Latest Cases

Freedom of information – Decision of Scottish Information Commissioner (SIC) – Appeal on point of law. Court of Session: Refusing an appeal by a prisoner against a decision of the SIC concerning requests for information he made to Strathclyde Police under the Freedom of Information (Scotland) Act 2002 and a review of the response to that request by the Police Investigations and Review Commissioner, the court considered the meaning of the expression 'appeal on a point of law' found in s 56 of the 2002 Act and examined certain important features of the function performed by the SIC, before rejecting all of the arguments the appellant advanced, including contentions that the SIC had failed to give adequate or intelligible reasons for her conclusions. 

Civil procedure – Personal injury – Expenses. Sheriff Court: In a personal injuries action involving a child which had settled and which called before the court on the pursuer's opposed motion to certify the cause as suitable for the employment of junior counsel (one of the first hearings in the All Scotland Personal Injury Court where the court had had to consider s 108 of the Courts Reform (Scotland) Act 2014 in the context of an opposed motion), the court, applying the new test under s 108, concluded that in all the circumstances of the case it was reasonable to sanction the employment of counsel for all the work he was instructed to do, at the time he was instructed to do it. 

Husband and wife – Divorce – Financial provision. Court of Session: In divorce proceedings in which the wife sought a capital sum of £800,000, periodical allowance of £2,750 per month for an extended period, and an order for sale of the former matrimonial home on divorce, the court rejected the wife's motion for sale of the matrimonial home and ordered the transfer of her one-half share to the husband; held that the husband had established that there were special circumstances justifying a departure from the presumption of equal sharing of matrimonial property, but the wife had not; found that the capital sum payable to her was £189,298.25; and ordered periodical allowance for two years (£2,000 per month for one year and £1,500 per month for a further year) but not for the very extended period the wife sought. 

Personal injury – Pleural plaques – Final award – Quantum. Court of Session: In a action in which the pursuer, who developed pleural plaques as a result of negligent exposure to asbestos during his employment by the Ministry of Defence, sought a sum in full and final settlement of his claim for damages, the court concluded that the correct approach to the assessment of damages was to take the approximate full value for each of the two conditions, mesothelioma and lung cancer, which the pursuer had an increased risk of developing, and apply the appropriate percentage risk to the full value of each condition; an appropriate award for provisional damages would have been £7,500; and onto that sum should be added 5.2% of £66,000 (the agreed full value for in respect of both conditions), ie £3,432. 

Adult incapacity – Guardianship order – Entitlement to bring application for guardianship order – Meaning of 'person claiming an interest'. Sheriff Court: In an application under the Adults with Incapacity (Scotland) Act 2000 in which the pursuer, a solicitor, sought the appointment of a financial guardian to an 87-year-old adult, contending that she was a 'person claiming an interest', the court held that 'interest' in relation to the property and financial affairs of an adult must denote some form of patrimonial interest, the interest the pursuer claimed was not a sufficient interest such as to entitle her to bring the application, and she was not, in terms of the 2000 Act, a person claiming an interest: the court therefore refused to warrant the application. 

Negligence – Duty of care – Roads authority. Court of Session: In an action in which the pursuer, who suffered injury when he was thrown from his bicycle as he cycled over a bridge, contended that the accident was caused by the presence of metal strips set into the road surface, the court held that the defenders were in breach of the common law duties they owed to the pursuer: the metal strips posed a hazard to road users; the pursuer was riding with due skill and care; and the hazard posed by the road at the bridge would have been apparent to a roads authority of ordinary competence using reasonable care, which would have taken steps to correct it. 

Town and country planning – Grant of planning permission – New school. Court of Session: Allowing a reclaiming motion in judicial review proceedings challenging the grant of planning permission in principle for a new secondary school in the green belt and on prime agricultural land, contrary to the terms of the development plan, the court held that the planning authority had adopted an erroneous approach and was diverted from the planning judgment it required to carry out if properly exercising its jurisdiction: the full council was effectively told that it should ignore the issue of whether the green belt could be protected by using an urban site, because the applicant, the education authority, had already considered the matter and its decision was determinative. 

Legal aid – Entitlement. The Administrative Court dismissed the application of the claimant, a 17-year-old with borderline intellectual disability and mental health problems, for judicial review of the defendant Director of Legal Aid Casework's decision to refuse her exceptional case funding for legal representation at an inquest in which she was an interested person. As the claimant had no right under the European Convention on Human Rights to be provided with free legal assistance, the Director had no power to make an exceptional case determination. 

Civil procedure – Decree in foro – Reduction of decree. Court of Session: Dismissing an action in which the pursuer, who sought reduction of two sheriff court decrees his ex-wife held against him, alleged that his ex-wife made a false statement in minute proceedings in the sheriff court and would never have obtained decree against him if the sheriff had known of the misrepresentation, the court concluded that since all that was argued before the sheriff was whether the minute was competent and the sheriff found it to be incompetent, whether the wife was dishonest was irrelevant because that had never been investigated and could having nothing to do with competency. 

Proceeds of crime – Prohibitory Property Order (PPO) – Recall – Meaning of 'good arguable case': Court of Session: Allowing a reclaiming motion against an Outer House judge's decision to recall two PPOs covering heritable and moveable property belonging to the respondent, the court held that the judge had applied the wrong test: the test under s 255A of the Proceeds of Crime Act 2002 was not whether the case had a 'good prospect of succeeding, with the strength and quality required to prove fraud', it was whether it was a 'good arguable' one; the focus being on arguability, not proof, and on the court's reassessment of the matter there was a good arguable case.