Latest Cases

Employment tribunal – Procedure. In dismissing an employee's appeal, the Court of Appeal, Civil Division, confirmed that the practice of employment tribunals to consult between themselves after the hearing and for the decision to be written by the employment judge alone, without a draft being provided to the lay members, if properly followed, was a legitimate procedure which satisfied the requirement that the decision and reasons should record the conclusions of all members of the tribunal. 

Indemnity – Negligence. Following a flood at a recently constructed block of flats, the building owner commenced proceedings against the main contractor which led to a series of claims against the chain of sub-contractors. The judge found that the mechanical sub-sub-sub-contractor (Robson) had been liable for two defects in workmanship which had been the principal cause of the flood with the result that the Robson was liable under the indemnity clause contained in the agreement by which it had been engaged by HSE. The Court of Appeal, Civil Division, upheld that decision and found that HSE's failure to inspect the work properly, even when the breaches should have been detected upon a reasonable inspection of the work, had not shut out its claim under the indemnity. It could not have been presumed that the parties had intended to confine the indemnity clause only to workmanship breaches which had been invisible upon reasonable inspection. 

Town and country planning – Permission for development. The claimant issued judicial review proceedings, contending that the Secretary of State had failed to consult the public of the Republic of Ireland in accordance with art 7 of Directive (EU) 2011/92 in granting development consent for the construction of a European pressurised reactor nuclear power station. The Court of Appeal, Civil Division, in dismissing the application, held that the test was not whether the project was 'likely to have significant effects on the environment' applying to Council Directive (EEC) 92/43, but the 'real risk' test adopted in domestic authorities. It further refused to make a reference to the Court of Justice of the European Union. 

Solemn procedure – Adjournment of trial diet – Time bar – Twelve-month rule. High Court of Justiciary: Passing bills of advocation by four appellants complaining against a sheriff's decisions ex proprio motu adjourning a trial diet to a future assize and thereafter granting a motion for an extension of time, the court held that the decision ex proprio motu to adjourn the trial diet was flawed and in any event the sheriff ought to have exercised his discretion and refused the extension. 

Pension – Pension scheme. Th Chancery Division held, among other things, that, in respect of the Arcadia Group Pension Scheme and the Arcadia Group Senior Executives Pension Scheme, the definitions of retail price index (RPI), applicable in respect of the schemes, operated to confer powers to select an index other than RPI, and that such power of selection was exercisable by the principal employer under the schemes and the trustee of the relevant scheme jointly. 

Time – Extension of time. Having failed in their claim for defamation, the claimants were granted an extension of time for filing their points of dispute in respect of the defendant's bill of costs. The defendant appealed that order, but it was dismissed. Subsequently, the defendant did successfully appeal the extension on the ground that the claimants had issued their application out of time and so had been seeking relief from sanctions, which the judge had been wrong to grant. The Court of Appeal, Civil Division, allowed the appeal as the application for an extension had been made in time and so there had been no relief from sanctions. The court gave guidance on changes to the CPR in respect of applications to extend time. 

Local authority – Residential care home. A dispute arose as to which of three brothers should be appointed as the deputies for their elderly father, DG, who suffered from Alzheimer's disease and lived in a care home. It was held that the application of two brothers who lived near their father would be preferred over that of the third brother, who lived further away and had not had as productive a relationship with those caring for DG. 

Reparation – Negligence – Duty of care. Court of Session: In an action in which the pursuers sought damages in respect of loss caused by fire in a farmhouse and outbuildings they owned, averring that the fire damage was caused as a result of fault and negligence of the defenders, firefighters having concluded that they had extinguished a fire at the farm but the fire having re-ignited after their departure, the court concluded that the pursuers had pled a relevant case which entitled them to proof before answer. 

Employment – Discrimination against a woman. The Employment Appeal Tribunal (EAT), in dismissing the employee's appeal against the rejection by the employment tribunal of her claims for maternity discrimination, indirect sex discrimination and constructive dismissal, found that although the tribunal had erred factually in its approach to constructive dismissal, its conclusion on the facts had been plainly and obviously right. The EAT also made some observations about the procedure to be adopted where the parties found it difficult to agree bundles for use at the EAT. 

Mental health – Human rights. Court of Session: Allowing a reclaiming motion in judicial review proceedings by a patient who was detained indefinitely in the State Hospital, challenging a decision to implement a comprehensive ban on smoking there, the court held that the Lord Ordinary had erred in holding that the respondents did not have the power to implement the prohibition on smoking under the National Health Service (Scotland) Act 1978, and in holding that art 8 of the European Convention on Human Rights was engaged, or, if it was, that there had been disproportionate interference with the petitioner's rights.