Scotland - 1997

The case shown here are derived from the lawindexpro case law database. lawindexpro is a low cost case law database, with over 260,000 case listings, and over 200,000 links to full text judgments. The free service below shows the core information on the case, but is restricted in several ways. A small proportion of cases do allow access to the full lawindexpro information. These cases are selected at random, and may be different on your next visit. The active links through to lawindexpro are extremely powerful allowing full access to all linked cases.  

This page lists 37 cases, and was prepared on 28 October 2012.

Sharp -v- Thomson 1997 SC (HL) 66
1997 HL Lord Jauncey, Lord Clyde	Scotland, Land, Banking	Casemap 1 Cites 1 Citers
	A floating charge was given over the whole of a company's property which might from time to time be "comprised in our property and undertaking". The charge terms echoed the section which allows a company to create a charge "over all or any part of the property … which may from time to time be comprised in its property and undertaking." The company had sold a flat, which was part of its property, and had delivered the relevant disposition to the purchaser. Before the purchaser's agents recorded the disposition, however, the floating charge crystallised. The question was whether, at the time of crystallisation, the company's rights to the flat still formed part of "our property and undertaking" in terms of the charge and, by implication, in terms of the section. The Court of Session had held that the rights were caught by the floating charge. Held: The purchasers' appeal was allowed on the basis that the term "property" in the section was not being used in any technical sense and was not intended to include the company's bare title to the flat which the purchasers could have defeated at any moment by recording their disposition.
	Companies Act 1985 462(1)

Elliott (No 2) -v- HM Advocate 1997 SLT 1229
1997 Lord Justice Clerk Ross	Criminal Sentencing, Scotland	Casemap
	When passing a mandatory sentence of life imprisonment a trial judge was required by section 218 of the 1975 Act to specify the date of the commencement of the sentence The question whether a mandatory life sentence should be backdated was not an academic one, because the date at which the sentence was held to have commenced might affect the date at which the Preliminary Review Committee could first consider the case of the prisoner.
	Criminal Procedure (Scotland) Act 1975

Libertas-Kommerz Gmb H re Johnson 1997 SC 191
1997	Scotland, Contract	Casemap 1 Citers
	Intimation of the assignation to the debtor can be made either by the assignor or the assignee.

M -v- M (Abduction: England and Scotland) [1997] 2 FLR 263
1997 CA Butler-Sloss LJ	Children, Jurisdiction, Scotland	Casemap 1 Citers
	A couple went to live in Scotland with their children. The father was Scottish: the mother English. The mother left the family home and took the children to England without the father's knowledge, and obtained an ex-parte residence order and a prohibited steps order to prevent the father from removing the children. She also issued a divorce petition. The Circuit Judge in England made an ex-parte injunction restraining the father from instituting proceedings in Scotland. The judge decided that England was the appropriate jurisdiction for the divorce proceedings. The father appealed. Held: The court allowed his appeal. The judge had been wrong to decide either that the children had no habitual residence or that they were habitually resident in England. The grant of an injunction was inconsistent with the legislative framework provided by the 1973 Act. Undeer Schedule 1, paragraph 8(1), if a petition was presented in that part of the United Kingdom where parties were habitually resident when they last lived together, then any earlier petition presented in a different part of the United Kingdom by the other party to the marriage had to be stayed in favour of the petition presented in the place where the parties were habitually resident. Parliament not only permitted the father to present his petition in Scotland, but expressly provided that if he did so, the mother's English proceedings should be stayed, and the English court should thereafter have no jurisdiction to make an order under Section 8 of the Children Act 1989 unless it was necessary to do so in order to deal with urgent matters.
	Domicile and Matrimonial Proceedings Act 1973

McCarvel -v- Strathclyde Fire Board 1997 SLT 1015
1997 OHCS	Scotland, Personal Injury	Casemap 1 Citers
	Tne pursuer sought damages for personal injuries. His previously asymptomatic pre-existing condition would have become symptomatic by the date of the proof. The valuation of £5,000 proceeded on the basis that the pursuer's symptoms and disabilities up to the date of the proof were attributable to the accident, but that for the future they were not so attributable.

Addison -v- Denholm Ship Management (UK) Ltd [1997] ICR 770
1997 EAT Lord Johnston	Employment, Scotland	Casemap 1 Citers
	An issue before the EAT was whether regulations made under section 2(2) of the 1972 Act applied to the crew of a floating hotel/ship in the North Sea. Held: According to European law the UK could choose whether or not to apply employment protection to this crew. The employers said that our regulations did not intend to confer employment protection upon the crew but that if, on their proper construction, our regulations did purport to do so, they would be ultra vires since this was not a Community obligation. An Act of Parliament was needed, not merely secondary legislation. Lord Johnston: "[Counsel for the crew argued that] if the issue of ultra vires or intra vires did arise then the matter was now governed by a decision of the Divisional Court, Reg. v. Secretary of State and Industry, Ex parte UNISON [1996] ICR 1003. That case was concerned with proper construction of the phrase "matters related to any Community obligation" in section 2(2)(b) of the European Communities Act 1972. In his judgment, Otton LJ held, at p. 1014, that the phrase "related to" would be given its natural, everyday meaning of not distinct, separate, or divorced from a Community obligation rather than the alternative meaning suggested by the applicants of "tangential to or consequential to" the implementation of a Community obligation. That broad construction of the phrase, said counsel, meant that, so long as there was in effect a connection between the terms under consideration of the subordinate legislation and the primary legislation which it was implementing under a Community Directive, the minister was not exceeding his powers in the main Act … " The regulations were no wider than the Directive, but "Assuming, finally, that the issue of construction which we prefer is erroneous, the matter of vires does arise. Without venturing a view as to whether Reg. v. Secretary of State for Trade and Industry, Ex parte UNISON [1996] ICR 1003 is correctly decided on its own facts, we confess considerable concern with the general approach of Otton LJ if he is seeking to suggest that "related to" in section 2(2)(b) of the European Communities Act 1978 [sc. 1972] can be used to enable a minister to widen, by regulation, the main thrust or effect of the Directive it is seeking to implement. In our opinion, as a matter of general law in relation to primary and subordinate legislation, as stated by Lord Mackay of Clashfern LC in Hayward v. Cammell Laird Shipbuilders Ltd (No. 2) [1988] ICR 464, 473, if the Directive is to be regarded as the parent, the child cannot be larger, wider or have greater implications than its parent allows. Accordingly, if the effect of regulation 2(2) of the Regulations of 1981 is to confer a lesser exclusion, and thus a wider benefit, to workers otherwise excluded by the Directive, we consider that the regulation is ultra vires the enabling power, and would require primary legislation as contemplated by article 7 of the Directive (77/187/EEC)."
	European Communities Act 1972 82(2)

Smith -v- Lees 1997 SCCR 139
1997 HCJ	Scotland, Criminal Evidence	Casemap 1 Cites 1 Citers
	Evidence of distress could not corroborate the carrying out of physical acts of indecent assault, though it can still be used to corroborate, in an appropriate case, evidence of a lack of consent on the part of the complainer to the accused's conduct and the use of force by him.

Rollo -v- HM Advocate [1997] Scots Law Times 958
1997 Lord Mulligan	Scotland, Criminal Practice	Casemap
	The court discussed the nature of a document as applied to an electronic notebook seized under the 1971 Act: "It seems to us that the essential essence of a document is that it is something containing recorded information of some sort. It does not matter if, to be meaningful, the information requires to be processed in some way such as translation, decoding or electronic retrieval".
	Misuse of Drugs Act 1971 23(3)(b)

Keppie -v- The Marshall Food Group Ltd 1997 SLT 305
1997 Lord Hamilton	Scotland, Litigation Practice	Casemap 1 Citers
	In a motion for summary decree, "The court is not concerned with forecasting the outcome of a proof."

T, Petitioner 1997 SLT 724
1997 IHCS	Scotland, Adoption	Casemap 1 Citers
	The House discussed the duties of a court in adoption cases: "There can be no more fundamental principle in adoption cases than that it is the duty of the court to safeguard and promote the interests of the child. Issues relating to the sexual orientation, lifestyle, race, religion or other characteristics of the parties involved must of course be taken into account as part of the circumstances. But they cannot be allowed to prevail over what is in the best interests of the child."

Campbell -v- Vannet 1997 SCCR 787
1997	Scotland, Police	Casemap 1 Citers
	Police officers who had just seen a serious crime (of supplying or offering to supply heroin) being committed from within premises were held to be entitled to force entry to the premises with a view to apprehending the person who was suspected of having committed the crime.

Adams -v- Adams (No 1) 1997 SLT 144
1997 Lord Gill	Scotland, Family	Casemap 1 Cites 1 Citers
	Lord Gill said: "The pursuer next relies on s 9(1)(b) (as read with s 9(2) and s 11(2). She argues that the defender has enjoyed an economic advantage in that he has been able to further his career whereas she has prejudiced hers by bringing up the children. I accept that the pursuer has suffered an economic disadvantage in this respect. On the other hand in all the years during which they lived together, the defender contributed more than the pursuer to the household finances and during the period when she was out of employment, he supported the family on his own. It is not suggested that the defender ever failed to maintain the family in a good standard of living. In my view this is a counterbalancing consideration which I am entitled by section 11 (2) to apply. The pursuer's economic disadvantage is not the worst that she could have suffered. She was able to return to her professional employment soon after the birth of each child and she has for some considerable time been in full-time pensioned employment and making her own contributions to a top up pension. I distinguish this case from a case such as Loudon v Loudon where the property was decided in the proportions 55/45 per cent in the pursuer's favour largely on the basis that the pursuer was untrained and had no pension and that there was a great disparity between her assets and those of the defender (at 1994 SLT p 385C). I distinguish this case also from McCormick v McCormick, where the wife was at a disadvantage in that it would be difficult for her to gain employment at her age in her former profession (at p 10); and from Cunniff v Cunniff where the wife who received a transfer order had not worked for over 20 years, had an earning power not remotely comparable with that of her husband and, if not given the matrimonial home, would not have been able to afford alternative accommodation (at pp12-13). I conclude therefore that in this case an unequal division in the pursuer's favour is not justified by s 9(1)(b)."

Ferguson -v- Littlewoods Pools Ltd 1997 SLT 309
1997 Lord Coulsfield	Scotland, Contract	Casemap 1 Cites 1 Citers
	The court reviewed a decision on the enforceability of gaming contracts. Held: Different considerations played a part in the development of the rules with different emphases in different cases. In some cases the ground of decision is that the parties cannot have intended that the transactions should have legal consequences. In others it was beneath the dignity of the court to enter into the question who won or lost a particular wager, and in others stress is put on the fact that such transactions do not have commercial significance, and it may be that, in some of those cases, a general disapproval of gaming or wagering can be detected.

Scottish Midland Co-operative Soc Ltd -v- Cullion [1997] IRLR 261
1997	Employment, Scotland	Casemap 1 Citers

Moss -v- Howdle [1997] ScotHC HCJ_1
31 Jan 1997 HCJ	Scotland, Crime
	Link[s] omitted

Smith -v- Governor and Company of The Bank of Scotland [1997] 2 FLR 862; 1997 SC (HL) 111; [1997] UKHL 26
6 Feb 1997 HL Lord Clyde	Banking, Scotland, Contract	Casemap 1 Cites 1 Citers
	A bank which did not warn its customer of the of risks of a loan and of the need for independent advice was bound by misrepresentations made by customer. The House referred to "the broad principle in the field of contract law of fair dealing in good faith."
	Link[s] omitted

Sanderson -v- McManus [1997] UKHL 1
6 Feb 1997 HL Lord Goff of Chieveley Lord Mustill Lord Slynn of Hadley Lord Hope of Craighead Lord Clyde	Children, Scotland	Casemap 1 Cites
	An order had been made refusing an unmarried father access to his child by the court after evidence that it would not be in the child's best interests. The father appealed. Held: The father could not appeal on a question of fact alone. There had been delay in the matter coming before the House. The Sherriff's decision was criticised as having been made on the basis of hearsay. He had not considered whether the child was old enough to be competent to give evidence, but the Sherriff Principal had excluded reliance upon the child's evidence in his own consideration. Section 3(2) of the 1995 Act gave the court a wide discretion to as to the considerations pointing one way or the other which it may take into account, subject to the need to give effect to the welfare of the child. Contrary to appearance, the order did not sever links with the child permanently. The father could make a renewed application. "The more fundamental question however is whether the natural link between the child and his parent is so important that the court must always seek to preserve it unless there are strong reasons to the contrary. " Here, the Sherrif had found that the "pursuer was thinking in terms of his own rights as the child's natural father, rather than what was best for the child. It is implicit in his criticism of the pursuer and his whole approach to the case that he understood that the point of the pursuer's application was his wish as the child's father to preserve the natural link. The issues to which the Sheriff and in his turn the Sheriff Principal directed their attention were the issues which related to the fundamental question as to whether it was in the best interests of the child that access should be allowed in order that this link should continue. " The appeal was dismissed.
	Civil Evidence (Scotland) Act 1988 2(1)(b) - Court of Session Act 1988 32(5) - Children (Scotland) Act 1995 3(2) - Law Reform (Parent and Child) (Scotland) Act 1986
	Link[s] omitted

Williamson -v- Williamson [1997] ScotCS CSIH_3
11 Feb 1997 SCS	Scotland
	Link[s] omitted

S -v- M (Minor: Access Order) (Scotland)
12 Feb 1997 HL	Children, Scotland
	A party seeking an access order has the onus to show that such contact will be in the child's best interests. There is no rule of law to say that contact will be given.
	Law Reform (Parent and Child) (Scotland) Act 1986 3(2)

Mulvey -v- Secretary of State for Social Security (Scotland) [1997] UKHL 10
20 Mar 1997 HL Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Slynn of Hadley, Lord Lloyd of Berwick	Insolvency, Benefits, Scotland	Casemap 1 Cites
	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.
	Social Security Administration Act 1992 167(3) - Social Security Contributions and Benefits Act 1992 138(1)
	Link[s] omitted

Redrow Homes Ltd -v- Bett Brothers Plc
2 May 1997 IHCS	Intellectual Property, Damages, Scotland	Casemap 1 Citers
	A pursuer in an action for breach of copyright must take either an account of profits or additional damages but not both.
	Copyright Designs and Patents Act 1988 96(2) 97

Bank of Scotland -v- Dunedin Property Investment Co Ltd 1998 SC 657
16 May 1997 OHCS	Financial Services, Contract, Scotland	Casemap 1 Cites 1 Citers
	The cost of an interest rate swap brokerage agreement was not covered by an indemnity against 'all costs charges and expenses incurred'.

Kelly -v- Kelly [1997] ScotCS CSIH_2
24 May 1997 SCS	Scotland
	[ Bailii ]

Craiglaw Developments Ltd -v- Gordon Wilson & Co 1998 SLT 1046
29 May 1997 IHCS Lord Fraser, Lord Cameron of Lochbroom, Lord Murray	Insolvency, Scotland
	The debtor had divested himself of funds pending the outcome of litigation by placing them on deposit in joint names. Held: The interim liquidator's appeal failed. Once the payment was made, the debtor was divested of the funds; he had nothing more to do to divest himself of the money. The provisions allowing a challenge to what appeared to be a preference applied to events within the period of six months prior to the winding up. The payment having been made before that period commenced it was effective.
	Insolvency Act 1984 243(2)

Bett -v- Hamilton (Aka Bett -v- Brown) [1997] ScotHC HCJ_3
23 Jul 1997 HCJ	Scotland, Crime
	Link[s] omitted

United Wire Ltd -v- Screen Repair Services (Scotland)
20 Aug 1997 ChD	Costs, Scotland
	A court may make no order for costs where defendant although successful had caused excessive costs by pursuing unsuccessful points.

Elf Caledonia Ltd -v- London Bridge Engineering Ltd and Northern Industrial and Marine Services Co Ltd and British Telecommunications Plc and Wood Group Engineering Contractors Ltd and Eastman Christensen Ltd and Kelvin International Services Ltd and Sten [1997] ScotCS 1
2 Sep 1997 SCS Lord Caplan	Scotland, Negligence	1 Cites 1 Citers
	Link[s] omitted

Clydesdale Bank plc -v- Davidson and Others (Scotland) Clydesdale Bank plc -v- Davidson and Others [1997] UKHL 55
16 Oct 1997 HL Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Lloyd of Berwick, Lord Hope of Craighead, Lord Clyde	Landlord and Tenant, Scotland, Agriculture, Contract	Casemap 1 Cites 1 Citers
	(Scotland) Joint pro indiviso proprietors of land were not able at law to create a binding lease in favour of one of their number, so as to defeat the proper claims of a third party. A person cannot enter into a contract with himself. Held: The appellant was not able to assert his rights as an agricultural tenant so as to defeat the rights of the bank as mortgagee.
	Agricultural Holdings (Scotland) Act 1991
	Link[s] omitted

Strathclyde Regional Council -v- Zafar; Zafar -v- Glasgow City Council [1997] UKHL 54; [1997] 1WLR 1659; [1997] IRLR 229 CS; [1998] ICR 120; 1998 SC (HL) 27; [1998] 2 All ER 953; 1998 SLT 135
16 Oct 1997 HL Lord Browne-Wilkinson Lord Slynn of Hadley Lord Lloyd of Berwick Lord Hope of Craighead Lord Clyde	Discrimination, Employment, Scotland	Casemap 1 Citers
	The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found to be unsupported. The tribunal reasoned that the dismissal was to be presumed to be on a racially discriminatory basis in the absence of any other sufficient explanation. Had he been less favourably treated than others, and if so was that for a discriminatory reason. Held: The conduct of a hypothetical reasonable employer is irrelevant. It is the action of this employer which is to be tested. The fact that an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee "less favourably" for the purposes of the Act of 1976 than he would have treated somebody else.
	Race Relations Act 1976 1(1) - Employment Protection (Consolidation) Act 1978 57(3)
	Link[s] omitted

City of Edinburgh Council -v- Secretary of State for Scotland and Another; Same -v- Same (Conjoined Appeals) [1997] UKHL 38; [1997] 1 WLR 1447; [1998] 1 All ER 174
31 Oct 1997 HL Lord Clyde, Lord Browne-Wilkinson, Lord Mackay of Clashfern, Lord Steyn, Lord Hope of Craighead	Planning, Scotland	1 Citers
	The Listed buildings registers are to be read consistently; the trading level is a material consideration in listed buildings consent applications. The weight to be given to a material consideration once identified was a matter of judgment for the decision maker alone. Lord Clyde said: "In the practical application of section 18A, it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the questions before him, and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in the light of the whole plan the proposal does or does not accord with it." As to the need to identify the property, he said: "the form of notice does not require a description of the building to be given. The assumption is that the name of the building will be sufficient to identify what is in the list."
	Town and Country Planning (Scotland) Act 1972 18A
	Link[s] omitted

King -v- East Ayrshire Council 1998 SC 182
3 Nov 1997 IHCS	Education, Scotland, Judicial Review	Casemap 1 Cites 1 Citers
	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.
	Education (Publication and Consultation (Scotland)) Regulations 1985 (1985 No 1558) am

Girvan -v- Inverness Farmers Dairy and Another [1997] UKHL 47; 1998 SC (HL) 1; 1998 SLT 21; 1998 SCLR 72
13 Nov 1997 HL Lord Clyde, Lord Browne-Wilkinson, Lord Mackay of Clashfern, Lord Slynn of Hadley, Lord Hope of Craighead	Personal Injury, Scotland, Litigation Practice, Damages	Casemap 1 Citers
	(Scotland) A second re-trial in order to obtain a jury assessment of damages more in line with that assessed by judges would be wrong. Lord Clyde: 'In a system in which damages may be assessed in different cases either by a jury or by a judge it is essential, not only for the profession, but also for the court both in the making of awards and in the consideration of awards which have been made, for there to be available a convenient record of awards by juries as well as by judges.' The House will always be slow to interfere with a decision of the Court of Session on matters of procedure.
	Court of Session Act 1988
	Link[s] omitted

Bilton -v- Fastnet Highlands LTd [1998] SLT 1323
20 Nov 1997 OHCS	Health and Safety, Scotland	Casemap 1 Citers
	It was for the defenders to say what steps they had been taken to comply with their obligations under the Regulations, not for an employee complainant to say what should happen.
	Control of Substances Hazardous to Health Regulations 1988 (SI 1988 No 1657)

Allied Domecq Spirits and Wine Ltd -v- Murray Mcdavid Ltd
9 Dec 1997 SCS	Intellectual Property, Scotland
	Old Trade Mark infringement cases are to be viewed only with great care; on balance of convenience, the use of trade marked place name is to be allowed.
	Trade Marks Act 1994 11(2)(b)

Alistair Mcleod -v- Her Majesty's Advocate (No 2) [1997] ScotHC 1; 1998 JC 67
19 Dec 1997 HCJ Lord Justice General	Scotland, Criminal Practice, Human Rights	Casemap 1 Cites 1 Citers
	A full court applied the guidance in Edwards -v- United Kingdom when considering the duty of the Crown to make disclosure under Scots law: "Our system of criminal procedure therefore proceeds on the basis that the Crown have a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused." The court would order the production of documents if satisfied that their production "would be likely to be of material assistance to the proper preparation or presentation of the accused's defence". The duty was to disclose information that "is significant to an indicated line of defence" or is likely to be of real importance "to any undermining of the Crown case or to any casting of reasonable doubt on it".
	Link[s] omitted

Quantum Claims Compensation Specialists Ltd -v- Powell [1997] ScotCS CSIH_4
19 Dec 1997 SCS	Scotland
	Link[s] omitted

Mcleod -v- Her Majesty's Advocate (No 2) [1997] ScotHC 2; 1998 SLT 233; 1998 GWD 4-161; 1998 JC 67; 1998 SCCR 77
19 Dec 1997 HCJ Lord Justice General Rodger	Scotland, Criminal Practice	Casemap 1 Citers
	In a criminal case, the duty of disclosure was an aspect of the role of the Crown.
	Link[s] omitted