 of FOISA. By relying on the exemption in section 35(1)(c) of FOISA for withholding most of the information under consideration in this decision, the Council complied with Part 1 of FOISA. However, the Commissioner found that certain information which had been withheld within two emails was not exempt from disclosure under either section 35(1)(c) or section 35(1)(g) (read in conjunction with section 35(2)(c)) of FOISA. The Commissioner required the Council to disclose this information.
In addition, the Commissioner found that, in failing to respond to Mr Purdie’s request for information within 20 working days, the Council failed to comply with section 10(1) of FOISA.

Citations:

[2012] ScotIC 081 – 2012)

Links:

Bailii

Scotland, Information

Updated: 22 October 2022; Ref: scu.457814