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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: 1997 To: 1997

This page lists 29 cases, and was prepared on 20 May 2019.

 
Smith v Lees 1997 SCCR 139
1997
HCJ

Scotland, Criminal Evidence
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.
1 Cites

1 Citers


 
Elliott (No 2) v HM Advocate 1997 SLT 1229
1997

Lord Justice Clerk Ross
Criminal Sentencing, Scotland
When passing a mandatory sentence of life imprisonment a trial judge was required by section 218 of the 1975 Act to specify the date of the commencement of the sentence The question whether a mandatory life sentence should be backdated was not an academic one, because the date at which the sentence was held to have commenced might affect the date at which the Preliminary Review Committee could first consider the case of the prisoner.
Criminal Procedure (Scotland) Act 1975
1 Citers


 
M v M (Abduction: England and Scotland) [1997] 2 FLR 263
1997
CA
Butler-Sloss LJ
Children, Jurisdiction, Scotland
A couple went to live in Scotland with their children. The father was Scottish: the mother English. The mother left the family home and took the children to England without the father's knowledge, and obtained an ex-parte residence order and a prohibited steps order to prevent the father from removing the children. She also issued a divorce petition. The Circuit Judge in England made an ex-parte injunction restraining the father from instituting proceedings in Scotland. The judge decided that England was the appropriate jurisdiction for the divorce proceedings. The father appealed. Held: The court allowed his appeal. The judge had been wrong to decide either that the children had no habitual residence or that they were habitually resident in England. The grant of an injunction was inconsistent with the legislative framework provided by the 1973 Act. Undeer Schedule 1, paragraph 8(1), if a petition was presented in that part of the United Kingdom where parties were habitually resident when they last lived together, then any earlier petition presented in a different part of the United Kingdom by the other party to the marriage had to be stayed in favour of the petition presented in the place where the parties were habitually resident. Parliament not only permitted the father to present his petition in Scotland, but expressly provided that if he did so, the mother's English proceedings should be stayed, and the English court should thereafter have no jurisdiction to make an order under Section 8 of the Children Act 1989 unless it was necessary to do so in order to deal with urgent matters.
Domicile and Matrimonial Proceedings Act 1973
1 Citers


 
McCarvel v Strathclyde Fire Board 1997 SLT 1015
1997
OHCS

Scotland, Personal Injury
The pursuer sought damages for personal injuries. His previously asymptomatic pre-existing condition would have become symptomatic by the date of the proof. The valuation of £5,000 proceeded on the basis that the pursuer's symptoms and disabilities up to the date of the proof were attributable to the accident, but that for the future they were not so attributable.
1 Citers


 
Addison v Denholm Ship Management (UK) Ltd [1997] ICR 770
1997
EAT
Lord Johnston
Employment, Scotland
An issue before the EAT was whether regulations made under section 2(2) of the 1972 Act applied to the crew of a floating hotel/ship in the North Sea. Held: According to European law the UK could choose whether or not to apply employment protection to this crew. The employers said that our regulations did not intend to confer employment protection upon the crew but that if, on their proper construction, our regulations did purport to do so, they would be ultra vires since this was not a Community obligation. An Act of Parliament was needed, not merely secondary legislation. Lord Johnston: "[Counsel for the crew argued that] if the issue of ultra vires or intra vires did arise then the matter was now governed by a decision of the Divisional Court, Reg. v. Secretary of State and Industry, Ex parte UNISON [1996] ICR 1003. That case was concerned with proper construction of the phrase "matters related to any Community obligation" in section 2(2)(b) of the European Communities Act 1972. In his judgment, Otton LJ held, at p. 1014, that the phrase "related to" would be given its natural, everyday meaning of not distinct, separate, or divorced from a Community obligation rather than the alternative meaning suggested by the applicants of "tangential to or consequential to" the implementation of a Community obligation. That broad construction of the phrase, said counsel, meant that, so long as there was in effect a connection between the terms under consideration of the subordinate legislation and the primary legislation which it was implementing under a Community Directive, the minister was not exceeding his powers in the main Act … " The regulations were no wider than the Directive, but "Assuming, finally, that the issue of construction which we prefer is erroneous, the matter of vires does arise. Without venturing a view as to whether Reg. v. Secretary of State for Trade and Industry, Ex parte UNISON [1996] ICR 1003 is correctly decided on its own facts, we confess considerable concern with the general approach of Otton LJ if he is seeking to suggest that "related to" in section 2(2)(b) of the European Communities Act 1978 [sc. 1972] can be used to enable a minister to widen, by regulation, the main thrust or effect of the Directive it is seeking to implement. In our opinion, as a matter of general law in relation to primary and subordinate legislation, as stated by Lord Mackay of Clashfern LC in Hayward v. Cammell Laird Shipbuilders Ltd (No. 2) [1988] ICR 464, 473, if the Directive is to be regarded as the parent, the child cannot be larger, wider or have greater implications than its parent allows. Accordingly, if the effect of regulation 2(2) of the Regulations of 1981 is to confer a lesser exclusion, and thus a wider benefit, to workers otherwise excluded by the Directive, we consider that the regulation is ultra vires the enabling power, and would require primary legislation as contemplated by article 7 of the Directive (77/187/EEC)."
European Communities Act 1972 82(2)
1 Citers


 
Glasgow City Council v Zafar [1997] SLT 281; [1997] 1 WLR 1659
1997
SCS
The Lord Justice Clerk, Lords McCluskey and Morison
Discrimination, Scotland
The house considered the burden of proof in cases involving allegations of discrimination. Held: Lord Morison "The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the Act of 1976 is not one of less favourable treatment than that which would have been accorded by a reasonable employer in the same circumstances, but of less favourable treatment than that which had been or would have been accorded by the same employer in the same circumstances. It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances."
The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light on the question whether he has treated the employee "less favourably" for the purposes of the 1976 Act: "The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the Act of 1976 is not one of less favourable treatment than that which would have been accorded by a reasonable employer in the same circumstances, but of less favourable treatment than that which had been or would have been accorded by the same employer in the same circumstances. It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances."
Race Relations Act 1976
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Rollo v HM Advocate [1997] Scots Law Times 958
1997

Lord Mulligan
Scotland, Criminal Practice
The court discussed the nature of a document as applied to an electronic notebook seized under the 1971 Act: "It seems to us that the essential essence of a document is that it is something containing recorded information of some sort. It does not matter if, to be meaningful, the information requires to be processed in some way such as translation, decoding or electronic retrieval".
Misuse of Drugs Act 1971 23(3)(b)
1 Citers


 
Scottish Midland Co-operative Soc Ltd v Cullion [1997] IRLR 261
1997


Employment, Scotland

1 Citers


 
Lardner v Renfrew District Council 1997 SC 104
1997

Lord President Rodger
Scotland, Administrative
Rodger LP said that when construing the phrase 'a person aggrieved' it was necessary to have regard to the particular legislation involved, and the nature of the grounds on which the appellant claims to be aggrieved.
1 Citers



 
 T, Petitioner; IHCS 1997 - 1997 SLT 724
 
Moss v Howdle [1997] ScotHC HCJ - 1
31 Jan 1997
HCJ

Scotland, Crime

[ Bailii ]

 
 Smith v Governor and Company of The Bank of Scotland; HL 6-Feb-1997 - Times, 23 June 1997; [1997] 2 FLR 862; 1997 SC (HL) 111; [1997] UKHL 26
 
Williamson v Williamson [1997] ScotCS CSIH - 3
11 Feb 1997
SCS

Scotland

[ Bailii ]
 
S v M (Minor: Access Order) (Scotland) Times, 12 February 1997
12 Feb 1997
HL

Children, Scotland
A party seeking an access order has the onus to show that such contact will be in the child's best interests. There is no rule of law to say that contact will be given.
Law Reform (Parent and Child) (Scotland) Act 1986 3(2)


 
 Mulvey v Secretary of State for Social Security; HL 20-Mar-1997 - [1997] UKHL 10; 1997 SC (HL) 105
 
Bank of Scotland v Dunedin Property Investment Co Ltd Times, 16 May 1997; 1998 SC 657
16 May 1997
OHCS

Financial Services, Contract, Scotland
The cost of an interest rate swap brokerage agreement was not covered by an indemnity against 'all costs charges and expenses incurred'.
1 Cites

1 Citers


 
Kelly v Kelly [1997] ScotCS CSIH - 2
24 May 1997
SCS

Scotland

[ Bailii ]
 
Bett v Hamilton (Aka Bett v Brown) [1997] ScotHC HCJ - 3
23 Jul 1997
HCJ

Scotland, Crime

[ Bailii ]
 
United Wire Ltd v Screen Repair Services (Scotland) Times, 20 August 1997
20 Aug 1997
ChD

Costs, Scotland
A court may make no order for costs where defendant although successful had caused excessive costs by pursuing unsuccessful points.

 
Elf Caledonia Ltd v London Bridge Engineering Ltd and Northern Industrial and Marine Services Co Ltd and British Telecommunications Plc and Wood Group Engineering Contractors Ltd and Eastman Christensen Ltd and Kelvin International Services Ltd and Sten [1997] ScotCS 1
2 Sep 1997
SCS
Lord Caplan
Scotland, Negligence

1 Cites

1 Citers

[ Bailii ]

 
 Clydesdale Bank plc v Davidson and Others (Scotland) Clydesdale Bank plc v Davidson and Others; HL 16-Oct-1997 - Times, 20 December 1997; [1997] UKHL 55

 
 Strathclyde Regional Council v Zafar; Zafar v Glasgow City Council; HL 16-Oct-1997 - Times, 08 December 1997; Gazette, 17 December 1997; Gazette, 26 February 1998; [1997] UKHL 54; [1997] 1 WLR 1659; [1997] IRLR 229 CS; [1998] ICR 120; 1998 SC (HL) 27; [1998] 2 All ER 953; 1998 SLT 135

 
 City of Edinburgh Council v Secretary of State for Scotland and Another; Same v Same (Conjoined Appeals); HL 31-Oct-1997 - Gazette, 05 November 1997; Times, 31 October 1997; [1997] UKHL 38; [1997] 1 WLR 1447; [1998] 1 All ER 174; 1998 SC (HL) 33
 
King v East Ayrshire Council Times, 03 November 1997; 1998 SC 182
3 Nov 1997
IHCS

Education, Scotland, Judicial Review
An application for the closure of a school need not be based upon an assessment of school's pupil capacity as at time of assessment. The court may exercise its discretion to refuse judicial review where that is appropriate, having regard to the public interest in public authorities and third parties not being kept in suspense as to the legal validity of a decision for any longer than is absolutely necessary in fairness to the person affected by it.
Education (Publication and Consultation (Scotland)) Regulations 1985 (1985 No 1558) am
1 Cites

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 Girvan v Inverness Farmers Dairy and Another; HL 13-Nov-1997 - Times, 15 December 1997; [1997] UKHL 47; 1998 SC (HL) 1; 1998 SLT 21; 1998 SCLR 72
 
Allied Domecq Spirits and Wine Ltd v Murray Mcdavid Ltd Times, 09 December 1997
9 Dec 1997
SCS

Intellectual Property, Scotland
Old Trade Mark infringement cases are to be viewed only with great care; on balance of convenience, the use of trade marked place name is to be allowed.
Trade Marks Act 1994 11(2)(b)

 
Mcleod v Her Majesty's Advocate (No 2) [1997] ScotHC 2; 1998 SLT 233; 1998 GWD 4-161; 1998 JC 67; 1998 SCCR 77
19 Dec 1997
HCJ
Lord Justice General Rodger
Scotland, Criminal Practice
In a criminal case, the duty of disclosure was an aspect of the role of the Crown.
1 Citers

[ Bailii ]
 
Alistair Mcleod v Her Majesty's Advocate (No 2) [1997] ScotHC 1; 1998 JC 67
19 Dec 1997
HCJ
Lord Justice General
Scotland, Criminal Practice, Human Rights
A full court applied the guidance in Edwards -v- United Kingdom when considering the duty of the Crown to make disclosure under Scots law: "Our system of criminal procedure therefore proceeds on the basis that the Crown have a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused." The court would order the production of documents if satisfied that their production "would be likely to be of material assistance to the proper preparation or presentation of the accused's defence". The duty was to disclose information that "is significant to an indicated line of defence" or is likely to be of real importance "to any undermining of the Crown case or to any casting of reasonable doubt on it".
1 Cites

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[ Bailii ] - [ ScotC ]
 
Quantum Claims Compensation Specialists Ltd v Powell [1997] ScotCS CSIH - 4
19 Dec 1997
SCS

Scotland

[ Bailii ]
 
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