Tag: Scotland

Birse v HM Advocate: HCJ 28 Jun 2000

Where a magistrate had heard a proper description of the reasons for granting a search warrant, it was not an abuse of the suspect’s human rights to execute it, even though he had not had chance to make any representations about the search. The right to an effective remedy was not to be enshrined in UK law, and this came close to such a claim.

Citations:

Times 28-Jun-2000

Jurisdiction:

Scotland

Human Rights, Criminal Practice

Updated: 12 December 2022; Ref: scu.78422

Udny v Udny: SCS 14 Dec 1867

Circumstances in which held that a grandfather, not having lost his Scotch domicile of origin, transmitted the same to his son, who, not having lost the same, legitimated his son born out of wedlock per subsequens matrimonium. Held unnecessary to consider whether a Scotch domicile at the date of the marriage sufficient for legitimation per subsequens matrimonium.

Citations:

[1867] SLR 3 – 109

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Appeal from – Udny v Udny HL 1869
Revival of domicile of origin after loss of choice
The House considered the domicile of the respondent’s father at the time of the respondent’s birth. The father had been born in Scotland but had left Scotland and taken a lease of a house in London. He had a castle in Scotland but that was not . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 09 December 2022; Ref: scu.575102

Skelton and His Tutor v Brown: SCS 11 Jul 1028

Not competent to object against a Party’s title, without a Legal Interest. – What understood to be a Legal Interest.
A haver of writs was ordained to deliver them up to a tutor dative, who had found caution, notwithstanding the defender offered to prove, that there was a tutor nominated in the testament.

Citations:

[1028] Mor 7800

Links:

Bailii

Jurisdiction:

Scotland

Litigation Practice

Updated: 09 December 2022; Ref: scu.547664

Watt v Fairfield Shipbuilding and Engineering Company Limited and Upper Clyde Shipbuilders Ltd and Energy and Marine (Weirside) Limited: SCS 3 Nov 1998

The pursuer sought reparation against three former shipbuilders. He had developed extensive bilateral pleural plaques and asbestosis.
Held: Lord Gill felt that it was possible to give the proviso a satisfactory meaning, notwithstanding his conclusion that the 1931 Regulations applied only to the asbestos industry: ‘the Regulations related to those processes by which the raw material was treated in the course of its being manufactured into asbestos products of various kinds’

Judges:

Lord Gill

Citations:

[1998] ScotCS 48

Links:

Bailii

Statutes:

Asbestos Industry Regulations 1931 (1931 No 1140)

Jurisdiction:

Scotland

Cited by:

Disapproved – Shell Tankers UK Limited v Jeromson; The Cherry Tree Machine Company Limited, Shell Tankers UK Limited v Dawson CA 2-Feb-2001
The claimant’s husband had been employed as an apprentice fitter in a factory which manufactured dry cleaners’ presses. For two years, it was part of his job to mix asbestos flock with water in a bucket and then apply it to the plattens of a press . .
Cited – McDonald v National Grid Electricity Transmission Plc SC 22-Oct-2014
Contact visiting plants supported asbestos claim
The deceased had worked as a lorry driver regularly collecting pulverized fuel ash from a power station. On his visits he was at areas with asbestos dust. He came to die from mesothelioma. His widow now pursued his claim that the respondent had . .
Lists of cited by and citing cases may be incomplete.

Personal Injury

Updated: 09 December 2022; Ref: scu.163364

Redrow Homes Ltd v Bett Brothers Plc: IHCS 2 May 1997

A pursuer in an action for breach of copyright must take either an account of profits or additional damages but not both.

Citations:

Times 02-May-1997

Statutes:

Copyright Designs and Patents Act 1988 96(2) 97

Jurisdiction:

Scotland

Cited by:

Appeal from – Redrow Homes Ltd and others v Bett Brothers Plc and others HL 22-Jan-1998
Additional damages under section 97 of the 1988 Act, can only be awarded with compensatory damages, not with a claim for damages under section 96. . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Damages

Updated: 07 December 2022; Ref: scu.85931

Hamilton v Hamilton: SCS 11 Feb 1540

Na exception of iniquitie, nullitie, or uther quhatsumever, may be proponit or alledgit contrare the executioun of an decrete-arbitral lauchfullie gevin: Bot the proponer thairof sould use and alledge the samin be way of actioun gif he pleisis for reduction and retractatioun of the said decrete.

Citations:

[1540] Mor 662

Links:

Bailii

Jurisdiction:

Scotland

Litigation Practice

Updated: 06 December 2022; Ref: scu.543980

A v B: SCS 25 Jan 1540

Gif the creditour makis and constitutis ane assignay and cessioner, to ony debt auchtand to him, and makis intimatioun of the samin assignatioun to the debtour, the samin is sufficient in all time cuming to seclude him fra all actioun that he had, or may have, agains the said debtour, albeit he that is assignay mak na inimatioun of the said assignatioun to the debtour.

Citations:

[1540] Mor 843

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 06 December 2022; Ref: scu.543979

Robb’s Trust, The Governors of, Against Edwards: SCS 26 May 2015

Extra Division, Inner House. The House was asked whether, in respect of a lease governed by the Agricultural Holdings (Scotland) Act 1991, in terms of which the landlords have served on the tenant a notice to quit which is disputed by the tenant, and the dispute proceeds to arbitration, section 23(4) of the Act has the effect that the lease continues and rent remains due and payable until the date of issue of the arbiter’s award.

Judges:

Lord Menzies

Citations:

[2015] ScotCS CSIH – 39

Links:

Bailii

Statutes:

Agricultural Holdings (Scotland) Act 1991

Jurisdiction:

Scotland

Landlord and Tenant, Agriculture

Updated: 30 November 2022; Ref: scu.547650

Lord Advocate’s Reference (No 1 of 1985): HCJ 1986

The Court a claim as to the relevancy of an indictment of perjury.
Held:
Lord Justice General Emslie said: ‘All that is required is that it should be clearly understood that a charge of perjury will not lie unless the evidence alleged to be false was both competent and relevant at the earlier trial either in proof of the libel or in relation to the credibility of the witness’.

Judges:

Lord Justice General Emslie

Citations:

1986 JC 137

Jurisdiction:

Scotland

Cited by:

Cited – Her Majesty’s Advocate v Coulson HCJ 1-Jun-2015
Note. The accused faced a charge of perjury. In an earlier trial, itself for perjury, the defender (the first defender), acting without legal representation had called the now accused to give evidence as to whether accused, as editor of the News of . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 30 November 2022; Ref: scu.547553

Petition of Friends of Loch Etive Against Argyll and Bute Council: SCS 27 May 2015

Outer House – Petition for Judicial Review of a decision of the Argyll and Bute Council granting planning permission for the development of a 10-cage rainbow trout farm on Loch Etive in Argyll, at the site known as ‘Etive 6’.

Judges:

Lord Burns

Citations:

[2015] ScotCS CSOH – 61

Links:

Bailii

Jurisdiction:

Scotland

Planning

Updated: 30 November 2022; Ref: scu.547649

Dilip Upreti and Others (Aps) v The Secretary of State for The Home Department: SCS 4 Jun 2015

Application for permission to appeal against a decision of the Upper Tribunal. The application is made by each of Dilip Upreti, his wife and two children. The Secretary of State for the Home Department appears as the respondent.

Judges:

Lord Brodie

Citations:

[2015] ScotCS CSIH – 45

Links:

Bailii

Jurisdiction:

Scotland

Immigration

Updated: 30 November 2022; Ref: scu.547653

McShane v Burnwynd Racing Stables Ltd: SCS 5 Jun 2015

‘This case concerns an accident at the defenders’ racing stables on 25 March 2011. The pursuer was employed there by the defenders as trainer or assistant trainer. He was exercising a horse (‘Psalm 23′) on the training gallop. At the far end of the gallop, just before the third or final bend, his horse fell and landed on him. He was badly hurt. His left arm was injured and he has been left with a permanent impairment to his left side. He sues the defenders on the basis, in short, that the gallop was unsafe and that that was the cause of the fall.’

Judges:

Lord Glennie

Citations:

[2015] ScotCS CSOH – 70

Links:

Bailii

Statutes:

Work at Height Regulations 2005, Workplace (Health, Safety & Welfare) Regulations 1992

Jurisdiction:

Scotland

Health and Safety, Negligence, Personal Injury

Updated: 30 November 2022; Ref: scu.547657

Hood v Anchor Line (Henderson Brothers) Ltd: SCS 25 Feb 1916

Court of Session Inner House Second Division ‘Notice. – This ticket is issued to and accepted by the passenger subject to the following conditions’
In an action at the instance of a passenger on an Atlantic steamer against the shipping company for damages for injuries sustained by him on the voyage the pursuer averred that his attention had not been drawn to conditions on the ticket limiting the liability of the shipowner to pounds 10 in the case of accident, and that he was not aware of the same. The Court allowed a proof before answer as to the terms and conditions of the contract of carriage between the parties.
Neither the shipowner nor the passage broker or agent is responsible for loss of or injury to the passenger, or his luggage or personal effects, or delay on the voyage, arising from steam, latent defects in the steamer, her machinery, gear, or fittings, or from the act of God, king’s enemies, perils of the sea or rivers, restraints of princes, rulers and people’s barratry or negligence in navigation of the steamer, or of any other vessel.
Neither the shipowner nor the passage broker or agent is in any case liable for loss of or injury to the passenger or his luggage, or delay in delivery of luggage or personal effects of the passenger, beyond the amount of pounds 10 in the case of each first-class passage, or pounds 5 in the case of each second-class or steerage passage, unless the value of the passenger’s luggage in excess of that sum be declared at or before the issue of this contract ticket, and freight at current rates for every kind of property (except pictures, statuary, and valuables of any description, upon which one per cent. will be charged) is paid.

Judges:

Lord Anderson, Ordinary

Citations:

[1916] SLR 429

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

See Also – Hood v Anchor Line (Henderson Brothers) Ltd SCS 31-Oct-1917
Court of Session Inner House Second Division – Carriage of Passengers – Conditions on Ticket Limiting Liability of Carrier – Notice of Conditions – A passenger on a trans-Atlantic steamer, who brought an action against the owners thereof for damages . .
Cited – Hood v Anchor Line (Henderson Bros) Ltd HL 1-Jul-1918
An English court may exercise its jurisdiction in personam over the liquidator to enforce the contract between the chargee and the company, and may require the liquidator to pay the proceeds to the chargee, The Scottish courts did not recognise the . .
Lists of cited by and citing cases may be incomplete.

Contract, Personal Injury

Updated: 26 November 2022; Ref: scu.618272

Hood v Anchor Line (Henderson Brothers) Ltd: SCS 31 Oct 1917

Court of Session Inner House Second Division – Carriage of Passengers – Conditions on Ticket Limiting Liability of Carrier – Notice of Conditions – A passenger on a trans-Atlantic steamer, who brought an action against the owners thereof for damages for injuries sustained by him during the voyage, averred that his attention had not been drawn to conditions on the ticket limiting the liability of the shipping company to pounds 10 in the event of an accident occurring. Held that in the circumstances the shipowners had given reasonable notice of the conditions to the passenger.

Judges:

Lord Anderson, Ordinary

Citations:

[1917] SLR 48

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Hood v Anchor Line (Henderson Brothers) Ltd SCS 25-Feb-1916
Court of Session Inner House Second Division ‘Notice. – This ticket is issued to and accepted by the passenger subject to the following conditions’
In an action at the instance of a passenger on an Atlantic steamer against the shipping company . .

Cited by:

Appeal from – Hood v Anchor Line (Henderson Bros) Ltd HL 1-Jul-1918
An English court may exercise its jurisdiction in personam over the liquidator to enforce the contract between the chargee and the company, and may require the liquidator to pay the proceeds to the chargee, The Scottish courts did not recognise the . .
Lists of cited by and citing cases may be incomplete.

Contract, Personal Injury

Updated: 26 November 2022; Ref: scu.616831

Cleghorn v Medwin Investments Ltd and Another: SCS 1 Jul 2016

‘These reclaiming motions arise out of the grant by a discharged bankrupt to the reclaimers of a number of dispositions and standard securities of property forming part of his sequestrated estate. ‘

Citations:

[2016] ScotCS CSIH – 49, 2016 GWD 22-405, 2016 SLT 923, 2016 SC 824

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 26 November 2022; Ref: scu.566803

M’Intosh and Others (Stevenson’s Trustees), Petitioners: SCS 25 Mar 1878

Certain subjects, held by testamentary trustees for behoof of A in liferent allenarly and of his children in fee, had been acquired by the Glasgow Improvement Trustees in virtue of the powers conferred upon them by their Act of Parliament, and the sum consigned by the said Improvement Trustees had been invested in a heritable security under the direction of the Court of Session, as provided by the 68th section of the Lands Clauses Act (8 and 9 Vict. cap. 19), the Improvement Trustees being found liable in the expenses of the application to the Court. The testamentary trustees eight years thereafter applied to the Court for authority to discharge the security held by them, the debtor being desirous of paying up the same, and craved the Court to find the Improvement Trustees liable in the expenses of discharging the security of consigning the money in bank, and of this application to the Court.- Held, under the 79th section of the Lands Clauses Act, that the Improvement Trustees were not liable for any expenses attendant on a change of security until the applicants were prepared to invest the fund permanently in the purchase of other lands.

Citations:

[1878] SLR 15 – 471

Links:

Bailii

Jurisdiction:

Scotland

Scotland

Updated: 26 November 2022; Ref: scu.577373

Bourhill v Young’s Executor: HL 5 Aug 1942

When considering claims for damages for shock, the court only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact.’ Wright L said: ‘No doubt, it has long ago been stated and often restated that if the wrong is established the wrongdoer must take the victim as he finds him. That, however, is only true . . on the condition that the wrong has been established or admitted. The question of liability is anterior to the question of the measure of the consequences which go with the liability.’
Lord Russell of Killowen: ‘In considering whether a person owes to another a duty a breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. This consideration may play a double role. It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, ie, to the question of compensation not to culpability, but it is also relevant in testing the existence of a duty as the foundation of the alleged negligence, ie, to the question of culpability not to compensation.’

Judges:

Lord MacMillan, Lord Wright, Lord Russell of Killowen

Citations:

[1943] AC 92, [1943] SC (HL) 78, 1943 SLT 105, [1942] UKHL 5

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Disapproved – Owens v Liverpool Corporation CA 1938
Four family mourners at a funeral appealed against rejection of their claims for damages for distress caused by witnessing a collision between a negligently driven tramcar and the hearse.The incident had involved no apprehension, or sight, or sound . .

Cited by:

Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Giullietta Galli-Atkinson v Seghal CA 21-Mar-2003
The claimant’s daughter was fatally injured in car accident, dying shortly after. The mother came upon the scene, witnessed a police cordon at the scene of the accident and was told of her death. She later saw the injuries at the mortuary and . .
Cited – King v Phillips CA 1952
Denning LJ said: ‘there can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock.’ A person ‘who suffers shock on being told of an accident to a loved one cannot recover damages from the . .
Cited – Salter v UB Frozen Chilled Foods OHCS 25-Jul-2003
The pursuer was involved in an accident at work, where his co-worker died. He suffered only psychiatric injury.
Held: Being directly involved, the pursuer was a primary victim, and accordingly not subject to the limits on claiming for . .
Cited – Smith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd HL 1987
The defendant acquired a semi derelict cinema with a view to later development of the site. A fire started by others spread to the pursuer’s adjoining property.
Held: The defendants were not liable in negligence. The intervention of a third . .
Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Cited – Steel v Glasgow Iron and Steel Co Ltd 1944
The question was whether the actions of the deceased had broken the chain of causation when he intervened in an attempt to save property. ‘This rule of the ‘reasonable and probable consequence’ is a key that opens several locks; for it not only . .
Cited – Simmons v British Steel plc HL 29-Apr-2004
The claimant was injured at work as a consequence of the defender’s negligence. His injuries became more severe, and he came to suffer a disabling depression.
Held: the Inner House had been wrong to characterise the Outer House decision as . .
Cited – Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) PC 18-Jan-1961
Foreseeability Standard to Establish Negligence
Complaint was made that oil had been discharged into Sydney Harbour causing damage. The court differentiated damage by fire from other types of physical damage to property for the purposes of liability in tort, saying ‘We have come back to the plain . .
Cited – McKillen v Barclay Curle and Co Ltd 1967
The Lord Ordinary had awarded the pursuer damages for tuberculosis, on the basis that in the accident he had fractured a rib and this had reactivated his pre-existing tuberculosis.
Held: The pursuer had failed to prove the causal connexion . .
Cited – Islington London Borough Council v University College London Hospital NHS Trust CA 16-Jun-2005
The local authority sought repayment from a negligent hospital of the cost of services it had had to provide to an injured patient. They said that the hospital had failed to advise the patient to resume taking warfarin when her operation was . .
Cited – Corr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police CA 31-May-1991
The defendant policed a football match at which many people died. The plaintiffs, being relatives and friends of the deceased, inter alia suffered nervous shock having seen the events either from within the ground, or from outside or at home on . .
Rejected – McLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .
Cited – Liverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
Cited – Wooldridge v Sumner and Another CA 4-Jun-1962
The plaintiff photographer was injured when attending a show jumping competition at the White City Stadium. A horse caught him as it passed.
Held: The defendant’s appeal against the finding of negligence succeeded: ‘a competitor or player . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages, Negligence

Updated: 25 November 2022; Ref: scu.180104

The Scotch Whisky Association and Others v The Lord Advocate and Another: SCS 21 Oct 2016

The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming motion, it is normal for the court to proceed on the basis of the same documents as were provided to the Lord Ordinary, though it can look at new material if it is satisfied that it is in the interests of justice to do so.
It could reasonably be concluded, on an objective examination of the material before the Court, that the proposed system of minimum pricing was proportionate in the sense required by European Union law and now explained by the Court of Justice.

Judges:

Lord Carloway P

Citations:

[2016] ScotCS CSIH – 77, [2017] 1 CMLR 41, 2016 SLT 114, 2017 SC 465

Links:

Bailii

Statutes:

The Alcohol (Minimum Price per Unit) (Scotland) Order 2013, Alcohol (Minimum Pricing) (Scotland) Act 2012

Jurisdiction:

Scotland

Citing:

See also – Scotch Whisky Association and Others v The Lord Advocate and Another SCS 30-Apr-2014
(Extra Division, Inner House, Court of Session) Reclaiming motion is brought against the Lord Ordinary’s decision rejecting the petitioners’ challenge to the provisions of the 2012 Act. Reference to ECJ . .
See also – The Scotch Whisky Association and Others, Re Judicial Review SCS 26-Sep-2012
Outer House – application by Alcohol Focus Scotland for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine . .
See also – The Scotch Whisky Association and Others, Re Judicial Review SCS 3-May-2013
(Outer House, Court of Session) The petitioners challenged the legality of an enactment of the Scottish Parliament – the Act. They also challenged the legality of the Scottish Ministers’ decision that they would make an Order setting the minimum . .
See also – Scotch Whisky Association and Others for Judicial Review SCS 11-Jul-2014
Extra Division, Inner House – Further application for leave to intervene. . .
At ECJ – Scotch Whisky Association And Others v Lord Advocate, Advocate General for Scotland ECJ 23-Dec-2015
ECJ (Judgment) Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – Free movement of goods – Article 34 TFEU – Quantitative . .

Cited by:

Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
At IHCS – Scotch Whisky Association and Others v The Lord Advocate and Another SC 15-Nov-2017
The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, European

Updated: 25 November 2022; Ref: scu.578093

The Inter-Vivos Trust of The Late William Strathdee Gordon v Campbell Riddle Breeze Paterson Llp: SCS 25 Mar 2015

(Outer House) The trustees said they had suffered losses from the negligence of the defendant solicitors in serving incorrect notices to quit under leases. The solicitors said that the claim was time barred.
Held: After hearing evidence in a preliminary proof on prescription at which the parties had agreed that the averments of breach of contract and loss were to be treated as proven, Lord Jones upheld the plea of prescription. He rejected the trustees’ argument that the prescriptive period did not begin until the Scottish Land Court issued its decision (ie 24 July 2008), which, according to the trustees, was the date on which they first knew that they had suffered loss. He held that the prescriptive period began when the trustees knowingly became liable for legal fees and outlays in pursuit of vacant possession of the fields. As it was agreed that the trustees had incurred material expense in relation to the Scottish Land Court application by 17 February 2006, the five-year prescriptive period had run its course before they commenced the legal proceedings against the respondents (on 17 May 2012). Lord Jones therefore absolved the respondents from the trustees’ claims.

Judges:

Lord Jones

Citations:

[2015] ScotCS CSOH – 31

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

At Outer House – Gordon and Others v Campbell Riddell Breeze Paterson Llp SCS 8-Mar-2016
(Extra Division, Inner House) The claimant trustees appealed from rejection of their claims of professional negligence against the defendant solicitors as out of time. The parties disputed whether the limitation period ran from the service of . .
At Outer House – Gordon and Others (Trustees of The Inter Vivos Trust) v Campbell Riddell Breeze Paterson Llp SC 15-Nov-2017
The claimants appealed from rejection of their claims for losses saying that such losses had been caused by their solicitors in failing properly to identify the tenant and the relevant lease when issuing notices to quit. The solicitors argued that . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 25 November 2022; Ref: scu.546782

The Scotch Whisky Association and Others, Re Judicial Review: SCS 3 May 2013

(Outer House, Court of Session) The petitioners challenged the legality of an enactment of the Scottish Parliament – the Act. They also challenged the legality of the Scottish Ministers’ decision that they would make an Order setting the minimum price at 50 pence per unit of alcohol.
Held: The claim was rejected

Judges:

Lord Doherty

Citations:

[2013] ScotCS CSOH – 70, 2013 SLT 776

Links:

Bailii

Statutes:

Alcohol (Minimum Pricing) (Scotland) Act 2012

Jurisdiction:

Scotland

Citing:

See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 26-Sep-2012
Outer House – application by Alcohol Focus Scotland for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine . .

Cited by:

See Also – Scotch Whisky Association and Others v The Lord Advocate and Another SCS 30-Apr-2014
(Extra Division, Inner House, Court of Session) Reclaiming motion is brought against the Lord Ordinary’s decision rejecting the petitioners’ challenge to the provisions of the 2012 Act. Reference to ECJ . .
See Also – Scotch Whisky Association and Others for Judicial Review SCS 11-Jul-2014
Extra Division, Inner House – Further application for leave to intervene. . .
See Also – Scotch Whisky Association And Others v Lord Advocate, Advocate General for Scotland ECJ 23-Dec-2015
ECJ (Judgment) Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – Free movement of goods – Article 34 TFEU – Quantitative . .
See also – The Scotch Whisky Association and Others v The Lord Advocate and Another SCS 21-Oct-2016
The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming . .
See Also – Scotch Whisky Association and Others v The Lord Advocate and Another SC 15-Nov-2017
The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum . .
Lists of cited by and citing cases may be incomplete.

Licensing, European

Updated: 23 November 2022; Ref: scu.495201

Seton v Paterson: SCS 9 Dec 1880

A person hired a horse for an afternoon ride. He took it into a field in the course of his ride, and made it gallop round the field. While in the field it suddenly became lame from a fracture, as it afterwards appeared, of a pastern bone. The horse was kept in a stable for six weeks, unable to take exercise from the result of the injury. At the expiry of the six weeks it took inflammation of the bowels and died. It was proved that want of exercise tends to make a horse more liable to such a disease. Held that the use of the horse to gallop in the field was a breach of the contract, and that the hirer was therefore liable for the injury which there happened; that while it was not certain that the supervening inflammation resulted from the injury for which the hirer was responsible, it was at least highly probable that it did so result; and that in the circumstances the hirer was liable for the value of the horse-Lord Gifford dissenting and holding (1) that the hirer was fairly entitled to use the horse as he had done; and (2) that the inflammation not being proved to have been directly connected with the injury, the hirer should not, even assuming him liable for that injury, be found liable for the price of the horse.

Citations:

[1880] SLR 18 – 132 – 2

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 20 November 2022; Ref: scu.578890

Heron v Gray: SCS 27 Nov 1880

A proprietor acquired a house and garden in a town, and converted it into two lots-the first consisting of a shop which he erected on the plot in front, and warerooms which had formed part of the sunk storey of the house, and had had for more than forty years windows looking out upon the garden ground to the back of the house. He sold this lot, ‘together with (1) the solum of the ground on which the said shop is built; (2) a right of property, in common with the proprietors of the dwelling-house, to the solum of the piece of ground on which the said cellars or warerooms are situated,’ and co. Thereafter he sold the remaining lot of the property, consisting of the dwelling-house above the shop, to a different purchaser, ‘together with a right of property along with’ the purchaser of the shop ‘to the solum of the piece of ground on which said house is built, together with the piece of ground or green lying to the’ back of the house, ‘with right to make use of it as absolute owner, it being hereby declared that there is no restriction against building on, or any right of servitude affecting, the said piece of ground.’ Held that the title of the purchaser of the shop gave him by implication a servitude of light over the piece of ground to the south on which the windows of the wareroom looked, and that the express grant of that piece of ground, with the declaration that there was no servitude affecting the ground in the title which the common author of the parties had given to the purchaser of the house, could not interfere with the servitude implied in the earlier right of the proprietor of the shop.

Citations:

[1880] SLR 18 – 113

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 20 November 2022; Ref: scu.578855

Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd: HL 26 Nov 1981

Even though a shipowner who had carried cargo on deck was not entitled to rely on the exceptions to liability in his contract, a limitation clause was different and should not be construed by reference to the specially exacting standards applicable to exclusion and indemnity clauses. The words of exclusion must be clear and unambiguous, and should, failing this, be construed strictly against the proponent (contra preferentem) and is seeking to rely on them.
Lord Fraser said: ‘these principles [i.e., those applicable to exclusion and indemnity clauses] are not applicable in their full rigour when considering the effect of clauses merely limiting liability. Such clauses will of course be read contra proferentem and must be clearly expressed , but there is no reason why they should be judged by the specially exacting standards which are applied to exclusion and indemnity clauses. The reason for imposing such standards on these clauses is the inherent improbability that the other party to a contract including such a clause intended to release the proferens from a liability that would otherwise fall upon him. But there is no such high degree of improbability that he would agree to a limitation of the liability of the proferens, especially when . . the potential losses that might be caused by the negligence of the proferens or its servants are so great in proportion to the sums that can reasonably be charged for the services contracted for . .’
Lord Wilberforce said that limitation clauses are not viewed with the same hostility as are exclusion clauses.

Judges:

Lord Fraser, Lord Wilberforce

Citations:

[1983] 1 WLR 964, [1981] UKHL 12, [1983] 1 All ER 101, 1982 SLT 377

Links:

Bailii

Statutes:

Hague Rules

Jurisdiction:

England and Wales

Citing:

Cited – Canada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .

Cited by:

Cited – Daewoo Heavy Industries Ltd and Another v Klipriver Shipping Ltd and Another CA 3-Apr-2003
The carrier had loaded the cargo on the ship’s deck, despite a clause requiring it to be stowed in a hold. The charterparty sought to use the breach to remove the carrier’s limit of liability. The older form of Hague rules applied.
Held: It . .
Applied – Bovis Construction (Scotland) Ltd v Whatlings Construction Ltd HL 19-Oct-1995
The managing contractors sought damages from a sub-contractor. The contract was on a printed form and in letters. A letter limited time related damages to pounds 100,000. The main contractors sought a much larger sum.
Held: A clause seeking to . .
Cited – Amiri Flight Authority v BAE Systems Plc CA 17-Oct-2003
The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued . .
Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd CA 29-Sep-1982
The buyer bought 30lbs of cabbage seed, but the seed was not correct, and the crop was worthless. The seed cost pounds 192, but the farmer lost pounds 61,000. The seed supplier appealed the award of the larger amount and interest, saying that their . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport, Scotland

Updated: 18 November 2022; Ref: scu.181088

Van Overwaele, Re Interdict: SCS 10 Dec 2009

Petition for interdict in which the petitioner for the most part has been a party litigant. The petition arises out of the sequestration of the petitioner in January 2000 and she seeks to interdict the respondent, the permanent trustee, from seizing or disposing of property forming part of the estate.

Citations:

[2009] ScotCS CSOH – 164

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Russell v Van Overwaele SCSF 2-Mar-2005
‘The Sheriff Principal having resumed consideration of the cause Refuses the appeal and Adheres to the interlocutor of the sheriff dated 4 September 2003; Certifies the appeal as suitable for the employment of junior counsel; Finds the defender and . .
See Also – Van Overwaele v Hacking and Paterson and Another ScS 22-Apr-2004
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 18 November 2022; Ref: scu.384169

Procurator Fiscal, Fort William v Mclean and Another: HCJ 11 Aug 2000

A rule which restricted the amount payable to a defendant to cover his legal fees in defending a case brought against him to pounds 550.00 was not an infringement of his human rights. To demonstrate a breach of the right to a fair trial, the defendant must show not only prejudice, but also some material disadvantage involving an actual and material risk of harm to his defence.

Citations:

Times 11-Aug-2000

Statutes:

Criminal Legal Aid (Fixed payments)(Scotland) Regulations 1999 (SI 1999 No 491)

Jurisdiction:

Scotland

Legal Aid, Human Rights

Updated: 05 November 2022; Ref: scu.85053

David Willson and Scottish Public Services Ombudsman: SIC 26 Nov 2013

On 6 August 2013, Mr Willson asked the Scottish Public Services Ombudsman (the SPSO) to provide the information it had used to reach certain conclusions in relation to a complaint it had investigated, and for correspondence with the Minister for Transport. The SPSO withheld all information under section 26(a) of FOISA, and upheld this decision after review. Mr Willson requested and received information which was his own personal data under the Data Protection Act 1998 (the DPA), but believed that some information had not been provided. He applied to the Commissioner for a decision on how his request had been dealt with under FOISA.
The Commissioner found that the information held by the SPSO in relation to Mr Willson’s request was exempt from disclosure under section 26(a) of FOISA.

Citations:

[2013] ScotIC 269 – 2013

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 04 November 2022; Ref: scu.522797

H A Cook and Social Care and Social Work Improvement Scotland: SIC 26 Nov 2013

On 4 December 2012, Mr Cook asked Social Care and Social Work Improvement Scotland (SCSWIS) for the dates when two named Care Commission Officers were awarded their Regulation of Care Awards. SCSWIS refused the request under section 14(2) of FOISA, on the basis that it was repeated. Following an investigation, the Commissioner accepted this.

Citations:

[2013] ScotIC 268 – 2013

Links:

Bailii

Jurisdiction:

Scotland

Information

Updated: 04 November 2022; Ref: scu.522801