Latest Cases

Practice – Chancery Division. The Chancery Division considered the position of a judge asked to recuse himself in a case against the defendant airline in a situation where it was pointed out by the defendant's representative that for the judge to continue would mean a perception of bias. 

Prisoner – Rehabilitation – Extended sentence. Court of Session: Refusing an appeal by a prisoner who was serving an extended sentence and who contended that he had not been given certain courses in prison which the Parole Board for Scotland had recommended and that his Convention rights had been breached, the court held that an extended sentence was a determinate sentence and the implied ancillary duty under art 5(1) of the Human Rights Convention to provide a reasonable opportunity to certain prisoners to work towards rehabilitation to facilitate release was confined to cases involving indeterminate sentences. 

Immigration – Deportation – Exclusion of right of appeal. Court of Session: Refusing a judicial review petition in which the petitioner sought reduction of the Home Secretary's certification excluding a right of appeal and her decision to refuse to revoke a deportation order relating to him, the court held that although the respondent had failed to ask herself whether or not, notwithstanding that the statutory criteria were met, she should exercise her discretion by allowing an appeal to be brought, the petitioner's case was such that it would have been inevitable that, had the respondent properly addressed the discretion, it would have exercised against him. 

Minor – Production. The Family Division considered the situation of T, a Latvian citizen who had been arrested and held in custody when she attempted to go from England on holiday, on the ground that she was in breach of a location order that had been issued in the course of Hague Convention proceedings concerning her child. The court ordered that she be released, and held that she had suffered injustice and indignity as a result of the flawed wording on the standard Form 1A order that had been issued. 

Succession law – Lifetime gift. Court of Session: Granting decree of absolvitor in an action in which a grandson sought declarator that his grandmother had gifted him her house and that her executrix nominate was obliged to convey it to him, the court held that a document signed by deceased did not constitute a binding promise, enforceable against the defender as her executrix, to convey the house to him by way of gift. 

Extradition – Defective warrant – Conviction in absence – Right to trial within reasonable time. Sheriff Court: In a case in which the Spanish authorities sought the respondent's extradition to serve a 4-year prison sentence for two serious assaults, the court rejected contentions that the European Arrest Warrant as presented was formally defective, that the respondent was convicted in his absence, and that his return to Spain would not be compatible with his right to a trial within a reasonable time, and it ordered his return to Spain to serve his sentence there. 

Bank – Bank loan. The Chancery Division allowed the claimants' application and made a declaration to the effect that borrowers in a property loan were not liable to pay to the defendant bank any sum in respect of an internal swap. On the true construction of the loan agreement between the parties, the internal swap did not qualify as a 'funding transaction', for which, under the agreement, the borrowers were to indemnify the bank. 

Practice – Pre-trial or post-judgment relief. The Commercial Court declined to order security for costs on the basis that the evidence had shown that the requirements of CPR25.13(2)(c) had not been met. 

Criminal law – Trial. The defendant appealed against his conviction, in his absence, of causing death by dangerous driving on the basis that the he had been unfit to be tried and the trial should not have proceeded in his absence. The Court of Appeal, Criminal Division, in dismissing the appeal, held that the defendant had not been unfit and, as he had decided voluntarily to absent himself from a trial, the judge had been right to continue. There had been no procedural unfairness or irregularity. 

Arbitration – Award. The Commercial Court held in a challenge by the claimant to part of an arbitral award under s 67 and 68 of the Arbitration Act 1996, that the claimant had not lost its right to challenge the relevant parts of the award but that the challenge nevertheless failed.