Tag: Scotland

Miller v Council of the Law Society of Scotland: OHCS 22 Mar 2000

A person appointed by the court to act as reporter to the court exercised a statutory function. He had trained and qualified as a solicitor, but then had his name removed from the roll. He used his legal skills in his practice and it was asserted that he was acting as a solicitor. Although there are elements of practice, the matter was not decided by what he did whilst carrying out his job, but his status. Reporters did not necessarily have legal qualifications and there was no necessary inference that he was so acting.

Citations:

Times 22-Mar-2000

Statutes:

Solicitors (Scotland) Act 1980

Legal Professions, Scotland

Updated: 09 April 2022; Ref: scu.83724

Mercedes Benz Finance Ltd v Clydesdale: OHCS 16 Sep 1996

The creditor finance company complained that the customer had paid money into its account with the bank, in order to discharge its obligations by direct debit payments, but that the bank had refused to make the payments. The claimant argued that the direct debit mandate was a mandate in rem suam, and was not dependant upon a credit balance to be maintained.
Held: The respective rights as between a banker and his customer are not affected by direct debit instructions. The instruction to pay remained that of the account holder. The creditor was in the same position as was the payee on a cheque, namely that it was a prerequisitie of an assignative effect that the account should crry sufficient funds. Though there were no relevant averments of trust or of a fiduciary relationship, the bank’s knowledgeof the specific reason for the lodgment of the funds to meet a specific obligation might be enough to require proof to be heard on the claim for unjust enrichment.

Judges:

Lord Penrose

Citations:

Times 16-Sep-1996, 1996 SCLR 1005

Citing:

Cited – British Motor Trade Association v Gray 1951
The test for an allegation of wrongful interference in a contract required something more than a failure to act. . .
Cited – Sutherland v Royal Bank of Scotland 1996
. .
Cited – Clark Taylor and Company v Quality Site Development (Edinburgh) Limited 1981
It was claimed that a trust had come into being in circumstances where the alleged truster and the alleged trustee were the same person.
Held: It was competent for the claimant to be both truster and trustee. . .
Lists of cited by and citing cases may be incomplete.

Banking, Scotland

Updated: 09 April 2022; Ref: scu.83646

McAllister v General Medical Council: PC 3 Feb 1993

English law had been correctly applied in GMC disciplinary proceedings even though they were heard in Scotland.

Citations:

Gazette 03-Feb-1993, [1993] AC 388

Cited by:

Cited – Sadler v The General Medical Council PC 15-Jul-2003
(The Committee on Professional Performance of the GMC) The distinction drawn in Krippendorf between a practitioner’s current competence and past performance was not to be taken too far. The purpose of the assessment was not to punish the . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Scotland

Updated: 09 April 2022; Ref: scu.83490

Mcintosh v HM Advocate: HCJ 31 Oct 2000

An application for a confiscation order following a drugs trial, was subject to the requirement of a presumption of innocence. The assumptions required of a court under the Act as to the source of assets acquired by the convicted person violated that presumption of innocence. The section required nothing of the Crown to even suggest any justified grounds of suspicion. The absence of any charge or similar procedure would make it even more necessary to provide the person subject to the application with the right to a fair trial.

Citations:

Times 31-Oct-2000, [2000] DRA 12

Statutes:

Proceeds of Crime (Scotland) Act 1995, European Convention on Human Rights Art 6.1

Citing:

Appealed to – Her Majesty’s Advocate and Another v Mcintosh PC 5-Feb-2001
(From High Court of Justiciary (Scotland)) The defendant had been convicted of drug trafficking. He complained that the following confiscation order had infringed his human rights being based an assumption of guilt and which was incompatible with . .

Cited by:

Appeal from – Her Majesty’s Advocate and Another v Mcintosh PC 5-Feb-2001
(From High Court of Justiciary (Scotland)) The defendant had been convicted of drug trafficking. He complained that the following confiscation order had infringed his human rights being based an assumption of guilt and which was incompatible with . .
Cited – In re Norris, Application by Norris HL 28-Jun-2001
The applicant’s husband had been made the subject of a drugs confiscation order. Part of this was an order against the house. She had failed in asserting that the house was hers. Her appeal to a civil court had been disallowed as an abuse. It was . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Human Rights, Scotland

Updated: 09 April 2022; Ref: scu.83548

Mains v Uniroyal Englebert Tyres Ltd: IHCS 29 Sep 1995

An employer’s duties to provide a safe workplace exists despite the lack of forseeability of any accident of the type which occurred.

Citations:

Times 29-Sep-1995, [1995] SC 518

Statutes:

Factories Act 1961 29(1)

Cited by:

Cited – Baker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .
Lists of cited by and citing cases may be incomplete.

Health and Safety, Scotland

Updated: 09 April 2022; Ref: scu.83328

Landcatch Ltd v The Braer Corporation and Others: OHCS 6 Mar 1998

The pursuers reared salmon eggs to the age of two years (smolt), before then selling them on. The defenders caused an oil spill, and the area was designated as an exclusion zone preventing the pursuers continuing their trade and could not sell their smolt save at a much reduced price or not at all.
Held: The liability for damages flowing from an oil spill at sea were limited. These damages were only relational economic loss occurring in the area of the spill.

Judges:

Lord Gill

Citations:

Times 06-Mar-1998, [1998] 2 Lloyd’s LR 552

Statutes:

Merchant Shipping (Oil Pollution) Act 1971

Cited by:

Appeal from – Landcatch Limited v The Braer Corporation and Williams and Jones and Hudner and Assurance Foreningen Skuld and the International Oil Pollution Compensation Fund IHCS 19-May-1999
The pursuers raised freshwater salmon (smolt) to the age of two before selling them on. An oil spill prevented them trading. They appealed a refusal of damages on the baiss that this was pure relational economic loss.
Held: The appeal failed. . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Lists of cited by and citing cases may be incomplete.

Environment, Scotland

Updated: 09 April 2022; Ref: scu.82941

King and Others v Eaton Ltd: IHCS 1 Feb 1995

The applicants were four of 20 employees selected for redundancy. One complaint was that, although they had been given details of their own marks, they were no allowed to see the ratings for others; another was that the supervisors responsible for the markings were insufficiently informed to make fair assessments. These complaints were upheld by the Industrial Tribunal, which was also critical of the fact that the member of senior management called to justify the assessment results was unable to speak of the detailed merits of the assessments made of the applicants by the supervisors who had marked their forms. The employer appealed.
Held: The appeal was allowed. Nothing suggested that the assessment process was carried out otherwise than honestly and reasonably: ‘In fact it appears to us that what the employers did in this case was to set up a good system of selection, reasonably administered. It may very well have been possible to argue about the individual markings of individual employees, but that is a comment which applies as much to the marking of those who were not selected for redundancy as to that of those who were. If the view taken by the Industrial Tribunal were carried to its logical conclusion, there could be no alternative but to require the employer, in every such case, to produce all the evidence bearing upon all the assessments out of which the redundancy decision arose. That seems to us to go far further than is proper.’ A consultation on a selection for redundancy is not complete if the selection criteria are not disclosed.

Citations:

Times 01-Feb-1995, [1995] IRLR 75

Statutes:

Employment Protection (Consolidation) Act 1978 57(3)

Cited by:

Cited – Alexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .
Cited – British Aerospace plc v Green and Others CA 18-Apr-1995
The employer was to make 530 members of its staff redundant. Each staff member was assessed and scored. The claimants said that the method of selection was unfair, and sought disclosure of the scores of all employees.
Held: It was wrong to . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland

Updated: 09 April 2022; Ref: scu.82782

King v East Ayrshire Council: IHCS 3 Nov 1997

An application for the closure of a school need not be based upon an assessment of school’s pupil capacity as at time of assessment. The court may exercise its discretion to refuse judicial review where that is appropriate, having regard to the public interest in public authorities and third parties not being kept in suspense as to the legal validity of a decision for any longer than is absolutely necessary in fairness to the person affected by it.

Citations:

Times 03-Nov-1997, 1998 SC 182

Statutes:

Education (Publication and Consultation (Scotland)) Regulations 1985 (1985 No 1558) am

Citing:

Applied – O’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .

Cited by:

Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Lists of cited by and citing cases may be incomplete.

Education, Scotland, Judicial Review

Updated: 09 April 2022; Ref: scu.82784

Kerr, Petitioner: HCJ 4 Jul 2000

It was appropriate for the court to prepare and rely upon notes prepared from its own records. The appellant had sought to argue that there had be an undue delay in the progress of his case. The court had, before the hearing prepared a schedule from its own records of the hearings. It was for the defendant asserting delay to prepare and present his own version of events. If that had conflicted with the court record, that could have been dealt with.

Citations:

Times 04-Jul-2000

Criminal Practice, Scotland

Updated: 09 April 2022; Ref: scu.82750

Finegan v Heywood: HCJ 10 May 2000

Parasomnia which resulted in the defendant driving his car after consuming an excess of alcohol but without being aware of his actions in so doing, did not amount to the defence of automatism, where he had previously suffered similar incidents after drinking.

Citations:

Times 10-May-2000

Crime, Scotland

Updated: 08 April 2022; Ref: scu.80545

Reid v Coyle: SCS 12 May 1892

Citations:

[1892] SLR 29 – 638

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

See Also – Reid v Coyle SCS 24-Dec-1893
In an action of damages by a midwife against a medical practitioner the jury returned a verdict for the pursuer on the first and fourth issues, which were in these terms (1) ‘Whether on 15th October 1891 . . the defender falsely and calumniously . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 06 April 2022; Ref: scu.613511

Reid v Coyle: SCS 24 Dec 1893

In an action of damages by a midwife against a medical practitioner the jury returned a verdict for the pursuer on the first and fourth issues, which were in these terms (1) ‘Whether on 15th October 1891 . . the defender falsely and calumniously stated to Stephen Moore that the pursuer had poisoned his wife Mrs Agnes Moore’ . . (4) ‘Whether on 20th October 1891 . . the defender falsely, calumniously, and maliciously, and without probable cause, stated to Archibald Mackenzie, detective-officer, that Mrs Moore, wife of Stephen Moore, had been poisoned by a drug given to her by the pursuer which had caused her death.’ . . The Judge directed the jury that the statements contained in the first issue were privileged, and that malice must be proved, and no objection was made by the pursuer.
The only evidence of malice adduced by the pursuer as affecting either the first or the fourth issue was the evidence of Mackenzie, who proved that the statements made to him were not volunteered by the defender, but were used in the course of the defender’s replies to Mackenzie’s inquiries made officially by him.
Held: that the verdict was unsupported by evidence, and a new trial granted.
Observations by Lord Trayner as to the limits within which the existence of malice at an earlier date may be inferred from proof of malice at a later date.

Judges:

Lord Trayner

Citations:

[1893] SLR 30 – 335

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Reid v Coyle SCS 12-May-1892
. .
Lists of cited by and citing cases may be incomplete.

Defamation

Updated: 06 April 2022; Ref: scu.613420

The King v Robert Lumisden of Mather: SCS 28 Nov 1533

Gif ony officiar or serjand commandit and send be ony persoun or judge havand powar thairto, arreistis cornis pertening to ony man for ony cause, and efter he has lauchfullie arreistit the samin scheiris, winnis, leidis, and stakkis the samin cornis upon the ground quhair thay grew, he doand the samin is understuid to mak lauchful intimatioun thairby to the awner of the saidis cornis, that he may not thairefter alledge or pretend justlie ony ignorance of the making of the said arreistment.

Citations:

[1533] Mor 685

Links:

Bailii

Jurisdiction:

Scotland

Scotland

Updated: 05 April 2022; Ref: scu.543976

The Sailing Ship ‘Blairmore’ Co, Ltd v Macredie: SCS 4 Jun 1897

Citations:

[1897] SLR 34 – 678

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Appeal from – Sailing Ship ‘ Blairmore ‘ Company v Macredie HL 11-Jul-1898
The ‘BLAIRMORE’ was sunk by a storm while moored in San Franscisco Bay and abandoned to the insurers by her owner. The assured pleaded that the cost of raising and repairing the ship was such as to make her a constructive total loss at the time of . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 04 April 2022; Ref: scu.612475

Docherty and Others v The Secretary of State for Business, Innovation and Skills: SCS 21 Mar 2018

The House was asked: ‘Where a man, while working in Scotland, inhales asbestos fibres that cause injury to his body after he has become resident in England, which law is applicable to determine the admissibility of claims for damages made by his executors and relatives after his death?’

Citations:

[2018] ScotCS CSOH – 25

Links:

Bailii

Jurisdiction:

Scotland

Personal Injury, Jurisdiction

Updated: 01 April 2022; Ref: scu.609346