Links: Home | swarblaw - law discussions

swarb.co.uk - law index


These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Scotland - From: 1990 To: 1990

This page lists 17 cases, and was prepared on 20 May 2019.

 
Latter v Latter 1990 SLT 805
1990
SCS
Lord Marnoch
Scotland, Family
The court considered an application for financial provision on a divorce. Much of the family wealth was created within a farming company, but the shares in that company were either inherited by the husband or acquired before the marriage. Held: The definition of matrimonial property in the 1985 Act was capable on occasions such as this of producing very real injustice.
Family Law (Scotland) Act 1985
1 Citers



 
 UCB Bank Plc v Dundas and Wilson; SCS 1990 - 1990 1 SLT 90
 
Connachan v Douglas [1990] CLY 4925
1990


Scotland, Criminal Practice

1 Citers


 
Air 2000 v Secretary of State for Transport (No 2) [1990] SLT 335
1990
OHCS
Lord Clyde
Scotland, Administrative
Advice from the Civil Aviation Authority which by statute the Secretary of State was required to consider had been seen not by him but by an interdepartmental working party which advised him. Held: Citing Carltona for the uncontroversial proposition that "what is done by his responsible official is done by [the minister]". The court rejected as "too extreme" a submission that the mere physical delivery of the advice to the department was sufficient, but accepted that "if it is given to an official who has responsibility for the matter in question, that should suffice".
1 Cites

1 Citers


 
Colquhoun's Trustees v Marchioness of Lorne's Trustee 1990 SLT 34
1990


Scotland

1 Citers


 
Montes v HM Advocate 1990 SCCR 645
1990
HCJ
Lord Justice Clerk Ross
Criminal Practice, Scotland
The appellant was convicted of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of cocaine by importing a quantity of cocaine on a ship which docked at Greenock. The trial judge directed the jury that, in considering the case against the appellant, they could to have regard to a statement by one of his co-accused, Jensen, to Customs and Excise officers, admitting that cocaine found in his possession had been put on the ship in Colombia. Held: This had been a misdirection: "In my opinion this clearly constituted a misdirection. What the appellant Jensen said to the [Customs and Excise] officers was plainly evidence against him, but it was not evidence against the other appellants. In his report the trial judge deals with this ground of appeal. It is not entirely clear whether he is maintaining that because of the earlier direction which he had given to the jury about statements by one co-accused, they ought to have realised that the answers which the appellant Jensen gave to the Customs and Excise officers were not evidence against the other accused, or whether the trial judge's view was that these answers were evidence against the other appellants. In his report he states: 'It is my understanding that a statement made by one accused outwith the presence of another is only inadmissible against the latter if it incriminates him.' The passage would suggest to me that the trial judge's view was that the answers made by the appellant Jensen were in this case admissible against his co-accused. The trial judge recognised that what Jensen said was relevant to the question of importation of cocaine, but he opined that importation by itself was not a criminal act for the purposes of charge (1). That may well be so but importation was a fact which required to be proved by the Crown if guilt under charge (1) was to be established. What the Customs and Excise Officers testified that the appellant Jensen had said to them was hearsay evidence, and so was not admissible against the co-accused as evidence of the facts alleged in the statement. In directing the jury that the evidence of the appellant Jensen's answers was evidence upon which the jury could rely in the case of the other appellants, the trial judge, in my opinion, misdirected the jury."
1 Citers


 
Kildrummy (Jersey) Ltd v Inland Revenue Commissioners [1990] STC 657
1990
IHCS
Lord President (Lord Hope) and Lords Sutherland and Clyde
Inheritance Tax, Scotland, Landlord and Tenant
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.’
1 Cites

1 Citers


 
Brown v Ferguson [1990] SLT 274
1990


Scotland

1 Citers


 
Little v Little 1990 SLT 785
1990
IHCS
Lord Hope, Lord Dunpark
Scotland, Family
The court considered the risk in divorce ancillary relief proceedings that treating each step in the process as raising an issue of law and not of discretion would open up decisions by the court of first instance for reconsideration on appeal. The division of matrimonial property under the 1985 Act is essentially a matter of discretion, aimed at achieving a fair and practicable result in accordance with common sense. The directions in the 1985 Act were designed to reduce the scope of the court's discretion to the minimum that was consistent with enabling the court to deal with each case on its own facts.
Family Law (Scotland) Act 1985
1 Citers


 
Dormer v Melville Dundas and Whitson Ltd 1990 SLT 18
1990


Scotland

1 Citers


 
Moll v MacGregor [1990] SLT 59
1990


Scotland, Landlord and Tenant, Agriculture
(Scottish Land Court) The parties had agreed a rent for an agricultural holding which was to vary annually in accordance with the Retail Price Index. Held: "The main purposes of the 1949 Act were to provide for security of tenure, compensation at outgo and a degree of rent control. The rental provisions are thus crucial ones which include a public as well as a purely private element." The court considered the mandatory language of the statutory provisions: "Having now considered the imperative tenor not only of the 1949 Act (as amended), but also of the subsidiary order governing rental arbitrations, the court conclude that it is not open to parties, whether under the original lease or any subsequent agreement, to contract out of the statutory rental provisions laid down in the public interest for arbiters to follow. These mandatory provisions, based on the open market criterion discounted for scarcity, were obviously introduced with a view to achieving some degree of consistency in farm renting. Parties can of course still agree on a new rent themselves and provided they act on this it will no doubt be effectively binding between them. What they cannot legally do, however, is to contract completely out of the statutory provisions so that, in the event of disagreement, one side or the other is deprived from having recourse to a rent review at the stated period and on the statutory terms. For that would be to reinstate the mischief which these statutory provisions were designed to remedy."
Agricultural Holdings (Scotland) Act 1949
1 Citers


 
Taft v Clyde Marine Motoring Co Ltd 1990 SLT 170
1990

Lord Dervaird
Scotland

1 Citers



 
 Beattie v Scott; 1990 - 1990 SCCR 296
 
Woodcock v Woodcock [1990] ScotCS CSIH - 1
2 Feb 1990
SCS

Scotland

[ Bailii ]
 
Mcmillan v Caldwell [1990] ScotCS CSOH - 3
15 Aug 1990
SCS

Scotland

[ Bailii ]
 
Royal Bank of Scotland v Watt [1990] ScotCS CSIH - 2
6 Nov 1990
SCS

Scotland

[ Bailii ]
 
McKay v Her Majesty's Advocate [1990] ScotHC HCJAC - 1
21 Dec 1990
HCJ

Scotland, Crime

[ Bailii ]
 
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.