Latest Cases

Cohabitants – Financial provision – Application by survivor for provision on intestacy – Meaning of 'net intestate estate'. Court of Session: Refusing an appeal by a surviving cohabitant to whom a sheriff had awarded a capital sum out of the intestate estate of her deceased partner, the court held that the deceased's 'net intestate estate' in terms of s 29 of the Family Law (Scotland) Act did not include property he owned in Ireland and the sheriff principal was, therefore, correct to reduce the award to the appellant to nil. 

Sentence – Notification and orders. The claimant sought judicial review of the defendant court's dismissal of his appeal, under s 91C of the Sexual Offences Act 2003, against the Chief Constable's refusal to relieve him of notification obligations. The Divisional Court gave guidance on the nature of the appeal to the magistrates' court under s 91E of the Act. It then found that the defendant had erred in law in dismissing the appeal. The matter was remitted to a freshly constituted court, as it could not be concluded that there had been only one decision which the defendant could have reached. 

Damages – Personal injury. The claimant alleged that he had been exposed to asbestos dust whilst working for the defendants. He had previously brought an action against eight other defendants in 2003 which had ended in a settlement (the 'first action'). In the first action, the claimant had claimed damages for asbestosis and pleural plaques and damages for the risk of mesothelioma. The claimant claimed damages against the defendants for his contraction of pleural mesothelioma. The defendants resisted the claim. Three issues came to be decided as preliminary issues. The Queen's Bench Division held that the proceedings were not an abuse of process and would be allowed to continue by virtue of s 33 of the Limitation Act 1980. 

Costs – Order for costs. Following proceedings for personal injury, in which the defendant had joined a third party pursuant to CPR Pt 20, judgment on costs was given by reference to CPR 44.13 to 44.17, which had introduced the Qualified One-Way Costs Shifting (QOCS) regime. The Court of Appeal, Civil Division, held that the regime was not ultra vires, it did have retrospective effect and the regime did not apply to funding arrangements such as conditional fee agreements. Further, the QOCS regime had not applied to the proceedings between the defendant and third party as it did not apply to the entire action in a claim for damages. 

Company – Voluntary winding up. The claimant companies sought relief, under s 212 of the Insolvency Act 1986, for the first defendant's misapplication of a company's funds while acting as its liquidator. The Chancery Division, in allowing the claim, held that the first defendant had acted in breach of the duty implicit in s 107 of the 1986 Act and had acted negligently in paying out the funds. Further, the first defendant's defences, including under s 1157 of the Companies Act 2006 and the illegality of the company's conduct were rejected, as her conduct had not been reasonable and the illegality defence did not arise in the circumstances. 

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. 

Mental health – Court of Protection. The patient was an elderly lady of 79 years, 'J', with longstanding mental health problems and also, in later years, cancer. The relevant NHS Trust issued a notice of application in the Court of Protection seeking declarations: (i) that J lacked capacity to litigate; (ii) that she lacked capacity to take decisions about the proposed medical investigations and treatment; and (iii) that it was in her best interests to have those investigations and treatment. Having regard to the Mental Capacity Act 2005, the court made the declarations sought. 

Family proceedings – Orders in family proceedings. In a hostile dispute between the parents of an 11 year old child, the Family Division held that the child was to be joined as a party and separately represented by a completely independent guardian in the proceedings. The court declined to give any direction with regard to psychiatric or psychological examination as the appointment of a guardian would suffice. 

Family provision – Property available for financial provision. A woman had died from terminal illness and her husband had received a payment under the life insurance policy that they held. However, they were in the process of divorcing at the time of her death and she had had a child with another partner. The child issued proceedings under the Inheritance (Provision for Family and Dependents) Act 1975. A preliminary issue was determined which held that immediately before her death, the deceased had been entitled to a joint tenancy of the right under the life policy to benefit from her assumed terminal illness. The Court of Appeal, Civil Division, held that although there had been a severable interest in the policy immediately prior to the deceased's death, it had had a nil value because the benefit had been dependent upon an appropriate claim having been made and, as no claim had been made, there had been no value to be treated as part of the estate. 

Family proceedings – Orders in family proceedings. The Family Division, in considering three cases with overlapping issues, found that there might be circumstances in which the court could properly direct that the cost of certain activities should be borne by the Courts Service. It would be an order of last resort. No order of that sort should be made except by or having first consulted a High Court judge or a designated family judge.