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: 1994 To: 1994
This page lists 33 cases, and was prepared on 20 May 2019.
Perrin v Perrin [1994] SC 45
1994
IHCS
Children, Scotland
Child Abduction and Custody Act 1985 5
1 Cites
1 Citers
Bennett, Petitioner [1994] SCCR 902; [1995] SLT 510
1994
Scotland
1 Citers
Henderson v City of Glasgow District Council [1994] SLT 263
1994
Scotland
1 Citers
Margrie Holdings Ltd v City of Edinburgh District Council 1994 SLT 971; 1994 SC 1
1994
IHCS
Hope, Lord President
Damages, Scotland
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 foreseeable and that this was ultimately a question of fact in each case.
1 Cites
1 Citers
McDonald v Secretary of State for Scotland 1994 SC 234
1994
ScSf
Scotland, Prisons
The pursuer was a serving prisoner. He said he had been repeatedly searched without lawful authority, warrant or justifiable cause. He raised an action of reparation in the sheriff court in which he sought damages from the Secretary of State for each illegal search. He also sought interdict against him from carrying out any searches without lawful authority, warrant or justifiable cause and interim interdict. The sheriff refused to grant interim interdict. He held that the crave for interdict was incompetent by virtue of section 21 of the 1947 Act. The pursuer was also challenging standing orders and that this was a matter which would require to be made the subject of judicial review in the Court of Session.
Crown Proceedings Act 1947 21
1 Cites
1 Citers
Clark v McLean; IHCS 1994 - 1994 SC 410
Tierney v Valentine 1994 SCCR 697
1994
Scotland, Animals, Crime
A Boxer dog had attacked and bitten two children on a swing in a children's play park. The court found that the dog which was in the charge of the appellant entered the play area. It was not on a lead. It approached the swings and circled round them and then started to bark and jump at the two children. One of the children began to scream, whereupon the dog bit that child in the foot. It then bit the other child on the leg and bit the first child again on the leg. This child got off the swing and started to run away. The dog bit her arm. It was at that point that the appellant intervened, caught the dog and put it on a lead". The sheriff had noted the terms of section 10(3) saying: "Having regard to the evidence, I took the view that during the course of the events on (the date of the incident) the dog became dangerously out of control because, as matters developed, there were grounds for reasonable apprehension that it would injure someone, although there were no such grounds at the outset". Held: The sherrif's approach was rejected: "The occasion which arose in this case, to which the definition in section 10(3) should be referred, was the occasion of the incident described in the findings. That was a single incident and it was an incident at the beginning of which this dog was found not to be dangerously out of control. Since it was a single incident with no appreciable interval, there was no stage at which it could be said that there were grounds for reasonable apprehension that the dog would injure any person before it was all over and the dog was put on the lead. Accordingly, the essential basis for a finding of guilt on this charge was not present".
Dangerous Dogs Act 1991
1 Cites
1 Citers
Brixey v Lynas Ind Summary, 22 November 1993; 1994 SC 606
1994
Scotland, Children
"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 & 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'".
1 Citers
M v Ferguson 1994 SCLR 487
1994
Scotland, Children
The court looked at whether a young child was competent to give evidence.
1 Citers
Frew v Field Packaging Scotland Ltd 1994 SLT 1193
1994
Lord Prosser
Scotland, Litigation Practice
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
Rules of the Court of Session
1 Citers
Daks Simpson Group plc v Kuiper 1994 SLT 689
1994
Lord Sutherland
Scotland, Contract
The creditor sought summary judgment for an account for commissions earned. In a 'without prejudice' letter the defendant's director said that he was prepared to accept that he had received such commissions in stated amounts. Held: Lord Sutherland: "I see no objection in principle to a clear admission being used in subsequent proceedings, even though the communication in which it appears is stated to be without prejudice." and " 'Without prejudice' in my view means, without prejudice to the whole rights and pleas of the party making the statement. If, however, someone makes a clear and unequivocal admission or statement of fact, it is difficult to see what rights or pleas could be attached to such a statement or admission other than perhaps to deny the truth of the admission which was made. I see no objection in principle to a clear admission being used in subsequent proceedings, even though the communication in which it appears is stated to be without prejudice. I would adopt what is said by Lord Wylie in Watson-Towers and the Canadian view expressed in Kirschbaum."
1 Cites
1 Citers
Bovis Construction (Scotland) Ltd v Whatlings Construction Ltd 1994 SC 351
1994
OHCS
Lord President Hope
Scotland, Contract
Correspondence preceding a contract could be looked at to determine the circumstances in which a provision in the contract was intended to apply.
Lord President Hope said: "In my opinion the issue which has arisen between the parties in this case requires that reference should be made to the previous correspondence in order to resolve it. This is because the essential point which is in dispute is not the meaning of the words and phrases used in the . . agreement but the circumstances in which it was intended to apply. The ordinary rules for the construction of written documents, including contracts such as that entered into in the present case, exclude reference to extrinsic evidence, unless there is an ambiguity in the words used which requires to be resolved by the use of such evidence. . But . . it is legitimate to look to the surrounding circumstances and see what was the intention of the parties, expressed in the words used, as they were with regard to the particular circumstances and facts with regard to which they were used . . We were referred by the pursuers' counsel to a number of cases where it was recognised that extrinsic evidence was admissible to identify something mentioned in the contract, such as a person, thing or document referred to in it . . The purpose of such evidence is not to modify the contract but to apply it to the facts as explained by the extrinsic evidence."
1 Citers
McCabe v McLellan 1994 SC 87
1994
IHCS
Lord President Hope
Scotland, Limitation
An action of professional negligence was brought against two doctors for alleged negligence when the pursuer was a young child. He was 18 in 1986 and raised an action against the first defender within the triennium provided for in section 17(4) of the 1973 Act. When the action was raised he understood that the second defender had died but when he discovered that the second defender was, in fact, still alive he brought him into the action one month after the expiry of the triennium. Held: "The discretion which is to be exercised under section 19A(1) has been said to be unfettered, and it is necessary to balance all the circumstances of the case and also the interests of all parties concerned . . It is for the pursuer to satisfy us that it would be equitable to allow him to proceed with his action . ."
1 Citers
Neill v Greater Glasgow Health Board [1996] SC 185; [1994] SLR 673
1994
Scotland, Health and Safety
1 Citers
Clark v Lindale Homes Limited 1994 SC 210
1994
SCS
Lord President Hope, Lord Morison
Scotland, Land
The court set out the conditions to found a claim for breach of warrandice on a land purchase: "Although eviction did not mean physical removal, it did involve the emergence of a real or threatened burden on the property which had to come from a competing title - holder, that title itself being beyond doubt." Where the pursuer did not aver that any action had been taken by the party with the competing title, the pursuer had no relevant case.
Lord President Hope said: "As I understand the statement of principle in that paragraph, eviction occurs when there is a loss to the buyer due to the fact that someone else has a competing title which is beyond doubt. This is a fact which can be demonstrated judicially, or by the seller's action admitting that there is such a defect, or by proof that the defect is unquestionable." and
"The significance of the warning in sec 895 of Bell's Principles that warrandice is an obligation to indemnify, not to protect, is that the mere possibility that there may be an eviction, where the defect is unclear, will not do. There must be eviction of the subject from the grantee so that the defect in his title is placed beyond doubt. But there seems to me to be no more in this point than that there is no right to an indemnity until there has been a clear breach of the absolute warrandice which has caused loss to the grantee. The warrandice is breached when there is shown to be a competing title which will inevitably prevail in competition with that which has been given to the purchaser. Actual eviction, or the threat of eviction which occurs upon a challenge being made by the party with the competing title, will enable the grantee to make a claim on the warrandice".
Though actual eviction in the sense of ejection or removal from the property is not required: "This still leaves open, however, the question whether it is essential, in order to bring the obligation to indemnify into existence, that a challenge to the pursuer's title has been made by the party with the prevailing title or whether it is sufficient that there is a defect in the title which has caused loss to the grantee and would, if it had been insisted upon, have been unquestionable . . more is required to justify a claim under the warrandice clause than a mere deficiency in the title of the grantee". And
"As Lord McLaren observed in Welsh v Russell at p. 773, the obligation of warrandice remains latent until the conditions that give it force and effect have come into existence. The fact that the pursuer did not acquire a good title to the flat is in itself not sufficient to give rise to the obligation to indemnify. She was not entitled to incur expense to remove the defect simply in order to protect herself against the possibility of loss on its re-sale. Something else was required, and according to expressions used in the authorities it is eviction which gives rise to the claim. The word "eviction" might be thought to imply that the loss is in some respect due to action by the party who has the competing title to assert his rights".
Lord Morison said: "It is of course obvious that 'eviction' does not mean physical removal. But it is in my view equally clear on these authorities, and confirmed by the case of Welsh v Russell, that it does involve the emergence of a real or threatened burden on the property. The word itself in any event clearly indicates this to be the case. If such a burden has been judicially established, the position is clear. If it has not been judicially established the warrandice clause may still be invoked if eviction in the strict sense is threatened, provided that the threat is based on an unquestionable right. Such a threat could only come as a result of a demand from the competing title-holder, for no one else has any right, let alone an unquestionable right to make it. In my opinion the absence of any averment by the pursuer that she suffered loss either as a result of the constitution of a real burden by judicial decree or as a result of a demand by the competing title-holder, renders her case irrelevant".
1 Citers
Hma v Forbes (Steven Graeme) [1994] ScotHC HCJ - 1
14 Jan 1994
HCJ
Scotland, Crime
[ Bailii ]
Jamieson v HM-Advocate [1994] ScotHC HCJ - 2
19 Jan 1994
HCJ
Scotland, Crime
[ Bailii ]
Fortune v Fraser; IHCS 2-Feb-1994 - Times, 02 February 1994
McDonald v Secretary of State for Scotland Times, 02 February 1994; 1994 SC 234
2 Feb 1994
IHCS
Lord Justice Clerk Ross
Scotland, Litigation Practice
The pursuer, a prisoner, complained that he had been subject to repeated searches which he claimed were illegal. He sought damages and an injunction. Held: The action which the pursuer had raised was an ordinary action in the sheriff court was an action against the Crown, that section 21 of the 1947 Act applied and that the crave for interdict was incompetent. The 1947 Act deprived Scottish litigants of their previous right to obtain interdict and interim interdict against the Crown. Orders to that effect could not be pronounced in either the sheriff court or the Court of Session. An House of Lords decision on an action against a state was not necessarily binding in Scotland. There were formidable difficulties in the way of a submission that the decision in M v The Home Office could be followed in Scotland, on the view that application to the supervisory jurisdiction of the Court of Session in an application for judicial review under Rule of Court 260B of the Rules of the Court of Session 1965 did not constitute civil proceedings within the meaning of section 21.
Crown Proceedings Act 1947 21
1 Cites
1 Citers
Mackie v H M Advocate Times, 30 March 1994
30 Mar 1994
OHCS
Scotland
Insider dealing counselling evidence must go beyond merely circumstantial.
Company Securities (Insider Dealing) Act 1985
Monckton v Lord Advocate Times, 12 May 1994
12 May 1994
OHCS
Scotland
UK validly made contributions to European Social policy costs.
McArthur v Strathclyde Regional Council Times, 20 May 1994
20 May 1994
OHCS
Scotland
Where a statute has several purposes the sections must be construed individually.
Lord Advocate v Chung [1994] ScotCS CSIH - 4
8 Jul 1994
SCS
Scotland
[ Bailii ]
Church Commissioners for England v Abbey National; SCS 15-Jul-1994 - [1994] ScotCS CSIH - 2; 1994 SCLR 867; 1994 SLT 959; 1994 SC 651
Lord Advocate v Black Times, 06 September 1994
6 Sep 1994
OHCS
Scotland
'in the name of Lord Advocate' meant the Lord Advocate, and he was personally competent to pursue an action.
Blythswood Investments (Scotland) Ltd v Clydesdale Electricity Stores Ltd Times, 20 October 1994
20 Oct 1994
OHCS
Scotland, Landlord and Tenant
Landlords were entitled to terminate a lease for their own reasons when a statute gave them the right.
Hm Advocate v R Times, 21 October 1994
21 Oct 1994
HCJ
Scotland
There is an absence of a power to transfer a remand prisoner in England for trial in Scotland.
Universal Import Export Gmbh v Bank of Scotland [1994] ScotCS CSIH - 5
28 Oct 1994
SCS
Scotland
[ Bailii ]
Mckenzie Trustees v Highland Regional Council Times, 04 November 1994
4 Nov 1994
IHCS
Scotland
A planning permission does not invalidate a subsequent incompatible local plan.
Town and Country Planning (Scotland) Act 1972 232
Blair v Lochaber District Council Times, 04 November 1994
4 Nov 1994
OHCS
Judicial Review, Employment, Scotland
A decision made within the confines of an employment contract is not susceptible to judicial review since no sufficient public law interest is involved even though the employer was a public authority.
Regina v Commissioner of Police of the Metropolis and Another Ex Parte Bennett; QBD 10-Nov-1994 - Times, 10 November 1994; Ind Summary, 09 January 1995
Morgan Guaranty v Lothian Regional Council 1995 SLT 299; 1995 SCLR 225; [1994] ScotCS CSIH - 3; 1995 SC 151
1 Dec 1994
SCS
Lord President (Hope), Lord Mayfield, Lord Clyde, Lord Cullen and Lord Kirkwood
Scotland
1 Citers
[ Bailii ]
Lord Advocate's Reference (No 1 of 1994) [1994] ScotHC HCJAC - 3; 1996 JC 76; 1995 SLT 248; 1995 SCCR 177
15 Dec 1994
HCJ
Lord Justice-Clerk (Ross), Lord Murray and Lord Morison
Scotland, Crime
X faced trial on charges including a culpable homicide based on an allegation of supplying amphetamines to a group including the victim, who died. X said there was no case to answer in that the chain of causation was broken because (i) the deceased actually sought the supply of the drug, and when it was obtained divided it and selected the dose which she would take; and (ii) because X did not instigate, suggest or encourage the ingestion of the drug. The Lord Advocate appealed against the rulingin X's favour.
1 Citers
[ Bailii ]
