Latest Cases

Civil procedure – Dismissal for delay. Court of Session: Refusing a reclaiming motion in an action by a pursuer who was involved in a helicopter accident in 1988, who averred that the incident had caused him to suffer post traumatic stress disorder, and who raised an action in 1990 suing the operators of the helicopter for 'bodily injury suffered' under the Warsaw Convention, the court held that the Lord Ordinary had not erred in dismissing the action in May 2013 on account of inordinate and inexcusable delay resulting in unfairness under Rule of Court 21A.1. 

Practice – Summary judgment. The claimants sought summary judgment and declarations regarding the ownership of property, in respect of which trust deeds had set out ownership. The defendant contended that, notwithstanding those trust deeds, it had been the intention of his elderly father, the second claimant that the defendant would hold the property on trust for him. The Chancery Division granted summary judgment where there was no arguable case that the trust deeds were in fact a sham and where there was no other compelling reason why the case should go to trial. 

Contract – Construction. Shares in a company had been used as security for a loan along with an equitable mortgage of a valuable property in France. The company whose shares had been used as security took over the loan as borrower. The lender assigned its benefit under the loan to another company. The villa was sold to the defendants in part settlement of money obtained by fraud by the man who owned the company that had taken out the loan. The lender and assignee claimed actionable interference with their rights and a breach of the loan agreement. The judge found in favour of the lender and assignee. The Court of Appeal, Civil Division upheld the judge's decision for the reasons he had given and dismissed the appeal. 

European Union – Transport. The present proceedings between Mr Glatzel and Freistaat Bayern concerned the decision by which Mr Glatzel had been refused a driving licence for vehicles in categories C1 and C1E, as defined by Directive (EC) 2006/126 (the Directive), on the ground that the visual acuity in his worse eye did not reach the minimum level required in point 6.4 of Annex III to that directive. Following a request for the Court of Justice of the European Union (the Court) to make a preliminary ruling on the compatibility of point 6.4 of the Directive with arts 20, 21(1) and 26 of the Charter of Fundamental Rights of the European Union concerning the minimum standards relating to the physical fitness to drive a motor vehicle as regards visual acuity, the Court decided that consideration of that issue did not reveal any information capable of affecting the validity of point 6.4 of Annex III to the Directive. 

Negligence – Damage. The claimant was a father seeking access to his son within the family court system. He brought a claim against the Children and Family Court Advisory and Support Service (CAFCASS) contending that their negligent behaviour amounted to misfeasance in public office and also disproportionately breached his right to private and family life under art 8 of the European Convention of Human Rights and under the Human Rights Act 1998. He sought damages against CAFCASS. The Queen's Bench Division held that the instant was not a case in which it was fair, just and reasonable to impose a duty of care on CAFCASS towards the claimant. 

Evidence – Expert witness. The CPR Pt 20 claimants alleged that the defendant had breached his duty as director of a company, in administration, in which they had held shares. The defendant applied to strike out the claim, alleging that an expert report, relied on by the claimants, had been made by an expert with a conflict of interests. A judge refused the application to strike out. The defendant appealed. The Chancery Division, in dismissing the appeal, held that there was no evidence that a conflict of interest existed alleged such that the court should rule the expert report inadmissible. 

Pleading – Counterclaim. Negotiations took place concerning the financial future of Coventry City Football Club. The negotiations broke down, and the claimant trustees commenced proceedings. The defendant company counterclaimed, submitting that it had been an implied term of an agreement between the parties that the negotiations would be conducted in good faith, and that the trustees would not do anything to impede the performance of certain conditions precedent. The Mercantile Court held that there was no justification for reading into the contract the elements sought by the defendant, and the counterclaim would be dismissed. 

Family proceedings – Orders in family proceedings. The judge after a fact finding hearing found that nine specific allegations made by the local authority in relation to six children had taken place. Following certain retractions of the allegations the matter was remitted to the same judge who did not find the retractions credible and following a further fact finding hearing, the conclusion was that there should be residence orders in respect of the two elder children, a special guardianship order in respect of the youngest child and special guardianship orders in respect of the other three children. The father appealed and the Family Court dismissed his appeal finding that the findings of the judge were unassailable. 

European Union – Trade marks. The General Court of the European Union dismissed the action brought by K-Swiss Inc., (K-Swiss) for annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) relating to invalidity proceedings between Künzli SwissSchuh AG and K-Swiss, Inc., in respect of the application by K-Swiss for registration of a figurative sign consisting of a two-dimensional representation of the shape of a shoe showing five parallel stripes. 

Personal injury – Negligence – Duty of care. Court of Session: Pronouncing decree of absolvitor in an action in which the pursuer, who was struck and blinded in the right eye by a golf ball hit by the defender during a golf tournament, sought damages, claiming the defender was negligent, the court held that the defender played his shot in the ordinary course of play, the danger of the pursuer's being hit by the shot was a risk incidental to the competition, which he accepted when undertaking the task of officiating, and the injury he sustained was not caused by an error of judgment on the defender's part that a reasonable competitor, being a reasonable man of the sporting world, would not have made.