Latest Cases

Customs and excise – Forfeiture. The Court of Appeal, Civil Division, in dismissing the appeal, agreed with the Upper Tribunal (Tax and Chancery Chamber) that the answer to the question whether, after goods were deemed to have been duly condemned or had been condemned by the magistrates, an officer of the Revenue and Customs Commissioners exercising the discretionary power to restore goods to the owner could or should investigate a claim that the goods were not liable to forfeiture after all, was 'No'. 

Insolvency – Receivership – Ranking preference as between floating charge holder and inhibiting creditor. Court of Session: In a case in which the court revisited the issue of ranking preference as between a floating charge holder and an inhibiting creditor, and considered afresh the meaning of the phrase 'effectually executed diligence' it held that the pursuer's first plea in law must be repelled regardless of whether an inhibition registered in the pursuer's favour fell properly to be categorised as an effectually executed diligence on the two houses owned by the defender, but that the pursuer's alternative argument succeeded—ie that even if the inhibition was not an effectually executed diligence, it nevertheless ranked ahead of a bank's floating charge with regard to debt incurred after the inhibition. 

Parent and child – Contact – Parental rights and responsibilities. Court of Session: Allowing a mother's appeal and refusing a father's cross-appeal in a case in which the sheriff principal had allowed the father's appeal against a sheriff's interlocutor depriving him of all his parental rights and responsibilities in relation to a child and refusing to make a contact order, the court did not support the sheriff principal's decision that there should be contact as directed by the court, and was not satisfied that he was entitled to substitute suspension for deprivation of the defender's parental rights and responsibilities; it also rejected contentions that the sheriff was wrong and unreliable in his approach to parental rights and responsibilities associated with contact and that he had shown apparent bias. 

Housing – Homeless person. The Administrative Court dismissed the claimants' judicial review proceedings, claiming that the manner in which the defendant local housing authority had dealt with their applications for housing as a homeless person had been unlawful and had reflected systemic failings. The individual claims failed because there had been no breach of statutory duty or any breach was minor and did not warrant relief. Further, the possible breach of duty had not arguably supported a claim of systemic failure as was alleged in the general claim. 

Local government – Licensing – Street traders. Sheriff Court: Reversing a licensing authority's decision to vary street trader licences it had granted to the pursuers which allowed them, within set hours, to sell hot and cold food from snack vans on designated sites, to include a condition prohibiting them from operating within 250 metres of secondary schools from 8am to 5pm on school days, which the pursuers all did, the court held that the condition was ultra vires as the defender did not have the power to impose that particular condition on the licences of street traders. 

Judgment – Default of defence. The Court of Appeal, Civil Division, allowed an appeal against a refusal to set aside default judgment. One of the conditions in CPR 12.3(1) had not been met, as no time for responding to service of the claim form had been given, and, therefore, the relevant time for doing so had not expired. Further, it could not be said that the defendant did not have an arguable defence. 

Extradition – Human rights. Sheriff Court: In a case in which the Government of the USA sought a Pakistani citizen's extradition for prosecution on nine serious fraud charges, an application which was opposed based on s 87 of the Extradition Act 2003 and alleged contraventions of art 2 (right to life) of the European Convention on Human Rights, art 3 (freedom from torture), art 5 (right to liberty) and art 6 (right to a fair trial), the court held that extradition would be compatible with the respondent's Convention rights, within the meaning of the Human Rights Act 1998, and was satisfied that that the case could safely be sent to the Scottish Ministers for their final decision on whether the respondent was to be extradited. 

Electricity transmission – Wayleaves – Temporary continuation of wayleaves. Court of Session: Dismissing an action in which the pursuer sought damages for encroachment by reason of the presence of the defender's equipment on a site between 27 September 1997, when the pursuer entered into possession of the site, and 13 August 2014, when the Scottish Ministers granted a necessary wayleave in the defender's favour, the court held that when effect was given to what it considered to be the proper construction of para 8 of Sch 4 to the Electricity Act 1989, the pursuer's claim, relying as it did on the proposition that on a pre-existing wayleave ceasing to be binding on a change of ownership the presence of an electric line on land became an encroachment and as such actionable in damages, was irrelevant. 

Criminal law – Rape. The Court of Appeal, Criminal Division, held that a sentence of three years' imprisonment for an offence of rape, contrary to s 1(1) of the Sexual Offences Act 2003, had been unduly lenient. The judge had not identified sufficient mitigation to depart from the sentencing range, as prescribed by the Sentencing Council's Definitive Guidelines: Sexual Offences. The sentence would be quashed and substituted for a term of five years and six months' imprisonment. 

Family proceedings – Orders in family proceedings. The Court of Appeal, Civil Division, dismissed the appellant's appeal against two case management decisions made in preparation for a fact-finding hearing, namely, that certain witnesses would not give oral evidence at trial, and, save in one respect, dismissed his appeal against the findings of fact themselves.