Tag: Scotland

Bank of Scotland v Dunedin Property Investment Co Ltd: OHCS 16 May 1997

The cost of an interest rate swap brokerage agreement was not covered by an indemnity against ‘all costs charges and expenses incurred’.

Citations:

Times 16-May-1997, 1998 SC 657

Citing:

Appealed to – Bank of Scotland v Dunedin Property Investment Co Ltd IHCS 24-Sep-1998
Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs. . .

Cited by:

Appeal from – Bank of Scotland v Dunedin Property Investment Co Ltd IHCS 24-Sep-1998
Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs. . .
See Also – The Governor and Company of the Bank of Scotland v Dunedin Property Investment Company Ltd OHCS 8-Jun-1999
. .
Lists of cited by and citing cases may be incomplete.

Financial Services, Contract, Scotland

Updated: 18 May 2022; Ref: scu.78161

Bank of Scotland v Dunedin Property Investment Co Ltd: IHCS 24 Sep 1998

Issue of loan stock supported by charge for ‘all costs charges and expenses incurred’ this included the breakage cost of the bank in setting up interest-rate swap arrangements to protect itself against swings in costs.

Judges:

Lord President (Rodger

Citations:

Times 24-Sep-1998, 1998 SC 658

Citing:

Appeal from – Bank of Scotland v Dunedin Property Investment Co Ltd OHCS 16-May-1997
The cost of an interest rate swap brokerage agreement was not covered by an indemnity against ‘all costs charges and expenses incurred’. . .

Cited by:

Appealed to – Bank of Scotland v Dunedin Property Investment Co Ltd OHCS 16-May-1997
The cost of an interest rate swap brokerage agreement was not covered by an indemnity against ‘all costs charges and expenses incurred’. . .
Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
See Also – The Governor and Company of the Bank of Scotland v Dunedin Property Investment Company Ltd OHCS 8-Jun-1999
. .
Cited – Profile Software Ltd v Becogent Ltd OHCS 16-Feb-2005
The pursuers claimed for breach of copyright and of a software licence. The defendants disputed the title or right of the pursuers to claim.
Held: The assignation of the rights in the software carried with it the rights to enforce intellectual . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract, Scotland

Updated: 18 May 2022; Ref: scu.78162

In Re AR (An Order Under The Child Abduction And Custody Act 1985): SCS 17 Jun 2014

The two girls were with their mother in Scotland. The father, living in France, sought their return to France:
Held: The court granted the father’s application. The Lord Ordinary: ‘After considering all the relevant evidence I am satisfied that the children had not immediately before 20 November 2013 lost their habitual residence in France. They had both been born there and lived there in family with their parents until 26 July. This was a French family living in France. There is nothing which happened thereafter which persuades me that they had ceased to be habitually resident in France. I conclude from the evidence and productions presented that the stay of the respondent and the two children in Scotland was to be of limited duration, consisting of the period of her maternity leave. I do not regard the sale of the family home in Narbonne as evidencing a joint intention to leave France for good. I am not persuaded that there was a joint decision to uproot themselves from France and relocate permanently to Scotland. The petitioner has his own expanding business in Narbonne, for which he relies on his livelihood (sic) and in order to maintain the respondent and children. He speaks little or no English. I reject as fanciful any suggestion that he intended to set up a business in Scotland. That would have involved abandoning his established business in France and attempting to set up a business in a country where he did not speak the language and had no obvious prospect of succeeding. He continued to live and work in France after the respondent and children came to live in Scotland, although he visited them regularly. The respondent and children returned to France on two occasions after their move to Scotland. Certain of the children’s belongings were in storage in France. The lease of the property in which the respondent and children were living in Scotland was in her name alone. Nothing in the communications between the parties indicates a joint intention to uproot themselves from France and relocate permanently to Scotland.’

Citations:

Unreported, 17 June 2014

Statutes:

Child Abduction And Custody Act 1985

Cited by:

Appeal from – AR, Re An Order Under The Child Abduction and Custody Act 1985 SCS 14-Nov-2014
(Extra Division, Inner House – Opinion of Lord Malcolm) – appeal in application for order of return of two children to their father in France. The partis disputed whether Scotland had become habitually resident in Scotland, and also whether the . .
At Outer House – AR v RN (Scotland) SC 22-May-2015
The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of . .
Lists of cited by and citing cases may be incomplete.

Children, Scotland

Updated: 18 May 2022; Ref: scu.566222

Jamieson v Northern Electricity Supply Corp (Private) Ltd: 1970

It was argued that there had been an implied submission to the Zambian courts by an employee because the contract of employment was entered into in, and to be performed in Zambia, and assumed to be governed by Zambian law, and that a Azambian judgement on the matter should be enforced.
Held: Lord Johnston (at 116) took the view that a submission was not lightly to be implied, and could not be implied from a conjunction of those factors. Registration of the Zambian judgment was set aside because the 1933 Act did not apply to Zambia.

Judges:

Lord Johnston

Citations:

1970 SLT 113

Cited by:

Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Scotland, Jurisdiction

Updated: 18 May 2022; Ref: scu.565131

Creditors of Wamphray v Lady Wamphray: 1675

An advocate was not bound to disclose ‘any private advice or secret of his calling or employment’

Citations:

(1675) Mor 347

Cited by:

Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.

Scotland, Legal Professions

Updated: 18 May 2022; Ref: scu.470881

The Sea Insurance Company Of Scotland v Gavin, And Others: SCS 1829

Under a policy insuring a brigantine ” at and from L. to S., and thence to ‘Barcelona, and at and from thence and two other ports in Spain, to a ‘port in Great Britain : ‘–held, that Saloe, a place lying in a bay, having warehouses and a jetty, with a depth of water sufficient for feluccas, but not for large ships, and a good roadsted anchorage where ships lie and are loaded by means of small craft ; having also a custom-house and officers is a ”port’ within the meaning of the policy.

Citations:

[1829] EngR 244, (1829) 4 Bligh NS PC 578, (1829) 5 ER 206

Links:

Commonlii

Scotland, Transport, Insurance

Updated: 18 May 2022; Ref: scu.322112

HM Advocate v Kidd: 1960

The court set out the conditions for finding insanity in criminal law.

Citations:

1960 SLT 82

Cited by:

Cited – Cardle v Mulrainey HCJ 1992
The defendant drank lager into which a third party had put amphetamine. He then tried to start vehicles belonging to others with the intention of taking them away. He also took some property from one of the vehicles. The sheriff acquitted him. The . .
Lists of cited by and citing cases may be incomplete.

Scotland, Crime

Updated: 18 May 2022; Ref: scu.272897

Allied London and Scottish Properties Plc v Riverbrae Construction Ltd: OHCS 12 Nov 1999

An adjudicator who acts under the Scheme upon the written submission of the parties and without any oral hearing was not able to consider making an order for payment of the award by installments where neither party had raised that issue in their written submissions. He was not required by the scheme to consider such a procedure.

Citations:

Times 12-Nov-1999

Statutes:

Housing Grants Construction and Regeneration Act 1996 108

Construction, Scotland

Updated: 17 May 2022; Ref: scu.77760

Allied Domecq Spirits and Wine Ltd v Murray Mcdavid Ltd: SCS 9 Dec 1997

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.

Citations:

Times 09-Dec-1997

Statutes:

Trade Marks Act 1994 11(2)(b)

Jurisdiction:

Scotland

Intellectual Property, Scotland

Updated: 17 May 2022; Ref: scu.77754

Lord Advocate v Lord Blantyre: HL 1879

The defender claimed ownership of land based on possession from time immemorial of foreshore and banks in the River Clyde of some 5 miles and 2 miles respectively in length and spread over some 750 acres.
Held: Lord Blackburn said: ‘Every act shewn to have been done on any part of that tract by the barons or their agents which was not lawful unless the barons were owners of that spot on which it was done is evidence that they were in possession as owners of that spot on which it was done. No one such act is conclusive, and the weight of each act as evidence depends on the circumstances; one very important circumstance as to the weight being, whether the act was such and so done that those who were interested in disputing the ownership would be aware of it. And all that tends to prove possession as owners of parts of the tract tends to prove ownership of the whole tract; provided there is such a common character of locality as would raise a reasonable inference that if the barons possessed one part as owners they possessed the whole, the weight depending on the nature of the tract, what kind of possession could be had of it, and what the kind of possession proved was. This is what is very clearly explained by Lord Wensleydale (then Baron Parke) in Jones v Williams. And as the weight of evidence depends on rules of common sense, I apprehend that this is as much the law in a Scotch as in an English Court. And the weight of the aggregate of many such pieces of evidence taken together is very much greater than the sum of the weight of each such piece of evidence taken separately.’

Judges:

Lord Blackburn

Citations:

(1879) 4 App Cas 770

Jurisdiction:

Scotland

Citing:

Cited – Jones v Williams ExcC 1837
A four-judge of the Court was asked as to the admissibility of evidence in a case as to trespass upon the bed of a river where title was uncertain and where the dispute was whether the claimant or defendant owned the very part of land upon which the . .

Cited by:

Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Cited – Lord Advocate v Lord Lovat 1880
Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in . .
Cited – Higgs v Nassauvian Ltd PC 1975
A claim was made for possession of two plots of land, one some 92 and the other some 12 acres. The land was part arable, part pine barren and not fenced or otherwise enclosed.
Held: Sir Harry Gibbs said: ‘It is clearly settled that acts of . .
Cited – Barton v The Church Commissioners for England ChD 15-Dec-2008
The commissioners claimed a right by prescription to all fish to be taken in a stretch of the River Wye. The claimant was to moor a barge on the river.
Held: The court explained the nature and legal status of fisheries in the law going back to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.267380

Kelly v Monklands District Council: 1986

A local authority’s housing duties may be owed to a child if that child is living independently of its parents.

Citations:

1986 SLT 169

Cited by:

Cited – Royal Borough of Kingston Upon Thames v Prince and Another CA 2-Dec-1998
The Borough’s tenant had died. His wife and daughter had lived with him, but the mother not for long enough to succeed to his tenancy. The daughter (aged thirteen) claimed to have done so having lived with him for three years.
Held: The 1985 . .
Lists of cited by and citing cases may be incomplete.

Scotland, Housing, Children, Local Government

Updated: 17 May 2022; Ref: scu.259630

Brown v North British Steel Foundry Ltd: OHCS 1968

The 1954 Act passed on 4 June 1954 but was not to affect any action or proceeding if the cause of action arose before that date. The Lord Ordinary found that the pursuer who sought damages for pneumoconiosis did not begin to suffer from until 1955. But the pursuer contended that the injury had been done to his lungs by 1949 because he had been inhaling dangerous dust for some years before that and, as subsequent events showed, he was susceptible to pneumoconiosis in 1949. So the cause of action had arisen at that date. The First Division of the Court of Session rejected that argument.
Held: Lord President Clyde said that there was no cause of action in 1949 and added: ‘To create a cause of action, injuria and damnum are essential ingredients. In the present case there is no evidence of any injuries to the workman’s lungs in 1949. He had then merely a deposit of dust in his lungs, which might or might not subsequently create an injury. But, in addition, he had then sustained no damnum. He could not then have been awarded damages for any loss, because at that stage he had sustained no loss of wages and had suffered none of the discomforts and disabilities which, he avers, followed upon the onset of pneumoconiosis and which in fact flowed from the outbreak of that disease in 1955.’

Judges:

Lord President Clyde

Citations:

1968 SC 51

Statutes:

Law Reform (Limitation of Actions etc) Act 1954

Cited by:

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 – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Lists of cited by and citing cases may be incomplete.

Scotland, Personal Injury, Limitation

Updated: 17 May 2022; Ref: scu.260124

Hill v Maclaren: 1879

A servitude right must be exercised ‘so as to impose the least possible burden on the servient tenement, consistently with the fair enjoyment of this right by the dominant proprietor.’

Judges:

Lord Justice Clerk Moncreiff

Citations:

(1879) 6 R 1363

Cited by:

Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.

Land, Scotland

Updated: 17 May 2022; Ref: scu.260034

Highland Engineering Ltd v Thomson: 1972

The liquidation of a company is treated as the equivalent as bankruptcy to prevent the hardship of a debtor who is also a creditor being forced to pay in full, when he will come in only as a creditor for a dividend for his debt as a result of ranking pari passu with the ordinary creditors.

Citations:

1972 SC 87

Jurisdiction:

England and Wales

Cited by:

Cited – Melville Dundas Ltd and others v George Wimpey UK Ltd and others HL 25-Apr-2007
The appellant sought an interim payment for works of construction undertaken for the respondents under a JCT contract. The respondents contended that, having terminated the contract on their receivership, the contract and Act meant that the interim . .
Lists of cited by and citing cases may be incomplete.

Scotland, Company, Insolvency

Updated: 17 May 2022; Ref: scu.251596

Mitchell v North British Rubber Co Ltd: 1945

The court considered the meaning of the term ‘dangerous’ in the Act. Lord Justice Clerk Cooper: ‘The question is not whether the occupiers of the factory knew that it was dangerous; nor whether a factory inspector had so reported; nor whether previous accidents had occurred; nor whether the victims of these accidents had, or had not, been contributorily negligent. The test is objective and impersonal. Is the part such in its character, and so circumstanced in its position, exposure, method of operation and the like, that in the ordinary course of human affairs danger may reasonably be anticipated from its use unfenced, not only to the prudent, alert and skilled operative intent on his task, but also to the careless or inattentive worker whose inadvertent or indolent conduct may expose him to risk of injury or death from the unguarded part?’

Judges:

Lord Justice Clerk Cooper

Citations:

1945 JC 69

Statutes:

Factories Act 1937 14(1)

Cited by:

Cited – Robb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
Lists of cited by and citing cases may be incomplete.

Health and Safety, Scotland

Updated: 17 May 2022; Ref: scu.247756

Watson-Towers Ltd v McPhail: 1986

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.

Judges:

Lord Wylie

Citations:

1986 SLT 617

Cited by:

Followed – Daks Simpson Group plc v Kuiper 1994
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 . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Scotland, Contract, Limitation

Updated: 17 May 2022; Ref: scu.243123

Grampian Regional Council v City of Aberdeen District Council: 1984

The extinguishment of a private right is not a proper matter for a condition attached to a planning permission, even though a negative condition preventing development until a highway has been stopped up is unobjectionable.

Citations:

(1984) 47 PandCR 633, [1984] JPL 371

Cited by:

Cited – British Railways Board v Secretary of State for the Environment and Another HL 29-Oct-1993
Permission had been given for residential development of land provided that access was provided. The access specified was to be over land owned by the council. It was known that the Council would not allow such access. The land owner sought an order . .
Cited – London Borough of Bexley v Maison Maurice Ltd ChD 15-Dec-2006
The council had taken land by compulsory purchase in order to construct a dual carriageway. It then claimed that it had left undedicated a strip .5 metre wide as a ransom strip to prevent the defendant restoring access to the road.
Held: The . .
Cited – Nirah Holdings Ltd v British Agricultural Services Ltd and Another ComC 11-Sep-2009
The parties entered into an option agreement giving the claimant a right to purchase the defendant’s land. The consideration would be affected by the costs of complying with a section 106 agreement to construct local ancillary services. The parties . .
Lists of cited by and citing cases may be incomplete.

Planning, Scotland

Updated: 17 May 2022; Ref: scu.225279

Orr v Mitchell: 1893

Until the interest of the purchaser has been recorded or registered the seller remains vested in the real right. His relationship with the purchaser is controlled by the rights and obligations which were created by their contract. When the disposition is delivered the general rule is that it becomes the sole measure of the contracting parties’ rights if there is a dispute about the subject to which right has been acquired by the purchaser.

Citations:

(1893) 20 R (HL) 27

Jurisdiction:

England and Wales

Cited by:

Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 16 May 2022; Ref: scu.194223

McLaren v Caldwell’s Paper Mill Company Ltd: 1973

(Lord Stott, dissenting) A Lord Ordinary’s view on the credibility or reliability of a witness is not sacrosanct.

Judges:

Lord Stott

Citations:

1973 SLT 153

Cited by:

Cited – Thomson v Kvaerner Govan Limited HL 31-Jul-2003
The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 16 May 2022; Ref: scu.186350

Arcari v Dunbartonshire County Council: 1948

Judges:

Lord President Cooper

Citations:

1948 SC 62

Jurisdiction:

England and Wales

Citing:

Adopted – Harper v Inspector of Rutherglen 1903
Lord Trayner said: ‘Every judgment of an inferior Court is subject to review, unless such review is excluded expressly or by necessary implication’. . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 16 May 2022; Ref: scu.184724

Harper v Inspector of Rutherglen: 1903

Lord Trayner said: ‘Every judgment of an inferior Court is subject to review, unless such review is excluded expressly or by necessary implication’.

Judges:

Lord Trayner

Citations:

(1903) 6 F 23

Cited by:

Adopted – Arcari v Dunbartonshire County Council 1948
. .
Cited – Glasgow City Council v DH and Another IHCS 17-Jul-2003
Exclusion orders had been sought under the Act, but refused for non-compliance with procedures under the Act. New applications were made to different courts, and the applicant said it was not open to the Authorities to make the same application . .
Lists of cited by and citing cases may be incomplete.

Scotland, Litigation Practice

Updated: 16 May 2022; Ref: scu.184723

UCB Bank Plc v Dundas and Wilson: SCS 1990

It would not be competent for the Court of Session to restrict the pursuers’ entitlement to a fraction or percentage of the sums brought out as being payable in terms of the accounts, after they had been taxed by the Auditor.

Citations:

1990 1 SLT 90

Cited by:

Cited – Free and others v British Steel Plc and Another SCS 18-Jul-2003
(Outer House) The pursuer had sought damages from the defender, but failed to submit the claim for expenses. The defenders said they were prejudiced by the delay.
Held: ‘Comparing the prejudice the pursuers would suffer, were the motion to be . .
Lists of cited by and citing cases may be incomplete.

Scotland, Costs

Updated: 16 May 2022; Ref: scu.184713

McFadyen v Annan: 1992

The accused, a police officer, was subject of a complaint by the person arrested of assault. The defendant complained that the delay in bringing charges (7 months) was excessive so as to be unfair.
Held: The question should be whether the delay would so prejudice the prospects of a fair trial to the extent that any such trial would be oppressive. A former, two stage, test was no longer to be followed. Delay before as well as after proceedings were begun could be looked at. In this case there was no such risk of prejudice from any delay.

Citations:

[1992] JC 53, [1992] CLY 5466, 1992 SLT 163

Citing:

Applied – Stuurman v HM Advocate 1980
The court was asked whether a fair trial could take place at all in the light of the pre-trial publicity.
Held: The court noted that the palliative of judicial directions can never be absolutely effective, but the judge had done what he could. . .
Overruled – Tudhope v McCarthy 1985
. .
Overruled – McGeown v HM Advocate 1989
. .
Overruled – Connachan v Douglas 1990
. .
Overruled – HM Advocate v Mechan 1991
. .

Cited by:

Cited – Dyer v Watson and Burrows PC 29-Jan-2002
Parties challenged the compliance of proceedings with the convention where there had been considerable delay.
Held: The reasonable detention provision (article 5(3)) and the reasonable time requirement (article 6(1)) conferred free-standing . .
Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice

Updated: 16 May 2022; Ref: scu.182771

Smith (Inspector of Taxes) v Woodhouse and Others; Fitzpatrick and Others v Commissioners of Inland Revenue: HL 18 Feb 1994

An allowance paid to a journalist by his employer to pay for newspapers he was to buy and read as part of his work was taxable under Sch E. It was not actually part of his job to read them.

Citations:

Times 18-Feb-1994, Independent 18-Feb-1994

Statutes:

Income and Corporation Taxes Act 1970 189(1)

Jurisdiction:

Scotland

Income Tax

Updated: 15 May 2022; Ref: scu.89315

Conti v Ueberseebank Ag: IHCS 15 Mar 2000

A former director of a company could apply to have it restored to the register of companies even though he had played a significant part in the decisions to wind the company up in the first place. The time for testing whether he had an appropriate grievance which might found an application was at the time of the application being made and not at any earlier time.

Citations:

Times 15-Mar-2000

Statutes:

Companies Act 1985 653

Citing:

Appeal from – Fabrizio Conti v Ueberseebank A G OHCS 2-Oct-1998
(Scotland) A company director and shareholder who had agreed with board’s decision to apply for company to be wound up could not later apply to set aside that application on the grounds that he was a person ‘aggrieved’ by that decision. . .

Cited by:

Appealed to – Fabrizio Conti v Ueberseebank A G OHCS 2-Oct-1998
(Scotland) A company director and shareholder who had agreed with board’s decision to apply for company to be wound up could not later apply to set aside that application on the grounds that he was a person ‘aggrieved’ by that decision. . .
Lists of cited by and citing cases may be incomplete.

Company, Scotland

Updated: 15 May 2022; Ref: scu.79468

Ellice’s Trustees v The Commissioners of The Caledonian Canal: SCS 28 Jan 1904

The commissioners of the canal did not have the power to grant a right of way which was not compatible with the exercise of their statutory duties, and that this also meant that no private right of way or servitude could arise by virtue of user of the land over many years by those claiming such a right of way

Citations:

[1904] SLR 41 – 260, (1904) 6 F 325

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 15 May 2022; Ref: scu.609891

The Lord Provost, Magistrates, and Council of The City of Edinburgh v North British Railway Co: SCS 12 May 1904

It was not possible that a public right of way ‘which it would be ultra vires to grant can be lawfully acquired by user’

Citations:

[1904] SLR 41 – 492

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 15 May 2022; Ref: scu.609965

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 limit liability must be clear in what it restricts, and is to be read strictly. The sub-contractors had wholly failed to show that the clause could cover their repudiatory breach leading to a termination of the contract. Time was not relevant for this clause after the breach. Appeal dismissed.

Citations:

Gazette 24-Jan-1996, Times 19-Oct-1995, [1995] CLY 5569, 1995 SLT 1339

Jurisdiction:

England and Wales

Citing:

Applied – 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 . .
Appeal from – Bovis Construction (Scotland) Ltd v Whatlings Construction Ltd OHCS 1994
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 . .
Lists of cited by and citing cases may be incomplete.

Contract, Construction, Scotland

Updated: 15 May 2022; Ref: scu.78513

McLaren v City of Glasgow Union Railway Co: 1878

The court considered the implication by necessity of an implied right of access for land on severance which would otherwise be landlocked.

Judges:

Lord Justice Clerk Moncreiff

Citations:

(1878) 5 R 1042

Cited by:

Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.

Land, Scotland

Updated: 14 May 2022; Ref: scu.260025

Robert Addie and Sons (Collieries) Ltd v Dumbreck: SCS 1928

A boy trespassed on land and was injured on machinery there. The local working-classes resorted to the field regularly ‘(1) as an open space; (2) as a playground; (3) as a means of access to chapel and railway station; and (4) – as regards the less well disposed members of the local community – as a means of approach to the defenders’ coal bing and wood depot for purposes of depredation. ‘ The defendant had taken steps to prevent the latter, but not otherwise.
Held: Lord President Clyde said that if the presence of a trespasser near a dangerous machine is known to the proprietor he cannot disregard it: ‘I am unable to distinguish that case from the case in which the proprietor knows of the habitual resort of adults or children, or both, to the near neighbourhood of the dangerous machine – a habit of resort which makes it to his knowledge likely that one or more of such persons may be at the machine when he applies the motive power.’

Judges:

Lord President Clyde

Citations:

1928 SC 547

Citing:

Cited – Lowery v Walker HL 9-Nov-1910
A trespasser was injured by the land owner’s savage horse.
Held: If a land-owner knows of but does nothing to stop acts of trespass by the public on his land, there may be an implied license. Decision reversed. In Scottish courts the . .

Cited by:

Appeal from – Addie (Robert) and Sons (Collieries) Ltd v Dumbreck HL 25-Feb-1929
No occupier is under any duty to potential trespassers, whether adults or children, to do anything to protect them from danger on his land, however likely it may be that they will come and run into danger and however lethal the danger may be. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Scotland, Land

Updated: 13 May 2022; Ref: scu.211428

Wilson v Nithsdale District Council: 1992

An eighteen year old girl had been sexually assaulted, was unable to return home, had been expelled from a hostel for suspected theft and was said to be at risk of further sexual assault if not provided with suitable accommodation. She sought housing as a vulnerable person.
Held: The court pointed out the dangers of a comparative approach in extablishing vulnerability: ‘The ‘comparative’ approach to vulnerability adopted in these cases cannot in my view be pushed to its logical limit; the intention cannot be that every homeless person will be held vulnerable for special reason merely because one other such homeless person might by comparison seem less vulnerable. The comparison must in my view be with some assumed average or normal run-of-the-mill homeless person. But if there is a lesser ability to fend for oneself, against that comparison, in a housing context, so that injury or detriment would result when such an ordinary homeless person would be able to cope without harmful effects, then in my opinion vulnerability for special reason is established for the purpose of the Act, and nothing more special (far less anything odd or exceptional) is required.’

Judges:

Lord Prosser

Citations:

[1992] SLT 1131

Cited by:

Approved – Regina v Kensington and Chelsea Royal London Borough Ex Parte Kihara; Similar CA 25-Jun-1996
Four asylum seekers had been deprived of benefits, and left destitute. They had sought housing assistance from the authority, claiming that the complete absence of resources left to them was an ‘other special reason’ leaving them vulnerable within . .
Cited – Regina v London Borough of Camden ex parte Pereira CA 20-May-1998
When considering whether a person was vulnerable so as to be treated more favourably in applying for rehousing: ‘The Council should consider such application afresh applying the statutory criterion: The Ortiz test should not be used; the dictum of . .
Lists of cited by and citing cases may be incomplete.

Housing, Scotland

Updated: 13 May 2022; Ref: scu.200294

Napier’s Trustees v Morrison: 1851

Dealing with a public right of way, and holding that the defenders had possessed a road ‘by no trespass or tolerance, but as a public road’the court deprecated the citation in the Court of Session of authorities from England. He really wished, he said – taking a swipe at a future Lord President among others – that Scottish counsel and judges: ‘could imitate the example set us by the counsel and the judges of that kingdom, who decide their causes by their own rules and customs, without exposing themselves by referring to foreign systems, the very language of which they do not comprehend.’

Judges:

Lord Cockburn

Citations:

(1851) 13 D 1404

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 12 May 2022; Ref: scu.187792

Stuurman v HM Advocate: 1980

The court was asked whether a fair trial could take place at all in the light of the pre-trial publicity.
Held: The court noted that the palliative of judicial directions can never be absolutely effective, but the judge had done what he could. Lord Justice General (Emslie) said: ‘the question for us is whether on 25 January 1980 the risk of prejudice as the result of these publications was then so grave that even the careful directions of the trial judge could not reasonably be expected to remove it. In our opinion that question falls to be answered in the negative. The publications occurred almost four months before the trial diet was called. In considering the effect of these publications at the date of trial the court was well entitled to bear in mind that the public memory of newspaper articles and news broadcasts and of their detailed contents is notoriously short and, that being so, that the residual risk of prejudice to the prospects of fair trial for the applicants could reasonably be expected to be removed by careful directions such as those which were in the event given by the trial Judge.’

Judges:

Lord Justice General (Emslie)

Citations:

[1980] CLY 3011, 1980 JC 111

Cited by:

Applied – McFadyen v Annan 1992
The accused, a police officer, was subject of a complaint by the person arrested of assault. The defendant complained that the delay in bringing charges (7 months) was excessive so as to be unfair.
Held: The question should be whether the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Criminal Practice

Updated: 12 May 2022; Ref: scu.187400

Magistrates of Portobello v Magistrates of Edinburgh: 1882

‘where a well-known and recognised jurisdiction is invoked by the Legislature for the purpose of carrying out a series of provisions which are important for the public without any specific form of process being prescribed, the presumption is that the ordinary forms of that Court are to be observed in carrying out the provisions, and, indeed, generally that the court has been adopted and chosen and selected because it is seen to be advisable that the ordinary rules of such Court and the forms of its procedure shall be applied to give effect to the provisions of the legislative Act’.

Judges:

Lord Justice Clerk Moncrieff

Citations:

(1882) 10 R 130

Jurisdiction:

Scotland

Cited by:

Cited – Glasgow City Council v DH and Another IHCS 17-Jul-2003
Exclusion orders had been sought under the Act, but refused for non-compliance with procedures under the Act. New applications were made to different courts, and the applicant said it was not open to the Authorities to make the same application . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 12 May 2022; Ref: scu.184722

Wilson v Independent Broadcasting Authority: OHCS 1979

In the lead up to the Scottish referendum on Devolution, the Authority required the broadcasters to carry party political broadcasts for each of the four main parties. Three parties favoured voting yes in the referendum, and the authority was injuncted by those opposing the Yes campaign.
Held: The injunction was set aside. The Act required the Authority to maintain a balance of approximately for each case. The court considered how the broadcasting media should achieve balance during elections.
Lord Ross said: ‘I see no reason in principle why an individual should not sue in order to prevent a breach by a public body of a duty owed by that public body to the public. It may well be that the Lord Advocate could be a petitioner if the interests of the public as a whole were affected…, but I see no reason why an individual should not sue provided always that the individual can qualify an interest.
Having considered the petitioners’ averments, I am of the opinion that the petitioners have averred sufficient interest.
(1) They are voters and the Referendum gives them the choice to say ‘Yes’ or ‘No’.
(2) They belong to an organisation or group who apparently believe that the question should be answered ‘No’.
(3) It is implicit in the name of the organisation or group that the petitioners wish to persuade other voters to vote ‘No’.
It is plain from the petition and the answers that the petitioners and the political parties believe that the programmes are likely to be influential upon the electorate in Scotland, and if that is so, the petitioners have an interest to see that the respondents do not act in breach of any statutory duties in relation to such programmes.’

Judges:

Lord Ross

Citations:

[1979] SC 351 OH, [1979] SLT 279

Statutes:

Broadcasting Act 1990

Cited by:

Cited – Regina v British Broadcasting Corporation, ex parte Referendum Party; Regina v Independent Television Commission, ex parte Referendum Party Admn 24-Apr-1997
The Referendum Party challenged the allocation to it of less time for election broadcasts. Under the existing agreements, having fielded over 50 candidates, they were allocated only five minutes.
Held: Neither the inclusion of past electoral . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.

Elections, Media, Scotland

Updated: 12 May 2022; Ref: scu.181971

Currie v Wardrop: 1927

The pursuer was walking arm in arm with her fiance when he was hit by a vehicle driven by the defender.
Held: She recovered damages for nervous shock involving apprehension for her own safety and the safety of her fiance, though he was hit and she was not. Miss Currie was not only at the scene, but suffered nervous shock through anxiety for her own safety. It would have been a hopeless task to attempt to work out what proportion of her nervous shock flowed from anxiety for herself, and what for her fiance.

Judges:

Lord Justice Clerk (Lord Alness) and Lord Ormidale

Citations:

1927 SC 538

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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Scotland, Damages

Updated: 11 May 2022; Ref: scu.464384

Mullen v Barr and Co Ld, and M’Gowan v Barr and Co Ld: 1929

A mouse was found in a bottle. The buyer claimed damages for the shock: ‘In a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to members of the public for the condition of the contents of every bottle which issues from their works. It is obvious that, if such responsibility attached to the defenders, they might be called on to meet claims of damages which they could not possibly investigate or answer.’

Citations:

1929 SC 461

Cited by:

Overruled – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Lists of cited by and citing cases may be incomplete.

Scotland, Negligence

Updated: 09 May 2022; Ref: scu.192602

Hay and Kyd v Caledonian Railway Co: SCS 8 Dec 1887

A firm of auctioneers sold some cattle to a customer, to whom in the usual course of their dealings they gave a week’s credit, and booked them to be conveyed by a railway company to the buyer. The account-sale bore that the sale was for cash, and the buyer was at the time in debt to the sellers for previous transactions. This debt was considerably reduced the day after the sale, but the sellers determined not to deliver the cattle in question without payment. They accordingly, upon the same day, cancelled the invoice, and re-booked the cattle to the same destination, but sent one of their servants to take possession of them. A telegram was at the same time sent by the officials of the railway company to the place of destination with instructions that delivery was on no account to be made to the buyer’s servant. The railway company disregarded these instructions, and delivered the cattle to the buyer’s servant. The auctioneers’ servant met the buyer the same day that he had got the cattle, and it was arranged that the latter should meet the former later in the day, and make payment to him. The auctioneers’ servant did not assent to the buyer selling the cattle, nor had he authority to give such consent. The buyer sold the cattle, and failed to pay anything to the auctioneers. The latter then raised an action of damages against the railway company for breach of contract and wrongous delivery. Held (1) that the sellers were entitled as undivested owners to retain the cattle in order to secure the balance due to them by the buyer on previous transactions; (2) that the railway company had been guilty of a breach of contract in disregarding the sellers’ instructions as to the delivery of the cattle; (3) that this breach of contract had not been condoned by the actings of the sellers’ agent; and therefore (4) that the railway company were liable for the price of the cattle.

Citations:

[1887] SLR 25 – 132

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 09 May 2022; Ref: scu.614673

Lord Advocate v R W Forsyth Ltd: 1986

The taxpayer appealed his corporation tax assessments and had applied to a special commissioner for postponement of payment. The applications was to be heard in Glasgow, but for convenience it was heard in London, where it failed. The taxpayer then asked the High Court for judicial review of the postponment decisions. At the same time, the Crown had issued summonses in the Court of Session seeking payment of the tax due.
Held: The court granted a decree in favour of the Crown in both proceedings. The High Court had no jurisdiction in the matter. The decision of the special commissioner on a Scottish tax case, although sitting for administrative convenience in London, remained subject to the supervisory jurisdiction of the Scottish court. Confusion could result if more than one court had jurisdiction.

Judges:

Lord Wylie

Citations:

(1986) 61 TC 1

Jurisdiction:

Scotland

Cited by:

Cited – Tehrani v Secretary of State for the Home Department HL 18-Oct-2006
The House was asked whether an asylum applicant whose original application was determined in Scotland, but his application for leave to appeal rejected in London, should apply to challenge those decisions in London or in Scotland.
Held: Such . .
Lists of cited by and citing cases may be incomplete.

Corporation Tax, Scotland, Jurisdiction

Updated: 09 May 2022; Ref: scu.245384

Kyd (Gorrie’s Trustee) v Gorrie: SCS 25 Jun 1890

A father, in the knowledge that he was insolvent, granted a lease of a shop to his son at a yearly rent of pounds 7. It was proved that the fair rent was pounds 12. In terms of the lease the son had expended about pounds 12 in repairs, and it was admitted that he had no claim against his father for repayment of this sum. Held that the lease fell to be reduced under the Act 1621, cap. 18.

Citations:

[1890] SLR 27 – 834, (1890) 17 R 1051

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – MacDonald and Another v Carnbroe Estates Ltd SC 4-Dec-2019
‘This appeal concerns the Scots law of gratuitous alienations on insolvency. It raises three principal questions. First, there is a question as to the interpretation of the term ‘adequate consideration’ in section 242(4)(b) of the Insolvency Act . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 09 May 2022; Ref: scu.613985

Liquidators of Grampian Maclennan’s Distribution Services Ltd Reclaiming Motion By, v Carnbroe Estates Ltd: SCS 23 Jan 2018

First Division, Inner House, Court of Session – allegation of sale at an undervalue. The liquidator appealed a finding that as a speedy sale was required the sale price was proper.
Held: The reclaiming notice was allowed. The sale of the company’s main place of business would not lead to a recovery. A person, once he or she became insolvent, owed a fiduciary duty to have regard to the interests of his or her creditors and as a result, if a debtor alienates property once he or she is insolvent, he or she must obtain full consideration for the property alienated. When an insolvent trading entity’s business was about to come to an end, there was no need to maintain liquidity and the paramount importance of the interests of the creditors prevailed over any need to pay debts as they fall due, and: ‘For these reasons we are of opinion that the need for a forced sale to provide immediate liquidity is not normally a factor that should be taken into account in determining the adequacy of consideration obtained for a sale of the debtor’s assets in any case where the debtor has ceased business or is about to cease business.’

Judges:

Lord President Lord Drummond Young Lord Malcolm

Citations:

[2018] ScotCS CSIH – 7, 2018 GWD 4-69, 2018 SCLR 532, 2018 SC 314, 2018 SLT 205, [2018] BPIR 461

Links:

Bailii

Statutes:

Insolvency Act 1986 242(4)(b)

Jurisdiction:

Scotland

Citing:

Appeal from – Macdonald and Others v Carnbroe Estates Ltd SCS 18-Jan-2017
(Outer House) Allegation of sale at an undervalue – Carnbroe had established that the sale of the Property was made for adequate consideration. Lord Woolman recorded the submission which counsel made on behalf of Carnbroe that Grampian was fighting . .

Cited by:

At inner house – MacDonald and Another v Carnbroe Estates Ltd SC 4-Dec-2019
‘This appeal concerns the Scots law of gratuitous alienations on insolvency. It raises three principal questions. First, there is a question as to the interpretation of the term ‘adequate consideration’ in section 242(4)(b) of the Insolvency Act . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 09 May 2022; Ref: scu.605898

Hay and Kyd v Powrie: SCS 19 Mar 1886

The pursuers were in the habit of selling cattle to A, and taking in payment the joint acceptances of the defender and him at two or three months. These acceptances were renewed again for similar periods, and generally for less amounts, the difference being paid by A in cash either at the time of the renewal or shortly after. If it was not paid at the time, the pursuers debited A’s account in their books with it, and retained the old acceptance till it was paid. All communications betwixt the pursuers and the defender took place through A, for whom the defender was really a cautioner. On A’s bankruptcy the defender retired three of the acceptances, each of which was the last of a series of renewals, but the pursuers also claimed from him the differences between the amounts in certain acceptances and the acceptances by which they were renewed. They had in each of these cases retained the old acceptance till A should fulfil his promise to pay the difference. Held that the obligations in the old acceptances were not extinguished by novation or delegation; that there was no such giving of time to A as to free the defender, even if he were entitled to the equities of a cautioner; and that the pursuers were not barred from suing on the bills by the fact that the defender in accepting the renewals believed that to the extent of the differences in the amounts of them, and of the acceptances sued on, the pursuers’ claim had been reduced.

Citations:

[1886] SLR 23 – 567

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 09 May 2022; Ref: scu.580012

Kadir, Re Judicial Review: SCS 18 Jan 2017

Judicial review of a decision by the Secretary of State for the Home Department to certify the petitioner’s asylum and human rights claims as clearly unfounded in terms of section 94 of the Nationality, Immigration and Asylum Act 2002.

Citations:

[2017] ScotCS CSOH – 3

Links:

Bailii

Jurisdiction:

Scotland

Immigration

Updated: 09 May 2022; Ref: scu.578155

Macdonald and Others v Carnbroe Estates Ltd: SCS 18 Jan 2017

(Outer House) Allegation of sale at an undervalue – Carnbroe had established that the sale of the Property was made for adequate consideration. Lord Woolman recorded the submission which counsel made on behalf of Carnbroe that Grampian was fighting for its survival and that Mr Quinn had to make a quick decision. He continued: ‘While the purchase price fell short of the open market value, Grampian had very limited options. It was in a perilous financial position. It could not afford the leisure of a lengthy marketing period. NatWest was threatening to call up the standard security and to use other diligence against it in terms of the bond and floating charge it held. There was no other offer on the table. The earlier expressions of interest were just that. There was no solid proposal to accept.
Carnbroe’s offer presented an opportunity to obtain a quick sale. To place the property on the open market would have involved significant expense. There would have been advertising costs and an estate agency fee of 1% to 1.5%. There was no clear indication that a sale would be achieved within the standard marketing period of 12 to 24 months. According to the surveyors’ evidence, a stigma can attach to a property that remains on the market too long. It might be the subject of vandalism.’
He went on the state that Mr Quinn and Mr Gaffney were not ‘associates’ in terms of the relevant legislative definition, but their long business relationship justified close scrutiny of the transaction. The expert surveyors had agreed that a price of pounds 550,000 was not inappropriate if the Property had been marketed on a closed basis for six months.

Judges:

Lord Woolman

Citations:

[2017] ScotCS CSOH – 8

Links:

Bailii

Statutes:

Insolvency Act 1986 242(4)(b)

Jurisdiction:

Scotland

Cited by:

Appeal from – Liquidators of Grampian Maclennan’s Distribution Services Ltd Reclaiming Motion By, v Carnbroe Estates Ltd SCS 23-Jan-2018
First Division, Inner House, Court of Session – allegation of sale at an undervalue. The liquidator appealed a finding that as a speedy sale was required the sale price was proper.
Held: The reclaiming notice was allowed. The sale of the . .
At Outer House – MacDonald and Another v Carnbroe Estates Ltd SC 4-Dec-2019
‘This appeal concerns the Scots law of gratuitous alienations on insolvency. It raises three principal questions. First, there is a question as to the interpretation of the term ‘adequate consideration’ in section 242(4)(b) of the Insolvency Act . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 09 May 2022; Ref: scu.578157

John Gordon, Esq, Second Son of Sir James Gordon of Park; v His Majesty’s Advocate: HL 4 Feb 1754

After a party was attainted for high treason, two sons were born to him abroad. And the forfeiture of his estate was declared to endure during the lifetime of the attainted person and his issue male. A claim was lodged by a substitute heir of entail, after the death of the attainted person, but while his sons were still alive, for possession of the estate, on the ground that as the attainted person was now dead, and his sons aliens, and so incapable of succeeding, he was entitled to the estate. Held on a question of law raised by the judges in England, that as the sons were aliens, and so incapable of succeeding, the interest of the Crown had determined-reversing the judgment of the Court of Session.

Citations:

[1754] UKHL 1 – Paton – 558

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 04 May 2022; Ref: scu.558218

Kerr v Employers Liability Assurance Co, Ltd: SCS 20 Oct 1899

An employer was insured against liability for accidents to his workmen under a policy containing a condition that if proceedings were taken to enforce any claim the insurance company should, if they so desired, ‘have the absolute conduct and control of the defences, in the name and on behalf of the employer, ‘ and that they should indemnify him against the expenses of such proceedings.
A workman raised an action of damages for personal injury against the employer, and obtained decree against him for a sum of damages and for his expenses.
The defence was in fact conducted and controlled by the insurance company in name of the employer.
The employer having become insolvent the workman raised a separate action against the insurance company for the purpose of recovering his expenses in the original action.
Held (1) that the action was competent, and (2) (on a proof) that the company were the true dominus litis in the original action, and that they were accordingly liable for the pursuer’s expenses therein.
Observed that the relation between the nominal party to a suit and the dominus litis is not necessarily that of agent and principal – Fraser v. Malloch, 25 R. 619, explained.

Judges:

Lord Kyllachy

Citations:

[1899] SLR 37 – 21

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Appeal from – Kerr v Employers’ Liability Assurance Co Ltd SCS 1902
An injured workman who had obtained an award of damages and expenses against his employer sought, after the employer became insolvent, to obtain an award of expenses against the insurer. It was accepted that, under the policy, the insurers had . .
Lists of cited by and citing cases may be incomplete.

Costs

Updated: 04 May 2022; Ref: scu.612071

M’Cuaig v M’Cuaig: SCS 5 Jan 1909

Lord President Dunedin observed: ‘The true test of whether a party is or is not dominus litis is probably whether he has or has not the power to compromise the action.’ and: ‘ . . the true interest in the cause, and by true interest I mean the entire interest, using that term not in the absolute sense, but as denoting the whole interest for all practical purposes.’

Judges:

Lord President Dunedin

Citations:

[1909] SLR 287, 1909 SC 355

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Travelers Insurance Company Ltd v XYZ SC 30-Oct-2019
Challenge to the making of a non-party costs order under section 51 of the Senior Courts Act 1981 against the product liability insurer of one of the defendants in litigation being managed under a Group Litigation Order (‘GLO’). Many of the . .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice

Updated: 04 May 2022; Ref: scu.610884

Colquhoun’s Trustees v Marchioness of Lorne’s Trustee: 1990

Citations:

1990 SLT 34

Jurisdiction:

Scotland

Cited by:

Cited – McDowall v Inland Revenue SCIT 26-Jun-2003
Gifts had been made from an estate, purportedly under a power of attorney. During his lifetime, the deceased had made various gifts to his children. As he begand to suffer Alzheimers, he gave a power of attorney. He had substantial assets, well . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 30 April 2022; Ref: scu.224086

Mooney v Lanarkshire County Council: 1954

Citations:

1954 SC 245

Jurisdiction:

Scotland

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 28 April 2022; Ref: scu.180948

Hughes v Lord Advocate: HL 21 Feb 1963

The defendants had left a manhole uncovered and protected only by a tent and paraffin lamp. A child climbed down the hole. When he came out he kicked over one of the lamps. It fell into the hole and caused an explosion. The child was burned. The Court of Session held that there was no liability.
Held: A defendant will not be liable if the injury actually sustained is not foreseeable, if it is of a different kind from that which the defendant ought to have foreseen as the likely outcome of his want of care. Liability was sought to be established in respect of ‘meddlesome children’. The House considered the people to whom a duty was owed: (Lord Reid) ‘So we have (first) a duty owned by the workmen, (secondly) the fact that if they had done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. The ground on which this case has been decided against the appellant is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender’s fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way.’ and ‘This accident was caused by a known source of danger, but caused in a way which could not have been foreseen and in my judgment, that affords no defence.’
‘It is true that the duty of care expected in cases of this sort is confined to reasonably foreseeable dangers, but it does not necessarily follow that liability is escaped because the danger actually materialising is not identical with the danger reasonably foreseen and guarded against.’ A defender is liable although the damage may be a good deal greater in extent than was foreseeable, as he can escape liability only if the damage can be regarded as differing in kind from what was foreseeable.
Lord Morris said: ‘My Lords, in my view, there was a duty owed by the defenders to safeguard the pursuer against the type or kind of occurrence which in fact happened and which resulted in his injuries, and the defenders are not absolved from liability because they did not envisage ‘the precise concatenation of circumstances which led up to the accident.’
Lord Pearce said: ‘The defenders are therefore liable for all the foreseeable consequences of their neglect. When an accident is of a different type and kind from anything that a defender could have foreseen, he is not liable for it-see The Wagon Mound, [1961] A.C.388. But to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable . . ‘

Judges:

Lord Jenkins, Lord Reid, Lord Guest, Lord Pearce

Citations:

[1963] AC 837, [1963] 1 All ER 705, 1963 SC (HL) 31, [1963] UKHL 1, [1963] UKHL 8

Links:

Bailii, Bailii

Jurisdiction:

Scotland

Citing:

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 by:

Cited – Groom v Selby CA 18-Oct-2001
The defendant negligently failed to discover the claimant’s pregnancy. A severely disabled child was born. The question was as to the responsibility for payment of excess costs of raising a severely disabled child, a claim for economic loss. The . .
Cited – Mullin v Richards and Birmingham City Council CA 6-Nov-1997
Two 15 year old schoolfriends were playing with rulers when one shattered and a fragment injured the eye of the other. She claimed negligence in the school. She appealed a finding that she was herself fifty per cent responsible.
Held: Although . .
Cited – The Attorney General v Hartwell PC 23-Feb-2004
PC (The British Virgin Islands) A police officer had taken the police revolver, and used it to shoot the claimant. It was alleged that the respondent police force were vicariously liable for his acts and also . .
Cited – McNamara v North Tyneside Metropolitan Borough Council CA 21-Feb-1997
The claimant sought damages for personal injuries. The case he presented at trial differed from that pleaded, and he now appealed dismissal of his claim.
Held: The variation was sufficiently serious to justify the refusal of relief. In fact . .
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 – Jolley v Sutton London Borough Council QBD 1998
The claimant, a boy was injured when playing around a boat abandoned on land owned by the defendant. He had propped it up to attempt a repair, and was crushed when it fell on him. He said that in not removing the boat they had been negligent.
Cited – Regina v London Borough of Sutton, ex parte Jolley CA 19-Jun-1998
The plaintiff, a boy, was injured when playing on a derelict boat left on council land. The council appealed an award of damages against it.
Held: A local authority may be liable for injury caused by a derelict boat not removed from their land . .
Cited – Jolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
Cited – Jebson v Ministry of Defence CA 28-Jun-2000
The claimant was a guardsman travelling in the rear of a service lorry. He fell from the tailgate suffering severe injury. He was drunk after a social trip.
Held: Though a person could normally expect to be responsible himself for incidents . .
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 – Robb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
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 – Gerrard v Staffordshire Potteries Ltd CA 2-Nov-1994
The plaintiff was injured when working for the defendants spraying glaze onto jars. A small foreign body was blown into her eye. She said that no eye protection had been suuplied as required by the regulations.
Held: The plaintiff’s appeal . .
Cited – Gerrard v Staffordshire Potteries Ltd CA 2-Nov-1994
The plaintiff was injured when working for the defendants spraying glaze onto jars. A small foreign body was blown into her eye. She said that no eye protection had been suuplied as required by the regulations.
Held: The plaintiff’s appeal . .
Cited – Hampshire Police v Taylor CA 9-May-2013
The officer had been cut by glass when clearing out a cannabis factory. The risk assessment had identified only a need for latex gloves. She said that given the environment heavier garden gloves should have been provided. The Chief Constable . .
Cited – Ogwo v Taylor HL 19-Nov-1987
A firefighter sought damages for personal injuries from the party negligent in starting a fire, suffered while attending it.
Held: A property owner owes a duty of care to firemen, not, by his negligence, to start a fire, or to create special . .
Cited – Devine v Colvilles Ltd HL 11-Mar-1969
The House considered the position of the doctrine of res ipsa loquitir. The plaintiff had been injured falling or jumping from a raised platform.
Held: The claim succeeded. ‘ I hold it proved that there was a general panic. Now the defenders . .
Lists of cited by and citing cases may be incomplete.

Negligence

Leading Case

Updated: 24 April 2022; Ref: scu.182841