Tag: Scotland

Aitken v Robson: SCS 6 Jan 1914

In a sequestration the creditors elected a trustee but failed to decide on the sufficiency of the caution, and the election of the trustee was never confirmed by the Sheriff. After the lapse of seven years, it being no longer competent under the Bankruptcy (Scotland) Act 1913 for the trustee to obtain confirmation, the Court, on the petition of the bankrupt, in the exercise of its nobile officium, without making a remit to the Accountant of Court, discharged the bankrupt but refused to reinvest him in his estates.

Citations:

[1914] SLR 184

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 10 July 2022; Ref: scu.616610

Transocean International Resources Ltd and others v Russell and others: EAT 4 Oct 2006

EAT The claimants were offshore workers the vast majority of whom were employed to work on installations situated on or over the UK Continental Shelf (‘UKCS’). They presented applications to the Employment Tribunal in which they claimed that their employers were in breach of the Working Time Regulations 1998 in relation to their rights to paid annual leave. The employers asserted that the regulations did not apply to the UKCS. After a pre-hearing review, the Employment Tribunal held that they did. The employers appealed (by which time the regulations had been amended so as to expressly cover the UKCS but only as from 1 October 2006, leaving parties in dispute regarding the earlier period). The EAT held that the regulations had applied to the UKCS prior to the 2006 amendment.

Judges:

Smith J

Citations:

[2006] UKEAT 0074 – 05 – 0410, UKEATS/0074/05

Links:

Bailii

Cited by:

See Also – Craig and Others v Transocean International Resources Ltd EAT 16-Dec-2008
EAT Working Time Regulations.
Annual leave of offshore workers. Whether employers had given regulation 15 notices. Whether annual leave could be taken out of onshore ‘field breaks’.
Appeal allowed and . .
Appeal from – Tl Russell and Others v Transocean International Resources Ltd and Others SCS 19-Oct-2010
. .
At EAT – Russell and Others v Transocean International Resources Ltd and Others SC 7-Dec-2011
russell_transocean
The appellants worked on various shifts for the defendants in off-shore oil-fields. They were given on-shore rest breaks, which the employers said should count toward their holiday entitlements.
Held: The Court dismissed the employees’ appeal . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 09 July 2022; Ref: scu.247832

Morgan v Stirling Council: SCS 10 Oct 2006

(Outer House) Lord Glennie pointed out that anyone who is homeless is also vulnerable, and accordingly it follows that section 189(1)(c) must contemplate homeless people who would be more vulnerable than many others in the same position (especially given the words ‘or other special reason’ which show that vulnerability arising from many causes is covered).

Judges:

Lord Glennie

Citations:

[2006] ScotCS CSOH – 154, [2006] Hous LR 95, 2006 SLT 962

Links:

ScotC, Bailii

Statutes:

Housing Act 1996 189(1)

Cited by:

Cited – Hotak and Others v London Borough of Southwark and Another SC 13-May-2015
The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those . .
Lists of cited by and citing cases may be incomplete.

Scotland, Housing

Updated: 08 July 2022; Ref: scu.245477

The Scottish Lion Insurance Company Ltd, Re Sanction of A Scheme of Arrangement: SCS 8 Mar 2006

Sanction had been sought for a scheme of arrangement on the winding up of an insurance company. There were objections. The original scheme had been proposed under English law, and it would be inappropriate for a Scottish court to try to sanction such an arrangement. Payment of et fess of Engliah lawyers was sought.
Held: the court could not sanction the payment in the manner requested. The court set out how the Auditor must look at the English solicitor’s fee account.

Citations:

[2006] ScotCS CSOH – 37

Links:

Bailii

Statutes:

Companies Act 1985 425, Court of Session Act 1988, Interpretation Act 1978 811

Jurisdiction:

Scotland

Citing:

Cited – Wilson v Craig 1983
. .
Cited – Wimpey Construction (UK) Ltd v Martin Black and Co (Wire Ropes) Ltd 1988
The provisions of the Table of Fees under the Rules of Court were only applicable to Scottish solicitors. The court set out how fees incurred to solicitors practising outside Scotland are recovered in a Scottish taxation of expenses. In summary: 1. . .
Cited – Laing v Scottish Arts Council SCS 15-Dec-2000
A Lord Ordinary has power to correct an interlocutor to bring it into line with the court’s original intention. . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, Costs

Updated: 07 July 2022; Ref: scu.238902

Clark v Watson: 1982

Two dentists practised in partnership. The co-partner said that on the death of one, to his estate should be paid ‘the Capital standing to the credit of the deceased Partner in the Accounts of the Partnership’. The court was asked whether that provision would require accounts to be taken as at the date of death.
Held: The practice would have to draw up accounts to the date of death, but: ‘If this conclusion is incorrect and, contrary to my opinion, the phrase ‘the Accounts of the Partnership’ in cl. Fourteenth falls to be construed as meaning inter alia a balance sheet as at 31 March 1977, it nevertheless follows from my opinion that there is nothing in this contract of copartnery to take it outwith the scope of the general rule that the pursuer qua executrix of the deceased is entitled to have the assets entered at their fair value in a fresh balance sheet as at 31 March 1977. This is certainly so if the deceased is not proved to have approved these existing accounts prepared as at 31 March 1977. Although I have heard no debate on what would be the effect of his approval of the accounts, I venture to think that his approval would not bind the pursuer to accept payment in accordance with these accounts. They were prepared upon the assumption that the partnership would continue. The deceased may have agreed to the assets being inserted at a book value in accounts prepared upon that assumption, but I do not, as at present advised, see how the deceased’s approval of accounts for that purpose can bind the pursuer to accept that valuation of the assets for the purpose of obtaining payment of the deceased’s share of capital on dissolution of the partnership by his death.’

Judges:

Lord Dunpark

Citations:

1982 SLT 450

Jurisdiction:

Scotland

Cited by:

Cited – In Re White (Dennis) Deceased; White v Minnis and Another CA 25-May-2000
A family partnership had carried freehold property at its historic cost value in the books, rather than at a market value. After the death of one partner the share came to be valued.
Held: Being a family partnership there was presumption that . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 July 2022; Ref: scu.238867

Forsyth v A F Stoddard and Co Ltd: OHCS 1985

An action for damages by an employee against his employer was raised 48 days after the expiry of the triennium due to an oversight by an assistant with the pursuer’s solicitors. The sheriff refused to allow the action to be brought, the Sheriff Principal allowed it and on appeal the Second Division reversed the decision of the Sheriff Principal.
Held: A pursuer in such circumstances has to accept responsibility for the sins of omission or commission of his solicitor as ‘the correct exposition of the law’. since the pursuer was legally aided, the defenders would probably have to pay their own expenses, win or lose, whereas if the pursuer were refused the indulgence which he sought the defenders would not be placed in that position, was a relevant consideration: ‘In every case of this nature there is a common theme. If the pursuer is granted the court’s indulgence the defender loses a cast iron case, since but for that he would be legally free from the claim, and he is faced with the risk of losing the case with the consequential financial repercussions. That is a factor to be taken into account. He has no way out of that. On the other hand, if the pursuer is not granted the court’s indulgence his claim against the defender comes to an end, and the defender is freed and relieved of a claim which might have been a perfectly justifiable one. However, the pursuer might have, as here, an action against his solicitors for professional negligence which might or might not recoup him in whole or in part for the damages which he could no longer obtain from the defender. There are imponderables about such an alternative, and its outcome can vary from case to case. Neither of these contrasting considerations is in itself conclusive, and the weights to be applied to them respectively will again depend on the circumstances. In my opinion it is not illegitimate to have in consideration the strength of the case against the third party and the likelihood of a successful prosecution of such a case, but again that is just a factor. Another consideration (although the Sheriff Principal rejected it – wrongly in my view), even if it only carries a little weight, is the burden of the expenses the defenders have to bear even if they are successful, since the pursuer is a legally assisted person. This in a way is merely consequential on the major issue, but it is entitled to be taken into account for what it is worth.’

Judges:

Lord Justice Clerk Wheatley

Citations:

1985 SLT 51

Jurisdiction:

Scotland

Citing:

Approved – Donald v Rutherford IHCS 1984
A pedestrian was injured in a road traffic accident on 3 November 1975 but only raised an action on 13 February 1981. The failure to raise a timeous action was attributable to the fault of his former solicitors.
Held: He was allowed to proceed . .

Cited by:

Cited – David Lannigan v Glasgow City Council OHCS 12-Aug-2004
The pursuer said the teachers employed by the defendant had failed to identify that was dyslexic, leading him to suffer damage. The defenders said the claim was time barred, which the pursuer admitted, but then said that the claim ought to go ahead . .
Lists of cited by and citing cases may be incomplete.

Limitation

Updated: 05 July 2022; Ref: scu.200279