Tag: Scotland

Henry Wedderburn, Esq, Second Son of Charles Wedderburn of Gosford v Sir Peter Halket of Pitfirran, Bart, Alexander Hart, His Curator Ad Litem, and John Wedderburn of Gosford, Repondents: HL 19 Mar 1770

Entail – Power to Alter Order of Succession.-
Entail taken to the makers and longest liver in liferent, and to their eldest son in fee, whom failing his second son, andc., with a prohibition against altering the order of succession; but no restraint against selling or charging the estate with debt. The eldest son, who succeeded after the maker, finding his own eldest son an idiot, altered the order of succession, and gave the estate to his second son, and the heirs precisely marked out by the original entail. Held, that as he was fiar of the estate, he could exercise this power, more especially seeing that the deed so executed had not in view fraudulently to alter the order of succession, but merely to provide for a contingency that had not been contemplated by the maker.

Citations:

[1770] UKHL 2 – Paton – 231, (1770) 2 Paton 231

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 26 October 2022; Ref: scu.561669

His Majesty’s Advocate v William Urquhart of Meldrum, Esq: HL 6 Feb 1755

Decree of Sale. – Patronage. – Testing Clause – Sasine. –
1 st. A decree of sale does not cut off the right of or exclude parties not called in the ranking and sale; and the Act 1695 does not protect a purchaser in such a case. 2d. A contract as to patronage sustained, though the witnesses’ designations to the subscription of one of the contracting parties were not inserted in the body of the deed. 3d. Found no objection to a sasine that the notary’s docquet did not mention the particular symbols used in passing infeftment, or bear the notary’s motto affixed to his signature, the sasine being eighty years old, and possession having followed upon it.

Citations:

[1755] UKHL 1 – Paton – 586

Links:

Bailii

Jurisdiction:

Scotland

Legal Professions

Updated: 26 October 2022; Ref: scu.558222

Brown and Others (Brown’s Trustees) v Hay: SCS 12 Jul 1898

A clerk employed to audit the books of a firm of law-agents communicated to the inland revenue the contents of a document which belonged to a client of the firm, and which had come into his possession solely in the capacity of auditor. The document was a statement of the client’s annual profits considerably in excess of the returns actually made by him to the Inland Revenue.
In an action raised by the client against the clerk, held that by divulging the contents of the paper in question to a third party the defender had infringed the pursuer’s right of property in the document, and therefore that the pursuer was entitled to interdict and damages.
Per Lord M’Laren-‘I have never heard or read that the duty of assisting the Treasury in the collection of the public revenue was of such a paramount nature that it must be carried out by private individuals at the cost of the betrayal of confidence and the invasion of the proprietary rights of other people.’

Judges:

Lord Stormonth Darling, Ordinary

Citations:

[1898] SLR 35 – 877

Links:

Bailii

Jurisdiction:

Scotland

Legal Professions

Updated: 25 October 2022; Ref: scu.612267

MBR v The Secretary of State for The Home Department: SCS 17 May 2013

Application: ‘to hold [the procedural judge’s] interlocutor of 12 February 2013 pro non scripto and, in any event, for determination of the application for leave by a quorum of three judges of the Inner House’.

Judges:

Lord Carloway. Lord Justice Clerk

Citations:

[2013] ScotCS CSIH – 66

Links:

Bailii

Jurisdiction:

Scotland

Immigration, Litigation Practice

Updated: 13 October 2022; Ref: scu.512060

A v The Secretary of State for The Home Department: SCS 17 May 2013

The reclaimer seeks recall of an interlocutor of Lord Boyd of Duncansby dated 7 November 2012 by which he allowed an amendment of the petition to anonymise the petitioner (the anonymity order) and gave directions in terms of section 11 of the Contempt of Court Act 1981 (the 1981 Act) prohibiting publication of the name of the petitioner and other matters (the section 11 order).

Judges:

The Lord President

Citations:

[2013] ScotCS CSIH – 43, 2013 SC 533, 2013 SLT 749, 2013 GWD 19-377

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Leave – A, Re Permission To Appeal Under Section 103(B) of the Nationality, Immigration and Asylum Act 2002 SCS 18-Nov-2008
Application for permission to appeal against a determination of the Asylum and Immigration Tribunal . .

Cited by:

At Court of Session – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Lists of cited by and citing cases may be incomplete.

Media

Updated: 13 October 2022; Ref: scu.510125

In re Wanser Ltd: 1891

A landlord of Scottish property began proceedings after a winding up order for sequestration of the company’s goods on the premises in order to answer for future rent.
Held: North J allowed the sequestration to continue, being satisfied that under Scottish law the landlord was a secured creditor at the date of commencement of the winding up, and therefore in the same position as a mortgagee Proceedings in insolvency begun without the stipulated leave should not be regarded as irretrievably null but rather as existing and capable of redemption by the late giving of leave.

Judges:

North J

Citations:

[1891] 1 Ch 305

Jurisdiction:

England and Wales

Cited by:

Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Scotland, Landlord and Tenant

Updated: 12 October 2022; Ref: scu.567273

Tom Gordon and Scottish Ministers: SIC 6 Feb 2012

SIC This decision considers whether the Scottish Ministers (the Ministers) complied with the technical requirements of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to an information request made by Mr Gordon

Citations:

[2012] ScotIC 024 – 2012)

Links:

Bailii

Scotland, Information

Updated: 05 October 2022; Ref: scu.451527

Graham Devine and South Lanarkshire Council: SIC 5 Jan 2012

SIC Mr Devine requested from South Lanarkshire Council (the Council) information relating to an incident that had affected his property. The Council responded by providing some information, but withholding other information in terms of section 36(1) of FOISA (as information to which a claim of confidentiality could be maintained in legal proceedings). The Council also gave notice that it did not hold any information in respect of part of Mr Devine’s request. Following a review, as a result of which the Council disclosed some more information, but also relied upon section 38(1)(b) of FOISA for withholding certain personal information, Mr Devine remained dissatisfied and applied to the Commissioner for a decision.
Following an investigation, in the course of which Mr Devine confirmed that he was not interested in certain of the withheld personal data, the Commissioner found that the Council had been correct in withholding the remainder of the information under either section 36(1) or section 38(1)(b) of FOISA. He did not require any action by the Council.

Citations:

[2012] ScotIC 002 – 2012)

Links:

Bailii

Scotland, Information

Updated: 05 October 2022; Ref: scu.451511

Kapri v The Lord Advocate for and On Behalf of The Court of First Instance Judicial District of Elbasan, Albania: HCJ 2 Feb 2012

The applicant objected to his proposed extradition to Albania, saying that he would not receive a fair trial. An examination of the reports disclosed that counsel for the Lord Advocate’s analysis of them was correct. None of the examples of the particular deficiencies in the judicial system impacted on circumstances in which the appellant would find himself if returned to face trial in Albania. The material which they contained was of a wholly general nature, and it contained nothing to suggest that any of the concerns identified would apply to his case. Lord Turnbull said: ‘Nothing within either report supports the appellant’s contention that ‘he’ would face an unfair trial on his return to Albania or in any way supports his contention that any retrial would lack the fundamental requirements of article 6. We note also that nothing in either report bears upon the question of whether any such retrial would comply with the particular requirements referred to in section 85(8) of the Act. Accordingly, in our view, the proposed new evidence contained in the reports prepared by Dr Bogdani and Ms Vickers is irrelevant to the ground of appeal in question and ought not to be admitted for this reason.’

Judges:

(Lady Paton, Lord Turnbull and Lord Marnoch

Citations:

[2012] ScotHC HCJAC – 17

Links:

Bailii

Statutes:

Extradition Act 2003

Cited by:

See Also – Kapri v The Lord Advocate Representing The Government of The Republic of Albania HCJ 1-Jun-2012
. .
At HCJ – Kapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .
See Also – Kapri v Her Majesty’s Advocate (For The Republic of Albania) HCJ 25-Apr-2014
. .
See Also – Kapri v Her Majesty’s Advocate, Re In The Application By (Albania) HCJ 17-Jun-2014
. .
Lists of cited by and citing cases may be incomplete.

Scotland, Extradition

Updated: 04 October 2022; Ref: scu.451013

Elsick Development Co Ltd v Aberdeen City and Shire Stratetgic Development Planning Authority and Another: SCS 29 Apr 2016

(First Division, Inner House) ED appealed from the adoption of a supplementary guidance (SG).
Held: The appeal succeeded. The First Division upheld three of the four grounds of appeal advanced. First, the court upheld the submission that the Authority had failed to comply with national policy on the use of planning obligations, holding that it was a fundamental principle of planning law, which was reflected in the Circular, that a condition attached to the grant of a planning permission, whether contained in a planning obligation or otherwise, must fairly and reasonably relate to the permitted development. The First Division accepted the distinction, which the reporter had drawn, between the sharing of costs among developments which had cumulatively required a particular investment in transport infrastructure on the one hand and the funding of a basket of measures, not all of which were relevant to every development. The court referred to the original Table 7.2 and held that many of the planned developments had no impact at all on several of the proposed infrastructure interventions. It added: ‘. . this applies to both Elsick and Blackdog relative to a number of the interventions. In respect of others the impact is de minimis’. The result was that the additional sentence in the SG about complying with the guidance in the Circular, which was added at the request of the Scottish Ministers, could not prevent the obligation to contribute to the Fund, in which contributions were pooled, from breaching the Circular. The First Division also upheld Elsick’s submission that there was no rational basis for relying on Table 3 of Appendix 2 of the SG (ie the revised table 7.2 of the CTA) to support the contention that a particular intervention was made necessary by reason of either a particular development or the cumulative effect of it along with other developments.

Judges:

Lrd Carloway

Citations:

[2016] ScotCS CSIH – 28, 2016 GWD 19-347

Links:

Bailii

Statutes:

Town and Country Planning (Scotland) Act 1997 75, Planning etc (Scotland) Act 2006

Jurisdiction:

Scotland

Cited by:

Appeal from – Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited SC 25-Oct-2017
The court was asked whether, anticipating substantial growth, a local authority had power to attach to permissions for development conditions intended to recover sums for pooled fund for infrastructure development.
Held: The appeal failed. . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 01 October 2022; Ref: scu.564408

Mactavish’s Trustees v Ogston’s Executors: SCS 10 Mar 1903

By a trust-disposition dated in 1898 a truster left certain funds to his nephew in liferent, declaring that the capital should belong to the liferenter’s issue, in such proportions as he should direct, and failing such issue that it should be disposed of as the liferenter might by will direct. The nephew survived the truster, and died without issue, leaving a will dated in 1894, by which he disposed of ‘the whole estate and effects of every description, heritable and moveable, real and personal, of which I may die possessed.’ In a special case, in which there was no statement whether the nephew did or did not know of the power of appointment conferred upon him, held that the power was validly exercised by his will.

Citations:

[1903] SLR 40 – 458

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 25 September 2022; Ref: scu.611134

Grieve v Douglas-Home: SCS 23 Dec 1964

(Election Court)

Judges:

Lord Migdale

Citations:

[1964] ScotCS 3, 1965 SC 315, 1965 SLT 186

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Distinguished – Director of Public Prosecutions v Luft HL 26-May-1976
The defendants were campaigning against the National Front in an election. They were separately said to have distributed leaflets infringing the 1949 Act, in that the expenses were not authorised, and the leaflets did not have the name of the . .
Lists of cited by and citing cases may be incomplete.

Elections

Updated: 17 September 2022; Ref: scu.279471

Mrs Annie Lawson or Surtees v Robert Wotherspoon: SCS 20 Jan 1872

This was an action of declarator of marriage founded upon promise subsequente copula, or alternatively, for damages for breach of promise of marriage.
Held: Circumstances in which the judicial examination of the defender in a declarator of marriage was refused, there being no undue concealment or suspicion attaching to him, and no necessary probability of a penuria testium.
Opinion by the Lord President that judicial examination is still competent after proof has been led

Citations:

[1872] SLR 9 – 230

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 16 September 2022; Ref: scu.576194

Murray v King’s Advocate: SCS 18 Feb 1502

A bastard leaving a wife, but no children, the King’s donatary has right to the whole heritage and heirship moveables; also to the half of the other moveables, under burden of the bastard’s debts, funeral expences, andc. The relict has right to the remainder of the moveables.

Citations:

[1502] Mor 1346

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 15 September 2022; Ref: scu.543968

BBC, Petitioners: HCJ 11 Apr 2000

The absence of a jury from a criminal trial was not sufficient of itself to set aside the rule against the broadcasting of criminal proceedings. To set aside the rule, the onus was on the broadcaster to justify the departure from the rule and to persuade the court that there would be no interference in the proper administration of justice. It was not for the courts to justify acting in accordance with the rule.

Citations:

Times 11-Apr-2000, 2001 SCCR 440

Statutes:

Contempt of Court Act 1981

Jurisdiction:

Scotland

Cited by:

See Also – BBC, Petitioners (No 2) HCJ 13-Jun-2000
A ban on the televising of the Lockerbie trial was not a breach of the broadcasters rights under article 10. The fact that arrangements had been made for the trial to be relayed by television under strict conditions to relatives of the deceased, but . .
Cited – Her Majesty’s Advocate v William Frederick Ian Beggs (Opinion No 1) HCJ 17-Sep-2001
The defendant complained that the publicity preceding his trial for a notorious murder would prejudice his right to a fair trial, and sought an order under the 1981 Act to delay any further publicity until after the trial, partcularly where previous . .
Lists of cited by and citing cases may be incomplete.

Media, Criminal Practice

Updated: 13 September 2022; Ref: scu.78300

Jude and Others v Her Majesty’s Advocate: HCJ 11 May 2011

Judges:

Lord Justice Clerkm Lord Osborne, Lord Eassie, Lord Clarke, Lord Mackay of Drumadoon

Citations:

[2011] ScotHC HCJAC – 46, 2011 SLT 722

Links:

Bailii

Cited by:

Cited – McGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Appeal from – Jude v Her Majesty’s Advocate SC 23-Nov-2011
The Lord Advocate appealed against three decisions as to the use to be made of interviews where the detainees had not been given access to lawyers. In each case the prosecutor now appealed after their convictions had been overturned in the light of . .
Lists of cited by and citing cases may be incomplete.

Scotland, Crime

Updated: 12 September 2022; Ref: scu.439700