Tag: Scotland

West Lothian Council v MB and KV: SCS 20 Jul 2016

(Second Division, Inner House) The primary source of the local authority’s concerns in relation to the child arose from what the Lord Ordinary described as ‘perceived concerns about the behaviour of [the father]’. The first concern, of particular importance to the local authority, related to ‘criminal charges of alleged sexual conduct . . brought in England in 2010’. The Lord Ordinary did not explain what those charges were. Whatever they may have been, they were dropped within a short period of being made, because the complainant had given inconsistent and contradictory accounts. The police did not pass the case to the Crown Prosecution Service. It appears that the complainant was a vulnerable female person who suffered from learning difficulties. According to the father’s affidavit, she was a friend of his who had wanted to have a sexual relationship with him. He had not been interested. She then made allegations to the police that he had raped her. This court has been informed that they were both aged about 19 at the time. The Lord Ordinary narrates that he heard evidence from a police officer that the father had given a statement in which he accepted that he had had consensual sex with the complainant. The father also gave evidence before the Lord Ordinary. He accepted that he had said what was recorded in the statement, but denied that it was true.
Having narrated this evidence, and expressed reservations about the evidence given by the father in relation to this matter, the Lord Ordinary stated: ‘In these circumstances it appears to me to be established on the balance of probabilities that the concerns harboured by the petitioners in relation to the [father’s]’s sexual proclivities were justified. In arriving at that conclusion I should make it clear that I am making no finding in relation to whether or not the sexual allegations made in 2010 were true or not. The relevancy or otherwise of these allegations is not a matter for me, nor have I heard any evidence in relation to the relevancy of these matters. My finding is confined to concluding that, notwithstanding the lack of any criminal conviction, there was material available to the petitioners at the time of the child EV’s birth relative to the [father]’s behaviour towards vulnerable females which they could not ignore and were required to have consideration of when formulating a policy or plan towards the ongoing care of the child EV.’

Judges:

Lady Dorrian, Lord Justice Clerk

Citations:

[2016] ScotCS CSIH – 60, 2016 Fam LR 134, 2017 SCLR 304, 2016 GWD 25-463

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Appeal from – Re EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 23 July 2022; Ref: scu.568782

KR v Stirling Council: SCS 24 May 2016

The Court discussed the tests in section 83 for the granting of authority for adoption. They include a requirement that the court must be satisfied that the child has been, or is likely to be, placed for adoption.
Lord Drummond Young stated: ‘Thus section 84 imposes two critical conditions if a permanence order is to be made in a case where the natural parent does not consent. First, in terms of subsection (3), the court must consider that it would be better for the child that the order should be made than that it should not be made; that decision must be made in the light of the requirement of subsection (4) that the welfare of the child throughout childhood is to be the paramount consideration. Secondly, in terms of subsection (5)(c)(ii), the court must be satisfied that the child’s residence with the parent is, or is likely to be, seriously detrimental to his or her welfare. Of the two conditions, that in subsection (5)(c)(ii) is the more fundamental: it imposes a threshold test, in the sense that, if it is not satisfied, the court is not permitted to dispense with the parent’s consent. It is only if the test is satisfied that the court requires to go on to consider the welfare of the child … The critical point is that the requirements of subsection (5) set a threshold test, and unless that test is satisfied no permanence order can be made and any further consideration of the other provisions of section 84 is irrelevant.’
Lord Drummond Young added: ‘The threshold test is in our opinion a matter of fundamental importance, and we must express regret at the manner in which section 84 of the Adoption and Children (Scotland) Act 2007 is structured. In that section the fundamental threshold provision comes at the end, after the subsections dealing with the welfare of the child. It would clearly be more sensible to state the threshold test at an earlier point, before the welfare provisions, because the threshold test must be satisfied before any of the other provisions becomes relevant. As matters stand there is an obvious risk that the sheriff will fail to appreciate the fundamental importance of the criterion in subsection (5). That is what appears to have happened in the present case.’

Judges:

Lod Drummond Young

Citations:

[2016] ScotCS CSIH – 36, 2016 GWD 17-313, 2016 SCLR 557, 2016 SLT 689, 2016 Fam LR 108

Links:

Bailii

Statutes:

Adoption and Children (Scotland) Act 2007 80 83

Jurisdiction:

Scotland

Cited by:

Cited – Re EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .
Lists of cited by and citing cases may be incomplete.

Adoption

Updated: 23 July 2022; Ref: scu.565688

Gordon, Marquess of Aberdeen and Temair v Messrs Turcan Connell: SCS 23 Dec 2008

The pursuer sought damages in professional negligence saying that the defender solicitors had failed to advise them properly in the management of the family trusts so as to minimise the liability to tax.

Judges:

Lady Smith

Citations:

[2008] ScotCS CSOH – 183

Links:

Bailii

Scotland, Professional Negligence

Updated: 22 July 2022; Ref: scu.279820

Sloan v B: SCS 12 Jun 1991

Lord President Hope, delivering the opinion of the court, explained that it is by an application of the same principle that it has long been recognised that proceedings in open court may be reported in the press and by other methods of broadcasting in the media: ‘There is no doubt that as a general rule the proceedings of a court are open to the public, and thus to public scrutiny, at all times. Exceptions have to be made in special circumstances to allow the court to conduct its proceedings behind closed doors where the interests of justice require this to be done. But that is always the exception, and the general principle which applies equally in the sheriff court as it does in the Court of Session is that the court sits both for the hearing of cases and for the advising of them with open doors.’

Judges:

Lord President Hope

Citations:

[1991] ScotCS CSIH – 4, 1991 SLT 530, 1991 SC 412

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Richardson v Wilson SCS 1879
Lord President Inglis discussed the principle that the reporting of court cases had to be open: ‘The principle on which this rule is founded seems to be that, as courts of justice are open to the public, anything that takes place before a judge or . .

Cited by:

Cited – 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: 22 July 2022; Ref: scu.279554

McDonald v Burns: SCS 29 Mar 1940

Judges:

Lord Justice-Clerk Aitchison

Citations:

1940 SLT 325, 1940 SC 376, [1940] ScotCS CSIH – 3

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

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.

Scotland

Updated: 21 July 2022; Ref: scu.279382

Scottish Insurance Commissioners v Church of Scotland: SCS 18 Oct 1913

An assistant minister in the United Free Church said that he was an employee of the church.
Held: He was not. Lord Kinnear said that the status of an assistant minister ‘is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master.’

Judges:

Lord Kinnear

Citations:

[1913] ScotCS CSIH – 3, (1914) SC 16

Links:

Bailii

Cited by:

Cited – Methodist Conference v Preston SC 15-May-2013
Minister was not an employee
The claimant asserted unfair dismissal. The Conference said that as an ordained minister she was not an employee, and was outwith the jurisdiction of such a claim.
Held: The Conference’s appeal succeeded (Baroness Hale dissenting). The essence . .
Lists of cited by and citing cases may be incomplete.

Scotland, Employment, Ecclesiastical

Updated: 21 July 2022; Ref: scu.279310

M’Caig v University of Glasgow: SCS 18 Dec 1906

The heir in heritage of the late Mr M’Caig of Oban seeks to establish her rights as such, notwithstanding the fact that he has made a testament in favour of trustees, and has directed them to hold his estate and to apply the proceeds in doing certain things on the estate. She does not impugn the deed on the ground of mental incapacity. She attacks it on the ground that it does not give any disposal of the estate for the benefit of any person or class of persons, and is in no better position to exclude her than if it had simply disinherited her without putting anyone in her place, which it is plain would not have invalidated her right as heir.

Judges:

Lord Stormonth-Darling

Citations:

[1906] ScotCS CSIH – 2, 1907 SC 231, (1906) 14 SLT 600

Links:

Bailii

Scotland, Wills and Probate

Updated: 21 July 2022; Ref: scu.279270

Mason v Orr: SCS 28 Nov 1901

Action directed against the Superintendent of the Central Division of the Glasgow Police for an alleged assault, and the question is whether a relevant case has been stated.

Judges:

Lord M’Laren

Citations:

[1901] ScotCS CSIH – 1, (1901) 4 F 220, (1901) 9 SLT 269, [1901] SLR 39 – 148

Links:

Bailii, Bailii

Jurisdiction:

Scotland

Torts – Other, Police

Updated: 21 July 2022; Ref: scu.279256

Kelly (John Joseph) v Mackinnon: HCJ 11 May 1982

Judges:

Lord Justice-General Emslie

Citations:

[1982] ScotHC HCJAC – 2, 1982 SCCR 205, 1983 SLT 9, 1982 JC 94

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Bewley v Regina CACD 6-Jul-2012
The defendant appealed against his conviction for possession of a firearm. The crown had been able to make it discharge a pellet only by taking elaborate preparatory steps. ‘There being no dispute but that the starting pistol was a lethal-barrelled . .
Lists of cited by and citing cases may be incomplete.

Scotland, Crime

Updated: 21 July 2022; Ref: scu.279204

Moore v The Scottish Daily Record and Sunday Mail Ltd: SCS 9 Dec 2008

Citations:

[2008] ScotCS CSIH – 66

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Moore v Scottish Daily Record and Sunday Mail Ltd SCS 7-Aug-2008
. .

Cited by:

Cited – Davies and Another (T/A All Stars Nursery) v The Scottish Commission for The Regulation of Care SC 27-Feb-2013
The appellants ran a day care nursery regulated under the 2001 Act. The Commission, being concerned at the care provided, sought to revoke the registration in proceedings before the Sherriff’s Court. Before they were concluded, the Commission was . .
Lists of cited by and citing cases may be incomplete.

Scotland, Defamation

Updated: 21 July 2022; Ref: scu.278869

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

Judges:

Lord Kingarth, Lord Carloway, Lord Marnoch

Citations:

[2008] ScotCS CSIH – 59, [2008] CSIH 59

Links:

Bailii

Statutes:

Nationality, Immigration & Asylum Act 2002 103(B)

Cited by:

Leave – 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 . .
Leave to appeal to 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.

Scotland, Immigration

Updated: 19 July 2022; Ref: scu.277904

Mavor and Coulson v Grierson: SCS 16 Jun 1892

A firm of electric contractors raised an action against a person whose house they had lighted with electricity, for pounds 169, 0s. 7d., the balance of their account. After the summons had been signeted, but before it was called, the defender offered the pursuers pounds 155 in full of their claims. This offer was refused. In the defences to the action the defender tendered the pursuers pounds 50 ‘in full of their claims in this action.’ The Court in decerning against the defender for payment to the pursuers of pounds 44, 13s. 1d., held that the defender was entitled to expenses of process.

Citations:

[1892] SLR 29 – 766

Links:

Bailii

Jurisdiction:

Scotland

Litigation Practice, Costs

Updated: 17 July 2022; Ref: scu.613531

Matthews v Hunter and Robertson Ltd: SCS 11 Jun 2008

Judges:

Lord Brodie

Citations:

[2007] ScotCS CSOH – 88

Links:

Bailii

Citing:

Cited – Clarke v Bruce Lance and Co CA 1988
The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Professional Negligence

Updated: 15 July 2022; Ref: scu.268803

Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd: SCS 1992

(Inner House) When Cumbernauld town centre was built, a walkway was provided between the shopping centre and residential areas. It was used for many years, but then closed to prevent crime. The authority sought an interdict to keep it open as a public right of way. The court discussed the application of prescription to public rights of way. Lord President Hope said: ‘where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask that his inaction be ascribed to his good nature or to tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware of that fact so that they know that the route is being used by them only with his permission and not as of right.’ and ‘the occasional or irregular use of a path by hill walkers or by others who resort to the countryside can readily be distinguished from the continuous use of it by members of the public as a route from one public place to another. It seems to me to be clear, on an examination of all the later authorities, that a proprietor who allows a way over his land to be used by the public in the way the public would be expected to use it if there was a public right of way cannot claim that that use must be ascribed to tolerance, if he did nothing to limit or regulate that use at any time during the prescriptive period.’

Judges:

Lord President (Hope)

Citations:

1992 SLT 1035, [1992] CLY 6215, 1992 SC 357

Statutes:

Prescription and Limitation (Scotland) Act 1973 3(3)

Jurisdiction:

Scotland

Citing:

Appealed to – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .

Cited by:

Appeal from – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .
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: . .
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 15 July 2022; Ref: scu.187767