Latest Cases

Limitation of actions – Triennium. Court of Session: In an action in which the pursuer sought damages in respect of a scalding injury he sustained when one year old and while in a residential care home for children operated by the defenders, the court held that the action was time-barred and that it was appropriate to order a preliminary proof on time bar before the court was called on to decide whether, in exercise of its discretion, to allow the case to proceed to proof on its merits. 

Judicial review – Competency. Court of Session: Dismissing as incompetent a judicial review petition brought by a mother as the guardian of her adult son with Down's Syndrome, seeking judicial review of decisions made by a local authority in the assessment of her son's needs, the court held that the authority's complaints procedure was available to the petitioner and was capable of curing the alleged injustice of which she complained, however she had not resorted to it and in those circumstances her application for judicial review was not competent. 

Family proceedings – Orders in family proceedings. The local authority had issued care proceedings in respect of two children. Initially, the authority had recommended supervision orders, but later changed the plan to one of foster care. The judge ordered that the children would be removed into foster care and the mother appealed. The Court of Appeal, Civil Division, in allowing the appeal, held that the judgment had been flawed in its approach to the events which had led to the authority's change of mind and had been lacking in the detail that had been required to substantiate the decision. The matter would be remitted for rehearing. 

Railway – Construction of railway. The claimants issued judicial review proceedings, challenging the defendant Secretary of State's decision to make safeguarding directions for phase 1 of the proposed High Speed Two railway (HS2). They contended that the safeguarding directions were unlawful as they had not been assessed under the regime for strategic environmental assessment. The Planning Court, in dismissing the application, held that the safeguarding directions were not a plan or programme which set the framework for future development consent of projects. 

Building contract – Construction. The Technology and Construction Court considered a claim by long leaseholders in a block of flats, against, among others, the firm of architects responsible for developing the flats and the company employed to inspect the premises with a view to providing certificates to potential purchasers to confirm the quality of the construction. It found that the repairing covenant covered, among others, the claimants, and that the architects had owed a duty of care to the claimants. The costs of remedial work would be allowed, as well as damages for each claimant proportionate to their loss. An appeal to the Court of Appeal was allowed. The judge had erred in finding that the claimants were entitled to succeed on the grounds of negligent misstatement or collateral warranty. 

Patent – Infringement. Applying established law, the Queen's Bench Division held that, the defendant, Victoria's Secret use in the Euroepan Union of PINK both on its goods and as the name of its stores was an infringement of the claimant's registered trade mark rights, Thomas Pink Ltd. Amongst other things, the use of PINK emblazoned on the defendant's items of clothing gave rise to a likelihood of confusion on the part of the average consumer. 

Adoption – Practice. The applicants sought a declaration that an adoption order made in Brazil in the applicants' favour in respect of their niece and nephew, D and E, be recognised under the law of England and Wales. The Family Division, in allowing the application, held that the adoptions of D and E should be properly recognised in accordance with the common law of England and Wales and that a declaration to that effect would be granted, pursuant to s 57 of the Family Law Act 1986. 

Practice – Stay of proceedings. The claimant issued proceedings against the defendant for breach of contract and misrepresentation. The judge stayed the action in favour of the courts of Russia and the claimant appealed. The Court of Appeal, Civil Division, in allowing the appeal, held that the monetary claim, as pleaded, whether in deceit or breach of contract was unsustainable. Accordingly, there was no point in granting a stay in favour of Russia. 

Family proceedings – Orders in family proceedings. A child, A, was born in Zimbabwe. When she was three years old, her father took her to the United States where they resided in-between travelling around the world. On a visit to visit England, social services became concerned for A and a care order was made. The Court of Appeal allowed the father's appeal that the court had been exercising jurisdiction improperly, and remitted the issue of jurisdiction for consideration. The Family Court held that the court had jurisdiction under art 13 of Council Regulation (EC) 2201/2003 because A's habitual residence could not be determined. 

Family proceedings – Orders in family proceedings. The mother applied to the court to take her son to Abu Dhabi to live. The father opposed the application. The Family Division having regard to all the relevant facts allowed the application as the the advantages to the boy of the proposed move to Abu Dhabi in the particular circumstances of the case very greatly outweigh such disadvantages as there were.