Latest Cases

Personal injury – Volenti – Breach of duty – Causation – Contributory negligence. Sheriff Appeal Court: Allowing an appeal in an action in which the pursuer sought damages in respect of injuries sustained after falling when crossing an excavation on the pavement outside her home, and the sheriff granted decree of absolvitor, concluding that volenti applied, the court held that the case was not one in which the maxim volenti non fit injuria applied, the defenders were in breach of the duty to provide safe access to householders on the pursuer's street at the relevant time due to the absence of walk boards, and their failure to take reasonable steps to provide such a proper means of access was the real and proximate cause of the pursuer's accident, however her conduct contributed equally to that of the defenders in causing her injury, so any damages should be reduced by one half.

Commercial contract – Breach of contract – Collateral warranty – Construction – Prescription – Contractual bar. Court of Session: In an action in which the pursuers in reliance on a collateral warranty in their favour sued the defender for breach of obligations defined by reference to a building contract between the defender and the pursuers' predecessors as owners of a retail park designed and constructed by the defender, the court rejected the defender's argument that because any obligation it might have owed to the pursuers' predecessors as owners in respect of breach of the building contract had been extinguished by the operation of prescription then, on the proper construction of the collateral warranty, the pursuers were contractually barred from succeeding against it in the present action.

Employment – Breach of contract. The claimant succeeded in its application for injunctive relief against the defendants, requiring them to deliver up various property on their doorsteps. The Queen's Bench Division held that the relief sought was justified in the circumstances, as the potential damage to the claimants could be very serious; there was clear evidence that the defendants had electronic copies of a substantial amount of the claimant's confidential data and there was a real possibility of destruction of the same.

Criminal law – Assault. The claimant's appeal against a decision to dismiss his claim for assault and false imprisonment against the defendant was dismissed. The Queen's Bench Division found that the judge had not erred in law in deciding there were no disputed issues of fact that the jury was required to determine and in discharging the jury without them having returned a verdict, nor in dismissing the claimant's claim in favour of the defendant in the circumstances.

Trust and trustee – Creation of trust. An oral statement, allegedly made by the deceased prior to his death, had not created a trust in favour of his grandchildren in respect of a residential property. Accordingly, the Chancery Division dismissed the claimant's appeal against the dismissal of his claim for a declaration that such a trust had been created.

European Union – Trade marks. In the absence of any evidence to the contrary adduced by the applicant, the Second Board of Appeal of the European Union Intellectual Property Office had correctly concluded that the applicant company had not sent its notice of appeal on the stipulated date, and that the notice could not be considered to have been received by the time limit set and, therefore, had to be rejected as inadmissible. Consequently, the General Court of the European Union dismissed the applicant's appeal against the Board's decision that the appeal was inadmissible on the ground that it had not been received by the time limit prescribed.

Practice – Striking out. In proceedings where the claimants had sought relief, pursuant to s 423 of the Insolvency Act 1986, on the footing that the transfer of property from the first defendant to the second defendant had been entered into for the purpose of putting assets beyond the reach of those with claims against the first defendant, the claimants could not be criticised for making their s 423 applications after the determination of the issue relating to the validity of the transfer of property. Accordingly, the Business and Property Court dismissed the defendants' applications to strike out the s 423 applications as an abuse of process.

Practice – Striking out. The proceedings arose from two claims against the insolvent first defendant solicitors. The Queen's Bench Division held that to permit the claimant's claim for a declaration, that the second defendant was a successor practice of the first defendant, to proceed in its current form purely against the second defendant would clearly put the second defendant to a great deal of time and cost in circumstances where it had no direct liability to the claimant. Accordingly, it stayed the second defendant's application to strike out the claim for a declaration for a limited period, with a direction that unless the claimant applied to lift the stay altogether with an application to amend relating to the inclusion of the second defendant's insurers, the claim against the second defendant would be struck out without further order.

Pension – Pension scheme. The trustee of the Coats UK Pension Scheme succeeded, in part, on its appeal against decisions of the Deputy Pensions Ombudsman, concerning the annual rate of increase which ought to have been applied to the respondents' pension payments since 4 February 2008. The Chancery Division allowed the appeal on the basis that, contrary to the Deputy Pensions Ombudsman's conclusion, the respondents were not entitled to annual increases of 5%, with effect from 4 February 2008, because that was contrary to r 17.6 of the 2004 Rules governing the scheme, as modified by a 2008 trust deed, which had been validly made pursuant to s 68 of the Pensions Act 1995.

Loans – Loan agreement. On the evidence, the claimants were entitled to summary judgment for: (i) the principal sums claimed under two facility agreements entered into by the first claimant bank and the first and third defendants respectively; (ii) interest up to the date of the judgment; (iii) costs and expenses under cl 17.3 of both agreements (excluding the legal costs referred to in (iv)); and (iv) legal costs and disbursement incurred in the present proceedings. Consequently, the Commercial Court granted the claimants' application for summary judgment and made the declarations sought by the claimants.