Latest Cases

Insolvency – Liquidation – Summary remedy against delinquent directors. Sheriff Court: Refusing an appeal in proceedings brought by the liquidator of a company under s 212 of the Insolvency Act 1986, seeking a summary remedy against the company's sole director, in which the sheriff found that the defender had misapplied certain sums which should have been paid to the company and ordained him to contribute to its assets a sum equal to the total of those sums by way of compensation, the court, after repelling an objection to the competency of note of the appeal, held that although procedural in nature s 212 did provide a summary remedy and that there was no requirement that the court have regard only to actual loss to the company. 

Parent and child – Child protection – Grounds for referral to children's hearing. Sheriff Court: Refusing an appeal by a child's maternal grandmother, challenging the establishment of grounds for referral to a children's hearing, the court rejected contentions that the sheriff had failed to apply the correct test in relation to the particular ground found established, that his findings in fact were insufficient to entitle him to hold the ground for referral established, and that he had erred in the exercise of his discretion by allowing amendment to be made to the supporting facts once the evidence had been concluded and at the stage of closing submissions. 

Shipping – Charterparty. The Commercial Court dismissed the claimant owner's appeal against a finding of the tribunal that the defendant charterers had been entitled to order a vessel hired from the owner to load further cargo. The court held that, on the true construction of the charter between the parties, the charterers had been entitled to order the vessel to load further cargo at a port in Oman. 

Sentence – Robbery. The Court of Appeal, Criminal Division, held that, on the facts, a sentence of 27 months' imprisonment for an offence of attempted robbery had not been unduly lenient. Although a much higher starting point might have been expected, namely one of four years, that had not rendered the adopted starting point of three years' imprisonment unduly lenient. 

Company – Administration order. The Chancery Division made a ruling with regard to the solvency of he defendant company, Lehman Brothers UK Holdings Ltd, which was in administration. The court held that the solvency condition in the standard terms of three loan agreements would be satisfied in the case of the defendant. As a result, the claimant company was entitled to the relief that it claimed as a creditor of the defendant. 

Public procurement – Tender process. Court of Session: Pronouncing decree of absolvitor in action in which the unsuccessful bidders in a competition for the award by the defenders of a contract for the provision of ferry services sought damages, contending that the defenders breached the duty of transparency imposed by reg 4(3) of the Public Contracts (Scotland) Regulations 2006 in two respects, the court rejected contentions that the defenders had failed to define the subject matter of the contract with the clarity required by law and that their evaluation of the freight proposals in the bids which had been submitted had been carried out without reference to any objective criteria. 

Damages and compensation – Crime – Ex gratia compensation scheme. Court of Session: Dismissing a judicial review petition in which the petitioner, who had spent seven years in prison before his murder conviction was quashed on appeal, sought reduction of the Scottish Ministers' decision to refuse his application for compensation under the ex gratia scheme compensating persons for periods spent in custody following wrongful conviction or charge resulting from serious default on the part of the police force or other public authority, the court held that the ministers' decision was one they were entitled to make and was not irrational. 

Education – Discrimination – Age and/or disability. Court of Session: In an appeal by a local education authority, which had refused a request to continue funding the school fees of the pursuer, who suffered from a disability (autism), for further year after he attained the age of 18, and also refused to grant him funding by way of a bursary, the court allowed the appeal in part, holding that while the sheriff was entitled to find that the local authority did discriminate against the pursuer and an award in respect of anxiety and upset should be affirmed, it was not open to the sheriff to make an award based on a finding of liability to pay the school fees for a further year. 

Negligence – Clinical negligence. The Queen's Bench Division found that the claimant's case on clinical negligence had been made out and that notwithstanding the pressures of a busy labour ward, the system of communication and the response to messages sent between the teams had been inadequate and failed to ensure that a reasonable standard of care had been provided to the claimant and his mother in the period before his birth which had resulted in a period of acute hypoxic-ischemic insult at the end of labour which had led to neurological damage. 

Company – Administration order. The Companies Court held that Council Regulation (EC) 1346/2000 applied to the administration of a company which was authorised to undertake both insurance and reinsurance business but which, in practice, only undertook the latter type of business.