swarb.co.uk - law index
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Scotland - From: 1985 To: 1989
This page lists 48 cases, and was prepared on 20 May 2019.
Central Regional Council v B 1985 S L T 413
1985
Scotland, Children
In the absence of any specific provision forbidding or restricting appeals, the presumption was that the ordinary rules applied in respect of a summary application. Since those rules allowed appeals, the plea to the competency of an appeal from the sheriff in that case was repelled.
Social Work (Scotland) Act 1968
1 Citers
Forsyth v A F Stoddard and Co Ltd 1985 SLT 51
1985
OHCS
Lord Justice Clerk Wheatley
Scotland, Limitation
An action for damages by an employee against his employer was raised 48 days after the expiry of the triennium due to an oversight by an assistant with the pursuer's solicitors. The sheriff refused to allow the action to be brought, the Sheriff Principal allowed it and on appeal the Second Division reversed the decision of the Sheriff Principal. Held: A pursuer in such circumstances has to accept responsibility for the sins of omission or commission of his solicitor as "the correct exposition of the law". since the pursuer was legally aided, the defenders would probably have to pay their own expenses, win or lose, whereas if the pursuer were refused the indulgence which he sought the defenders would not be placed in that position, was a relevant consideration: "In every case of this nature there is a common theme. If the pursuer is granted the court's indulgence the defender loses a cast iron case, since but for that he would be legally free from the claim, and he is faced with the risk of losing the case with the consequential financial repercussions. That is a factor to be taken into account. He has no way out of that. On the other hand, if the pursuer is not granted the court's indulgence his claim against the defender comes to an end, and the defender is freed and relieved of a claim which might have been a perfectly justifiable one. However, the pursuer might have, as here, an action against his solicitors for professional negligence which might or might not recoup him in whole or in part for the damages which he could no longer obtain from the defender. There are imponderables about such an alternative, and its outcome can vary from case to case. Neither of these contrasting considerations is in itself conclusive, and the weights to be applied to them respectively will again depend on the circumstances. In my opinion it is not illegitimate to have in consideration the strength of the case against the third party and the likelihood of a successful prosecution of such a case, but again that is just a factor. Another consideration (although the Sheriff Principal rejected it - wrongly in my view), even if it only carries a little weight, is the burden of the expenses the defenders have to bear even if they are successful, since the pursuer is a legally assisted person. This in a way is merely consequential on the major issue, but it is entitled to be taken into account for what it is worth."
1 Cites
1 Citers
Arthur Bell and Sons v Assessor for Fife [1965] RA 535
1985
Lord Avonside
Scotland, Rating
Lord Avonside said, with reference to the estimation of the annual value of subjects under the 1956 Act, that it was notorious that one must take a building according to its use at the time of the valuation.
Valuation and Rating (Scotland) Act 1956
1 Citers
William Muir (Bond 9) Ltd v Lamb [1985] IRLR 95
1985
EAT
Employment, Scotland
The employee was found to have been unfairly dismissed, but he had not pursued his internal appeal rights. Held: A failure by a dismissed employee to appeal against his dismissal could not amount to a failure to mitigate his losses within section 74(4).
Lord McDonald MC said: "The appellants accept the finding of unfair dismissal. They argue however that, because she declined to follow the internal appeal procedure, she had therefore failed to mitigate her loss. The suggestion was made to us that we should take account of this and reduce the award of compensation by 50%.
We take it to be clearly established that there is no obligation upon an employee who is dismissed to follow up an internal appeal procedure before making application to an industrial tribunal. This in our opinion is clear from the case of Chrystie v. Rolls Royce (1971) Ltd [1976] IRLR 336 and Hoover Ltd v. Forde [1980] ICR 239. It is true that in the latter case an industrial tribunal had found that had the dismissed employee availed himself of the appeal procedure the decision to dismiss him might have been rescinded and on that ground apparently his compensation was reduced by 50%. We are bound to say that we have great difficulty in accepting the reasoning in that case. It seems to us to be purely speculative to attempt to assess what would have happened in the event of an appeal being taken. There are many imponderable factors. One is the manner in which the appeal is handled. Another is the person or persons to whom the appeal lies. In an industrial situation it may very often happen that an employee who has been dismissed considers that there is no point in him following up the internal appeal procedure because he does not have confidence in the persons who would hear that appeal. It would therefore be quite wrong in our view to penalise an employee who has been unfairly dismissed by reducing her compensation because she did not follow through whatever internal appeal procedure may have existed.
That is enough to decide the case in favour of the respondent and the appeal is therefore dismissed."
Employment Protection (Consolidation) Act 1978 74(4)
1 Citers
Porcelli v Strathclyde Regional Council [1986] ICR 564; [1986] SC 137; [1985] ICR 1977
1985
EAT
Lord McDonald
Discrimination, Employment, Scotland
A woman school technician was subjected to a campaign of sexual harassment by two fellow male non-managerial technicians. She sought a transfer. Held: The real question was whether the sexual harassment was to the detriment of the applicant within section 6(2)(b). The claim of sex discrimination succeeded.
Lord McDonald said: "It was argued on behalf of the applicant that the words "subjecting her to any other detriment" were so universal that they covered acts of sexual harassment committed against her during her employment, without reference to any consequences thereof so far as her employment was concerned. The mere fact that they had been committed automatically placed her employers, perhaps vicariously, in breach of section 6(2)(b) and section 1(1) of the Act of 1975.
We do not think this interpretation is correct. The Act of 1975 does not outlaw sexual harassment in the field of -employment or elsewhere. That is left to the common law in an appropriate case. What it does outlaw in the field of employment is discrimination against a woman within the terms of her contract of employment on the ground of her sex. In certain cases sexual harassment may be relevant in this connection. An employer who dismisses a female employee because she has resisted or ceased to be interested in his advances would, in our view, be in breach of section 6(2)(b) and section 1(1) of the Act of 1975 for reasons arising from sexual harassment. Similarly if, for the same reason, he takes other disciplinary action against her short of dismissal, he would also be in breach. This action could be suspension, warning, enforced transfer, etc., all of which would be to the detriment of the female employee although open to an employer under her contract of service in a genuine case not associated with sexual harassment.
If this is a correct interpretation of the statute we ask ourselves what detriment, if any, within her contract of employment, the applicant suffered in the present case. The answer, we feel, is not far to seek. It lies in the fact that on 4 August 1983 she felt obliged to seek transfer from Bellahouston Academy to another school, and this was duly granted with effect from 19 September 1983. The campaign of harassment, including sexual harassment, with the objective of making the applicant apply for transfer had succeeded."
Sex Discrimination Act 1975 1(1)(a) 6(2)b)
1 Citers
Webster v Lord Advocate [1985] ScotCS CSIH - 1
7 Feb 1985
SCS
Scotland
[ Bailii ]
Tudhope v Mccarthy [1985] ScotHC HCJAC - 1
8 Feb 1985
HCJ
Scotland, Crime
[ Bailii ]
Fenning v Hm Advocate [1985] ScotHC HCJAC - 2
3 May 1985
HCJ
Scotland, Crime
[ Bailii ]
Scottish Discount Co v Blin [1985] ScotCS CSIH - 3
23 May 1985
scs
Scotland
[ Bailii ]
Grant v Peter Gauld and Co [1985] ScotCS CSIH - 4
12 Jun 1985
scs
Scotland
[ Bailii ]
Squires v Perth and Kinross Dc [1985] ScotCS CSIH - 5
11 Jul 1985
scs
Scotland
[ Bailii ]
Zahnrad Fabrik Passau v Terex [1985] ScotCS CSOH - 6
29 Aug 1985
scs
Scotland
[ Bailii ]
Brentnall v Free Presbyterian Church of Scotland; 1986 - 1986 SLT 471
Kelly v Monklands District Council 1986 SLT 169
1986
Scotland, Housing, Children, Local Government
A local authority's housing duties may be owed to a child if that child is living independently of its parents.
1 Citers
Lord Advocate v R W Forsyth Ltd; 1986 - (1986) 61 TC 1
Porchetta v Porchetta 1986 SLT 105
1986
Lord Dunpark
Scotland, Children
Before the Act of 1986 was enacted, a father did not have an absolute right to access to his child. He is only entitled to access if the court is satisfied that that is in the best interests of the child, and that the onus to show that is on the father who seeks access. The child in this action of divorce, was only 18 months old. He had had almost no contact with his father, who had seen him only twice very briefly. The mother was adamantly opposed to access, and the judge was satisfied that any attempt at access at that time would only sustain this hostility and that the child would sooner or later sense it and suffer thereby. The only reason given for the father's application was that he was the father of the child. Held: Once the paramountcy of the child's welfare was recognised, there could be no assumption of a right of access.
Law Reform (Parent and Child) (Scotland) Act 1986 3
1 Citers
McIntosh v HM Advocate 1986 SC 169
1986
HCJ
Lord Justice Clerk (Ross)
Scotland, Criminal Practice
The appellant was convicted of supplying cannabis to a named individual at a house in Paisley. The appellant had acted with his co-accused Miss C who had made the actual supply. There was sufficient evidence against Miss C to prove that she had made the supply from two sources: a statement that she had made to the police, admitting the supply, and the eye-witness testimony of her sister. The sister's evidence was available against the appellant, but the Appeal Court quashed the appellant's conviction on the ground that the co-accused's statement was not evidence against the appellant and therefore the sister's evidence was not corroborated, as it requires to be in Scots law. Held: "It is plain that without the evidence of Deborah Campbell's voluntary statement, there was no corroborated evidence of supply to Maureen Campbell. In a question with Deborah Campbell the jury were entitled to treat her voluntary statement as corroboration. However, the jury were not entitled to rely on the evidence of the voluntary statement of Deborah Campbell when considering the case against the other co-accused including the appellant. What Deborah Campbell said in her voluntary statement to the police was not evidence against the appellant." The co-accused's statement made no mention of the appellant, but was none the less not admissible against him to prove the supply with which he was charged.
1 Citers
Strathclyde Regional Council v Porcelli 1986 SC 137; [1986] ICR 564; [1986] IRLR 134
1986
SCS
Lord President Emslie
Discrimination, Scotland
Mrs Porcelli was employed as a science laboratory technician at a school in Glasgow. Two technicians in the same department pursued a vindictive campaign against her for the deliberate purpose of making her apply for a transfer to another school. This conduct was both unpleasant and intimidating. It included various obscene acts which had a sexual innuendo. When the gender of the victim dictates the form of the harassment, that of itself indicates the reason for the harassment, namely, it is on the ground of the sex of the victim. Degrading treatment of this nature differs materially from unpleasant treatment inflicted on an equally disliked male colleague, regardless of equality of overall unpleasantness: "It was a particular kind of weapon, based upon the sex of the victim, which . . would not have been used against an equally disliked man."
1 Cites
1 Citers
Pinkerton v Pinkerton [1986] SLT 672
1986
OHCS
Lord Mackay of Clashfern
Scotland, Landlord and Tenant
An agreement by A to let a farm to himself, his wife and two sons was a valid lease which gave security of tenure. the Landlord and tenant were sufficiently different for a valid agreement between them to be possible.
1 Citers
Lord Advocate's Reference (No 1 of 1985); HCJ 1986 - 1986 JC 137
Watson-Towers Ltd v McPhail 1986 SLT 617
1986
Lord Wylie
Scotland, Contract, Limitation
The pursuer submitted a motion for summary judgment for the value of goods which had been supplied subject to a reservation of title clause. The pursuer's evidence consisted of a letter from the defender making an offer expressed to be without prejudice but which attached a schedule listing the goods in its possession. Held: The schedule was admissible because it was, on the true construction of the letter, not a "hypothetical admission or concession for the purpose of securing a settlement" but a statement of fact.
1 Citers
Rainey v Greater Glasgow Health Board; HL 27-Nov-1986 - [1987] 1 AC 224; 1987 SLT 146; [1987] 2 CMLR 11; [1986] 3 WLR 1017; [1987] ICR 129; [1987] IRLR 26; [1987] 1 All ER 65; 1987 SC (HL) 1; [1987] UKHL 16; [1986] UKHL 8
Cunningham v Scotsman Publications 1987 SLT 698; 1987 SCLR 314; 1987 SC 107; [1986] ScotCS CSOH - 1
27 Nov 1986
SCS
Lord Clyde
Scotland, Defamation
The pursuers complained of court reports in which, it was said, the reports went beyond what had been read out in court, and that therefore as defamatory material, were not protected by privilege.
[ Bailii ]
Montgomery v Lockwood 1987 SCLR 525
1987
Sheriff Principal R.R. Taylor QC
Scotland, Children
The pursuer had no right of access to the child unless the court granted it and that the court could not make any order unless it was satisfied that to do so would be in the interests of the child.
1 Cites
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Scottish Old People's Welfare Council, Petitioners 1987 SLT 179
1987
SCS
Lord Clyde
Scotland
The organisation ("Age Concern Scotland") challenged guidance issued by the chief adjudication officer regarding social security payments for severe weather conditions. Lord Clyde concluded that any member of the public, or an association such as the petitioners, was entitled to bring proceedings to enforce the proper administration of social security legislation, subject to demonstrating a sufficient interest.
1 Citers
McCusker v Saveheat Cavity Wall Insulation Ltd 1987 SLT 24
1987
Lord Justice-Clerk Ross
Scotland
1 Cites
1 Citers
P and M Sinclair v The Bamber Gray Partnership 1987 SC 203
1987
Lord Prosser
Litigation Practice, Scotland
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.
1 Citers
Air Ecosse Ltd v Civil Aviation Authority (1987) 3 BCC 492, Ct of Session
1987
OHCS
Scotland
1 Citers
Litster and Others v Forth Dry Dock and Engineering Co Ltd [1988] IRLR 289
1988
SCS
Employment, Scotland, European
(Second Division of the Inner House of the Court of Session) Twelve applicants worked for an employer who went into insolvent receivership. The receivers agreed to sell the business assets. An hour before completion the workers were dismissed and handed letters stating that no payments would be made for holiday pay or damages for failure to give the statutory period of notice. None were taken on by the new owners of the undertaking. The Industrial Tribunal had held that the dismissal was unfair, that the applicants were employed immediately before the transfer and were dismissed by reason of the transfer. Their dismissal was therefore unfair under Regulation 8 of TUPE and the liability of their former employers was transferred to the transferee. Held; The employer's appeal was allowed.
Transfer of Undertakings (Protection of Employment) Regulations 1981
1 Citers
McAndrew v Prestwick Circuits Ltd; EAT 1988 - [1988] IRLR 514
MacIntosh v National Coal Board 1988 SLT 348
1988
Scotland, Litigation Practice
As to interest on damages, the rate to be applied was a matter for the Lord Ordinary's discretion
Campins-Coll Petitioner [1988] ScotCS CSOH - 1
29 Jun 1988
SCS
Scotland
[ Bailii ]
Hinton and Higgs (Uk) Ltd v Murphy [1988] ScotCS CSOH - 2
15 Jul 1988
SCS
Scotland
[ Bailii ]
Regina v Mackenzie 1989 SLT 121
1989
HCJ
Lord Justice General Emslie
Crime, Scotland
Misiuse of Drugs Act 1971 28(2)
1 Citers
Tehrani v Argyll and Clyde Health Board 1989 SC 342
1989
Scotland, Health Professions
1 Citers
Gallemos (In Receivership) Ltd v Barratt Falkirk Ltd 1989 SC 248
1989
Contract, Scotland
1 Citers
S v HM Advocate; HCJ 1989 - 1989 SLT 469
McGeown v HM Advocate [1989] CLY 4029
1989
Scotland, Criminal Practice
1 Citers
Brookfield Developments Ltd v The Keeper of the Registers of Scotland 1989 SLT (LT) 105
1989
Scotland, Registered Land
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.
Land Registration (Scotland) Act 1979 9(1)
1 Citers
Alvis v Harrison (1990) 62 P and CR 10; [1989] SLT 746
1989
HL
Lord Jauncey of Tullychettle
Land, Scotland
The dominant tenement lay on both sides of the servient land, a driveway running North South leading to the A73 highway. To the West of the driveway, on part of the dominant tenement, stood a house. The owner of the house wished to construct a new drive to run eastwards from the driveway and thence to join the highway further east than the place where the servient tenement joined it. The owner of the servient tenement sought to stop him from doing so. Held: He could not. A right of access over servient property could not in substance be used to benefit property other than the dominant property, whatever the ownership of the dominant and non-dominant properties.
Lord Jauncey of Tullychettle said: "Before turning to the facts of this case it may be convenient to state certain general principles applicable to servitude rights of access and their use: "Where a right of access is granted in general terms the owner of the dominant tenement is entitled to exercise that right not only for the purpose of the use to which the tenement is then being put but also for any other lawful purpose to which it may be put thereafter . . The right must be exercised civiliter, that is to say, reasonably and in a manner least burdensome to the servient tenement . . For the better enjoyment of his right the dominant owner may improve the ground over which the right extends provided that he does not substantially alter the nature of the road nor otherwise prejudice the servient tenement . . A servitude right of access inures to the benefit of the dominant tenement and no other. Thus is cannot communicated for the benefit of other tenements contiguous thereto . . What they may not do, however, is to use the way, or permit its use by others, to obtain access to subjects other than the dominant tenement, whether or not they happen to be heritable proprietors of those others subjects. They may not, in short, increase the scope of the right of access, and in particular they may not use the way for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the lane and the non dominant subjects . ." and "It is quite wrong to treat the A 73 as though it were another tenement contiguous to the woodlands. The underlying reason for restricting the benefit of a servitude right of access to the dominant tenement alone is that to use it for the benefit of a second or third tenement is likely to generate more traffic and so increase the burden. In this case, the appellant already has a right of access to the A 73 over the driveway. The new road merely provides a substitute means of access without altering the volume of traffic."
1 Citers
Hatherley v Smith [1989] SLT 316
1989
Scotland
1 Citers
Casey v Edinburgh Airport Ltd Unreported, 23 February 1989
23 Feb 1989
SCS
Lord Morison
Scotland, Judicial Review
There was a challenge to decisions taken by the airport authority, under a bye-law, to refuse permits to the applicant taxi operators. During the hearing, the applicants sought to challenge the validity of the bye-law itself. Held: Lord Morison refused to consider such a challenge in the absence of intimation to the taxi operators who had been granted permits under the contested bye-law. He said: "No intimation of the petition has been made to these persons, since in its present form it does not affect their interest . . It seems to me to be clear that the argument sought to be presented by the petitioners cannot be determined in the absence of intimation to other taxi operators who have an interest to uphold the validity of the permission granted to them."
1 Citers
Roberts v Hamilton [1989] ScotHC HCJ - 1
10 Mar 1989
HCJ
Scotland, Crime
[ Bailii ]
Litster and Others v Forth Dry Dock and Engineering Co Ltd; HL 16-Mar-1989 - [1989] 2 WLR 634; [1989] 1 All ER 1134; [1989] ICR 341; [1990] 1 AC 546; 1989 SC (HL) 96; [1982] IRLR 161; [1988] UKHL 10
Tehrani v Argyll and Clyde Health Board (No.2) [1989] ScotCS CSIH - 1
30 Jun 1989
SCS
Scotland
[ Bailii ]
Ford v Guild [1989] ScotHC HCJ - 2
18 Oct 1989
HCJ
Scotland, Crime
[ Bailii ]
Scott Lithgow Ltd v Gec Electrical Projects Ltd [1989] ScotCS CSOH - 3
14 Nov 1989
SCS
Scotland
[ Bailii ]
Findlater v Maan [1989] ScotCS CSIH - 2
30 Nov 1989
SCS
Scotland
[ Bailii ]