Tag: Scotland

Card Protection Plan Ltd v Commissioners of Customs and Excise: ECJ 25 Feb 1999

A company procuring insurance purchases for credit card protection was as exempt from VAT as was the insurer. A provision which restricted the ability to claim such exemption to those registered as insurers under national was invalid under European Law: ‘it is for the national court to determine . . whether the transactions . . are to be regarded for VAT purposes as comprising two independent supplies . . or whether one of those two supplies is the principal supply to which the other is ancillary, so that it receives the same tax treatment as the principal supply.’ What matters is ‘the essential features of the transaction’. ‘There is a single supply in particular in cases where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service. A service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied . .’
As to what amounted to insurance, the court said: ‘the essentials of an insurance transaction are, as generally understood, that the insurer undertakes, in return for prior payment of a premium, to provide the insured, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded.
It is not essential that the service the insurer has undertaken to provide in the event of loss consists in the payment of a sum of money, as that service may also take the form of the provision of assistance in cash or in kind of the type listed in the annex Directive 73/239 as amended by Directive 84/641. There is no reason for the interpretation of the term ‘insurance’ to differ according to whether it appears in the Directive on insurance or in the Sixth Directive.’

Citations:

Times 18-Mar-1999, C-349/96, [1999] STC 270, [1999] 2 AC 601, [1998] EUECJ C-349/96 – O

Links:

Bailii

Statutes:

Directive 73/239

Citing:

Referred back – Card Protection Plan Ltd v Commissioners of Customs and Excise HL 6-Feb-2001
The appellants sold a system protecting credit card holders against the consequences of loss or theft. They claimed that it was insurance and exempt from VAT. The commissioners said it was a service and vatable. The card provided a range of services . .
Cited – Commissioners of Customs and Excise v Madgett and Baldwin (trading as Howden Court Hotel) ECJ 22-Oct-1998
The court considered the criteria for determining whether the provision to guests by a hotelier of travel services (and in particular transport to and from the hotel and excursions) constituted supply which was ancillary to the supply of . .
Cited – Faaborg-Gelting Linien v Finanzamt Flensburg ECJ 2-May-1996
A non-takeaway restaurant is a supply of services, and a ferry supply was made from its place of business. The supply of prepared food and drink at a restaurant resulted from a whole series of services (including the preparation and service of the . .

Cited by:

Referred back – Card Protection Plan Ltd v Commissioners of Customs and Excise HL 6-Feb-2001
The appellants sold a system protecting credit card holders against the consequences of loss or theft. They claimed that it was insurance and exempt from VAT. The commissioners said it was a service and vatable. The card provided a range of services . .
Cited – Commissioners of Customs and Excise v Century Life Plc CA 19-Dec-2000
The Directive required member states to exempt from VAT, services involving the provision of insurance, and for intermediaries. Following the Regulator’s involvement, the principal company had to arrange for the checking of existing policies, and . .
Cited – College of Estate Management v Commissioners of Customs and Excise ChD 13-Nov-2003
The college appealed a finding that the supply of course manuals to its students was part of its exempt rather than zero-rated supply.
Held: ‘Once it is decided that there is a single supply from an economic view which should not be . .
Cited – Commissioners for Customs and Excise v Southern Primary Housing Limited CA 18-Nov-2003
The land owner had elected to pay VAT on the purchase of land. It sought to recover that VAT. The Commissioners appealed an order allowing that.
Held: Ther were three transactions, the purchase, the sale, and a development contract. The input . .
Cited – College of Estate Management v Commissioners of Customs and Excise CA 11-Aug-2004
When offering courses to distance learning students, the College offered materials for the courses. As part of the course this supply would be exempt, as books, the supply would be zero-rated, but the taxpayer would be able to reclaim its VAT . .
Cited – Beynon and Partners v Customs and Excise HL 25-Nov-2004
The House asked whether the personal administration of a drug such as a vaccine by an NHS doctor to a patient is a taxable supply for the purposes of value added tax. The provision of medical care in the exercise of the medical and paramedical . .
Cited – HM Revenue and Customs v Weight Watchers (UK) Ltd ChD 21-Jan-2008
The court was asked whether the weight-watchers program which included attendance at a course and a supply of supporting materials was one single standard-rated supply or separate supplies of zero-rated printed materials and standard-rated support . .
Cited – Re Digital Satellite Warranty Cover Ltd and Others ChD 31-Jan-2011
The Financial Services Authority sought public interest orders for the winding up of three companies selling, it said, extended warranty cover plans without authorisation. The companies said that authorisation was not required, since only services . .
Cited – Digital Satellite Warranty Cover Ltd v The Financial Services Authority CA 29-Nov-2011
Parties appealed against on order for the winding up of the company. The Authority (FSA) had said that the company which supplied warranties to owners of digital receiver boxes were providing regulated insurance services, but that the companies were . .
Cited – Baxendale Ltd and Another v Revenue and Customs FTTTx 4-Jul-2013
FTTTx PROCEDURE – striking out of proceedings – whether appellants’ case had a reasonable prospect of succeeding – abuse of process – whether Court of Appeal decision in David Baxendale was per incuriam or . .
Lists of cited by and citing cases may be incomplete.

European, Scotland, VAT, Insurance

Updated: 03 June 2022; Ref: scu.161975

Volkert Hendricks, Late Master of The Ship Katherine of Amsterdam, and Peter Willem Van Lankern of Amsterdam, Merchant, and The Owners of The Said Ship Katherine and Her Cargo v Wm Cunningham, Merchant, Glasgow: HL 2 Jul 1783

Paton Capture – Jurisdiction.- Circumstances in which held that a Dutch vessel, while coming from a French colony, with the produce of that island to Amsterdam, was held to have been illegally captured as a neutral, neither the vessel nor the cargo, nor her papers, shewing that she was an adopted French vessel. Opinion indicated, though the objection to the competency was waived, that the Admiralty Court of Scotland had no jurisdiction to try such a question, but that it belonged to the High Admiralty Court of England.

Citations:

[1783] UKHL 2 – Paton – 609, (1783) 2 Paton 609

Links:

Bailii

Jurisdiction:

Scotland

Transport

Updated: 29 May 2022; Ref: scu.562106

Stiell Ltd v Riema Control Systems Ltd: IHCS 28 Jun 2000

Contractors had been called upon to carry out work beyond that originally requested, and sought payment, and had arrested a payment in the hands of a third party. Before raising the action they had referred the matter to adjudication under the Act.
Held: The fact of the reference did not change the fact of the claim, and the effect of the arbitrator’s decision in rejecting the claim was not like that of a certifying engineer or architect.

Citations:

Times 28-Jun-2000

Statutes:

Housing Grants Construction and Regeneration Act 1996

Jurisdiction:

Scotland

Arbitration, Construction, Scotland

Updated: 20 May 2022; Ref: scu.89556

Dormer v Melville Dundas and Whitson Ltd: 1990

Citations:

1990 SLT 18

Jurisdiction:

Scotland

Cited by:

Cited – Farstad Supply As v Enviroco Ltd and Another SCS 23-Apr-2008
(Outer House) The pursuers alleged that the defendant service company was responsible in negligence for damage by fire to its oil rig supply vessel. It was said that oil they had failed to clear was released by piping when opened flowing onto a hot . .
Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 20 May 2022; Ref: scu.410555

Mulvey v Secretary of State for Social Security: HL 20 Mar 1997

The appellant had had repayable awards from the social fund and also income support benefit. Deductions were made from the benefit to repay the awards. Her estate was sequestrated. She argued that the awards should no longer be deducted.
Held: Deductions by way of recoupment for overpayments of benefit were correctly continued after bankruptcy.
Lord Jauncey said: ‘By no stretch of the imagination could the respondent’s exercise of his statutory right be described as diligence for the purpose of the law of Scotland’.
The rule at common law rule was also disapplied: ‘The deductions made by the respondent were not, as in the normal case of compensation in bankruptcy, a result of the bankruptcy, but were made in pursuance of a statutory scheme which was already in operation at the time of sequestration and with which the permanent trustee can have no concern. Prior to sequestration, the appellant had no right to receive by way of income support benefit more than her gross entitlement under deduction of such sum as had been notified to her by the respondent prior to payment of the award by the respondent. This was the result of the statutory scheme and she could not have demanded more.’

Judges:

Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Slynn of Hadley, Lord Lloyd of Berwick

Citations:

[1997] UKHL 10, 1997 SC (HL) 105

Links:

House of Lords, Bailii

Statutes:

Social Security Administration Act 1992 167(3), Social Security Contributions and Benefits Act 1992 138(1)

Citing:

Cited – Fraser v Robertson 1881
A creditor in an obligation undertaken by a debtor prior to sequestration must, after sequestration, enforce that obligation against the estate vested in the trustee and can only seek a decree of constitution there anent against the debtor . .
Cited – Macdonald’s Trustee v Macdonald 1938
So much income received by a debtor as exceeds his needs, as determined by the Sheriff, may require to be paid to the permanent trustee. The 1921 Act did not override . .
Cited – Bradley-Hole v Cusen CA 1953
The creditor was a tenant of rent-controlled premises who had been charged too much rent by his landlord. The bankrupt landlord’s trustee argued that the claim in respect of overpaid rent had been converted into a right to prove the debt in the . .
Appeal from – Mulvey v Secretary of State for Social Security IHCS 24-Nov-1995
The claimant had first been granted a loan from the Social Fund. After her bankruptcy, the benefits loan was recoverable from benefits even after the bankruptcy if the loan was not proved in the bankruptcy. The right to recover by deduction was but . .

Cited by:

Cited – Secretary of State for Work and Pensions v Payne and Another SC 14-Dec-2011
The appellant sought to recover overpayments of benefits and Social Fund Loans, after the respondent had had a Debt relief order.
Held: The Secretary of State’s appeal failed. The ‘net entitlement principle’ argued for did not exist. The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Benefits, Scotland

Updated: 19 May 2022; Ref: scu.84121

K (A Patient) v Craig: HL 3 Dec 1998

(Scotland) A move to supervised community care by a detained patient first requires a finding by a psychiatrist that detention is no longer necessary, but a report to that effect is not sufficient to allow requirement to release as such.

Judges:

Slynn, Lloyd, Hoffmann, Hope, Hutton LL

Citations:

Times 07-Dec-1998, [1998] UKHL 54, 1999 SCLR 67, 1999 SLT 219, 1998 GWD 40-2074, 1999 SC (HL) 1

Links:

Bailii

Statutes:

Mental Health (Scotland) Act 1984 Part V

Health, Scotland

Updated: 19 May 2022; Ref: scu.82652

Fraser v Mirza: HL 29 Mar 1993

A complaint made against a police officer may be libellous if it was made with an improper motive: ‘The motive with which a person made a defamatory communication can only be ascertained from an examination of his state of mind at the time he made it, which, as Lord Diplock said, can only be inferred from what he did or said or knew . . In the circumstances I am of the opinion that the respondent’s intentions in respect of what he was trying to convey by the letter are properly to be taken into account for the purpose of ascertaining what was the dominant motive operating on his mind at the time he wrote it . . Absent of belief in the truth of a defamatory allegation actually conveyed is, as Lord Diplock said [in Horrocks v Lowe], usually conclusive evidence of improper motive amounting to express malice. There is no valid reason for not holding that the same inference is necessarily to be drawn where the maker of the communication is proved to have intended by it to convey a defamatory allegation in the truth of which he did not believe, but which on a proper construction of the communication it is found not to bear.’

Judges:

Lord Keith of Kinkel

Citations:

Ind Summary 29-Mar-1993, [1993] SC (HL) 27, [1993] UKHL 14, 1993 SLT 527

Links:

Bailii

Citing:

Cited – Horrocks v Lowe HL 1974
The plaintiff complained of an alleged slander spoken at a meeting of the Town Council. The council meeting was an occasion attracting qualified privilege. The judge at trial found that the councillor honestly believed that what he had said in the . .
Lists of cited by and citing cases may be incomplete.

Defamation, Police, Scotland

Updated: 19 May 2022; Ref: scu.80667

Elliott (Angus Gordon) v HM Advocate: HCJ 24 Mar 1995

New evidence on an appeal was admissible only in accordance with the Act.

Judges:

Lord Justice Clerk Ross

Citations:

Times 16-May-1995, 1995 JC 95, [1995] ScotHC HCJ – 2, 1995 SLT 612, 1995 SCCR 280

Links:

Bailii

Statutes:

Criminal Procedure (Scotland) Act 228(2)

Cited by:

Cited – Fraser v Her Majesty’s Advocate SC 25-May-2011
The defendant appealed against his conviction for murder, saying that the prosecution had failed to disclose certain matters.
Held: The appeal succeeded, the conviction was quashed and the case remitted to the Scottish courts to consider . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Scotland

Updated: 19 May 2022; Ref: scu.80299

Drummond and Co v Lamb and Others; Drummond and Co, WS v Scottish Legal Aid Board: HL 29 Apr 1992

The cost of excess work carried out under the green form scheme, was not recoverable despite the LAB’s subsequent approval of the action.

Citations:

Gazette 29-Apr-1992, [1992] UKHL 13, 1992 SC (HL) 1, [1992] 1 WLR 163, 1992 SLT 337

Links:

Bailii

Statutes:

Legal Aid (Scotland) Act 1986 10

Jurisdiction:

Scotland

Legal Aid

Updated: 19 May 2022; Ref: scu.80137

Discovery Communications Inc v Discovery Fm Ltd: IHCS 25 Jan 2000

It was no defence to an action for trade mark infringement to assert that although the registration covered activities of the type undertaken, the claimant did not actually provide services of that precise type. It is in the nature of such registrations that they reserve to the mark holder the right to develop his activities within the registration class.

Citations:

Times 25-Jan-2000

Statutes:

Trade Marks Act 1994 10

Intellectual Property, Scotland

Updated: 19 May 2022; Ref: scu.80063

Crummock (Scotland) Ltd v Hm Advocate: HCJ 9 May 2000

A company was charged with causing a contamination of the water over a large area, and the jury was drawn from that same area, and therefore might contain members who had drunk the water alleged to have been contaminated. The issues surrounding the impartiality of a jury were different from those about a judge. They were selected at random from a wide area. It was fallacious to view them as potential complainants.

Citations:

Times 09-May-2000

Statutes:

European Convention on Human Rights

Criminal Practice, Human Rights, Scotland

Updated: 19 May 2022; Ref: scu.79701

Burke v Royal Infirmary of Edinburgh National Health Service Trust: OHCS 8 Jun 1998

A 26 year old man who had no pre-existing condition sustained damage to his lumbar spine in a fall. He suffered from constant lumbar pain and also sudden shooting pains through his left buttock and thigh to his knee. He developed an abnormal pain disorder, and was forced to retire from work on medical grounds about nine months after his accident.
Held: Where an accident victim had a pre-disposition to suffer pain and inability to work despite absence of actual physical cause, the psychological damage was claimable in damages.

Citations:

Times 08-Jun-1998, 1999 SLT 539

Cited by:

Cited – Iseabal Emslie v Anne Bell OHCS 12-Aug-2004
The defender had driven into the back of the pursuer’s car, causing the injuries. She claimed that the accident had aggravated a pre-existing slight injury to her knee.
Held: The pursuer’s accounts of her injuries had not been entirely . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Scotland, Damages

Updated: 19 May 2022; Ref: scu.78751

Brooks v Civil Aviation Authority and Another: IHCS 28 Jul 2000

When the Pensions Ombudsman carried out an investigation under the Act, he was entitled to act on the information already gathered, and had no obligation to undertake a new factual enquiry. The issues in this case had been litigated repeatedly, and the ombudsman had a wide discretion as to the conduct of his investigation of the complaint, and in this case his decision could not be faulted.

Citations:

Times 28-Jul-2000

Financial Services, Administrative, Scotland

Updated: 18 May 2022; Ref: scu.78678

Bowers v Kennedy: IHCS 28 Jun 2000

A landowner who had no alternative means of access to his land could not lose a right of way to it by a failure to use it. It was not a right of servitude, but rather an incident of the rights inherent as owner. The inapplicability of periods and rules of limitation in such cases was well established.

Citations:

Times 27-Jul-2000, [2000] ScotCS 178, [2000] ScotCS 179

Links:

Bailii, Bailii

Land, Limitation, Scotland

Updated: 18 May 2022; Ref: scu.78518

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 not for general use was not determinative. The exercise by the Lord Advocate after discussion with the US government of his discretion to allow such transmission, had not been demonstrated to give rise to a devolution issue.

Citations:

Times 13-Jun-2000

Statutes:

European Convention on Human Rights

Citing:

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

Media, Human Rights, Scotland

Updated: 18 May 2022; Ref: scu.78301