Latest Cases

Criminal law – Offensive weapons. The Crown Court had been correct in distinguishing between a Stanley knife and a butterfly knife in holding that the latter had been offensive per se, whereas the former had not been and could be a tool. The Divisional Court, in dismissing the appellant's appeal by way of case stated against his conviction for possession of an offensive weapon, further held that the Crown Court had been correct in considering whether an item that was offensive per se might have been reasonably used as a tool when there were items that were not offensive per se that could be used.

Criminal evidence and procedure – Attempted rape – Docket to indictment – Admissibility of evidence. High Court of Justiciary: Allowing a Crown appeal in the case of a respondent who was indicted on a charge of attempted rape against a decision by a judge at a preliminary hearing sustaining an objection to the admissibility of evidence referred to in a docket attached to the indictment, the court was satisfied that the judge erred in concluding that the evidence which the Crown sought to lead in respect of the docket would be inadmissible.

Contract – Contract for settlement of litigation – Enforceability. Sheriff Appeal Court: Refusing an appeal in an action in which the parties had reached an agreement for the settlement of their dispute over a septic tank on the pursuers' land but their respective experts had been unable to agree on matters which the contract for settlement of the litigation had envisaged that they would agree, namely the precise extent and location of a waste treatment site and the design and specification of waste water treatment works, the court rejected the pursuers' contention that the contract was void from uncertainty and concluded that the sheriff had not erred in allowing a preliminary proof.

Landlord and tenant – Commercial lease – Assignation – Rectification – All parties not called. Court of Session: In a commercial action in which the tenant under a lease of a nursing home sought declarator that the lease was assignable without the landlord's consent, which failing rectification of the lease to that effect, the court refused to grant the declarator sought, holding that the parties envisaged that the lease would be unassignable and assignation was expressly excluded; it allowed parties to develop their pleadings on rectification and rejected the defender's submission that as certain parties had not been called the action should be dismissed.

European Union – Immigration. Article 20 of the Treaty on the Functioning of the European Union, read in the light of arts 7 and 24 of the Charter of Fundamental Rights of the European Union, should be interpreted as not precluding legislation of a member state such as that at issue in the main proceedings, which provided under certain conditions for the loss, by operation of law, of the nationality of that member state, which entailed, in the case of persons who were not also nationals of another member state, the loss of their citizenship of the Union and the rights attaching thereto, in so far as the competent national authorities, including national courts where appropriate, were in a position to examine, as an ancillary issue, the consequences of the loss of that nationality and, where appropriate, to have the persons concerned recover their nationality ex tunc in the context of an application by those persons for a travel document or any other document showing their nationality. The Court of Justice of the European Union so held in proceedings concerning the decision of the Minister for Foreign Affairs, Netherlands, not to examine the applicants respective applications for a national passport.

Company – Shares. The defendant company was in breach of warranty in a share purchase agreement (the SPA) in that it had failed to prepare the forward looking projects with care. Accordingly, the Technology and Construction Court, allowed the claimant company's claim for breach of certain warranties, and held that it was entitled to damages based on the difference between the purchase price agreed on the assumption of the Long Range Plan (the LRP) and what the price would have been, using the same method of calculation, if the properly adjusted LRP had been made, subject to the contractual cap of $15m.

Shipping – General average. The claimant companies' claim in a shipping dispute failed. The claimants alleged that the cause of a container vessel grounding whilst leaving a Chinese port had been an uncharted shoal. The Admiralty Court held, in dismissing the claim, that the cause of the casualty had been the unseaworthiness of the vessel because it had carried a defective passage plan, which had led to the master's negligent navigation.

Family proceedings – Stay of proceedings. Where the mother and the father were engaged in litigation in England and in India, concerning their son (K), aged three, the Family Division ruled that the father had not discharged the burden on him to establish that a stay of the English proceedings, seeking the summary return of K from India, was appropriate. On clear balance, England was the natural and appropriate forum and India was not clearly the more appropriate forum. Accordingly, the father's application for a stay or dismissal of the English proceedings was dismissed. The court further ruled, on the mother's application for an injunction to restrain the father's pursuit of the Indian proceedings, that, while it had the jurisdiction to grant an anti-suit injunction in an application concerning a child, having regard to the test for the deployment of a permanent anti-suit injunction, the case did not fall into a category where such an injunction could properly be made.

European Union – Value added tax. The concept of 'school or university education', within the meaning of art 132(1)(i) and (j) of Council Directive (EC) 2006/112 should be interpreted as not covering motor vehicle driving tuition provided by a driving school, such as that at issue in the main proceedings, for the purpose of acquiring driving licences for vehicles in categories B and C1 referred to in art 4(4) of that directive. The Court of Justice of the European Union so held in proceedings concerning the refusal by the German tax office to exempt from VAT, services relating to motor vehicle driving tuition provided by the taxpayer driving school for the purpose of acquiring driving licences for vehicles in categories B and C1 referred to in art 4(4) of that directive.

European Union – Consumer protection. Council Directive (EEC) 93/13 did not preclude national legislation which prevented the court seised of the case from granting an application for the cancellation of a loan contract on the basis of the unfair nature of a term relating to the exchange difference, such as that at issue in the main proceedings, provided that a finding that terms in such an agreement were unfair would restore the legal and factual situation that the consumer would have been in had that unfair term not existed. The Court of Justice of the European Union so held, among other things, in a preliminary ruling in proceedings concerning the allegedly unfair contractual term providing that the exchange rate applicable at the time of the advance of a loan denominated in a foreign currency was based on the buying rate practised by the bank whereas the exchange rate applicable at the time it was paid off was based on the selling rate.