Latest Cases

Commercial contract – Construction – Exclusion clause. Court of Session: In a dispute between the owner and the occupier of a multi-storey car park concerning liability for repairs, in which the owner argued that on the occupier's receipt of collateral warranties and the issue of a defects certificate it had no further liability, but the occupier objected that there had been no final inspection and it had not received the defects certificate, the court construed the agreement entered into before the construction of the car park as meaning that the parties had to comply with the contractual scheme: absent that condition being fulfilled there could be no valid defects certificate and no exclusion of the owner's liability. 

Sentencing – Road traffic offences – Causing death by dangerous driving. High Court of Justiciary: Refusing a Crown appeal against the 4-year sentence of imprisonment, discounted from 6 years, which was imposed on a respondent who pled guilty to an offence of causing death by dangerous driving, the contention being that the sentence was unduly lenient, the court concluded that the judge's selection of a headline sentence of 6 years' imprisonment could not be said to fall outwith the range of disposals open to him, nor had he erred in selecting the level of discount which he did. 

Sentence – Aggravating features. The Court of Appeal, Criminal Division, provided guidance as to the proper sentencing approach and practice for considering the aggravating feature of prevalence. In applying that test, it had not been satisfactory to have taken account of prevalence in respect of the defendant's four drug convictions. Accordingly, the defendant's total sentence of four years and ten month's detention in a Young Offenders Institution would be reduced to four years. 

Town and country planning – Permission for development. The Planning Court dismissed the claimants' application for judicial review of the defendant local authority's grant of planning permission to the first interested party for a three-turbine electricity generation facility. None of the claimants' five grounds of challenge had been made out. 

Town and country planning – Enforcement notice. The Administrative Court allowed the appellant local authority's appeal by way of case stated against the second respondent magistrates' court's acquittal of the first respondent of two offences of breaching an enforcement notice issued by the appellant local authority against the change of use of a property to two self-contained flats without planning permission. 

Town and country planning – Established use. The Planning Court dismissed the claimant's application for judicial review of the defendant local planning authority's decisions to grant a certificate of lawfulness in respect of operational development and to refuse to take enforcement action. Consideration had been given to use, although it had not been required, and the authority's decision not to take enforcement action pending further applications had been a lawful and legitimate exercise of its discretion. 

European Union – Jurisdiction. The Court of Justice of the European Union made a preliminary ruling, deciding, among other things, that art 6(1) of Council Regulation (EC) No 44/2001 should be interpreted as meaning that where two actions — which had different subject-matters and bases and which were not connected by a link of subordination or incompatibility — were brought against several defendants, the fact that the upholding of one of those actions was potentially capable of affecting the extent of the right whose protection was sought by the other action did not suffice to give rise to a risk of irreconcilable judgments within the meaning of that provision. 

Negligence – Causation. The Queen's Bench Division, in a clinical negligence case brought by the claimant by her mother as litigation friend, held that there had been no negligence in the performance of a correctional operation preformed on the claimant which left her with damage to the cauda equina with consequent lower paralysis. 

Jury – Verdict. The Court of Appeal, Criminal Division, provided guidance as to the proper approach where it was contended that the verdicts of the jury had been inconsistent. It was held that the law ought to return to and apply the clear test set out in R v Stone ((13 December 1954, unreported)), as formally adopted in R v Durante ([1972] 3 All ER 1056). Applying that test, the defendants' convictions had not been unsafe. 

European Union – Value added tax. The Court of Justice of the European Union gave a preliminary ruling deciding, among other things, that art 11A(1)(b) of Sixth Council Directive (EEC) 77/388 should be interpreted as meaning that the value of a right in rem granting its holder a right of use over immovable property and the cost of completing an office building built on the land in question could be included in the taxable amount of a supply, within the meaning of art 5(7)(a) of the Sixth Directive, where the taxable person had already paid VAT on that value and on that cost, but had also deducted the VAT immediately and in full.