Latest Cases

Commercial contract – Building contract – Appointment of Quantity Surveyor – Validity of notices. Sheriff Court: In an action which concerned a standard form of building contract under which the pursuers carried out building works for defenders, in which the issues were whether or not any person was appointed to exercise the functions of Quantity Surveyor for the purposes of the contract, and whether, in any event, the pursuers' Interim Applications and Interim Payment Notices ('the pursuers' notices') were invalid, such that the defenders' admitted failure to issue Pay Less Notices did not render them liable to pay anything to the pursuers, the court held that the pursuers were saying that the parties agreed, or the defenders nominated, the person who was to be the Quantity Surveyor and that that was done independently of the standard form contract, and the pursuers were entitled to a proof before answer of those averments; one of the pursuers' notices was valid, however, the other two were invalid because they were defective in form and the averments relating to them fell to be excluded from probation.

Company – Administration. The objections of one of the respondents' creditors to a petition by the joint administrators of Cambridge Analytica, for among other things relief in the form of them being appointed joint liquidators, was not successful. Accordingly, the Chancery Division appointed the joint administrators as liquidators.

Servitude – Pipeline – Entitlement to compensation for inability to develop land due to existence of pipeline. Court of Session: In an action in which the pursuer sought payment of compensation from the defender as a result of its claimed inability to develop a property as a 35-bedroom 5-star luxury hotel due to the proximity of a pipeline, claiming entitlement to compensation as a result of the provisions of a grant of servitude, the court held that the defender was not liable to pay compensation to pursuer in terms of the servitude: although an application in 2017 for planning permission for a 35-bedroom hotel was refused on the basis of the proximity of the property to the pipeline, a 35-bedroom hotel could be developed on the basis of existing planning permissions and therefore such a development was not prevented by the existence of the pipeline; furthermore the pursuer had failed to prove that the proposed development was achievable as a matter of practical reality—ie that it was buildable, affordable and financially viable.

Criminal law – Rape – Consent. High Court of Justiciary: Refusing an appeal by an appellant who was charged with the rape of a woman 'whilst she was asleep and incapable of giving or withholding consent' and who lodged a special defence which stated that he engaged in sexual intercourse 'with the consent of' the complainer and 'in any event when [he] reasonably believed her to be consenting', the court held that a person could not consent in advance to having sexual intercourse whilst asleep.

Civil procedure – Simple procedure – Procedural fairness. Sheriff Appeal Court: Refusing an appeal in an action in which the respondents sought payment of money due for the provision of glass and the appellants sought to offset sums they claimed were due for faulty glass supplied as part of an earlier separate order, and in which, at a case management discussion the sheriff granted decree, being satisfied that the contractual relationship was governed by conditions of sale which specifically excluded set-off, the court rejected contentions that the conditions of sale were lodged too late for procedural fairness and that procedural unfairness arose from the appellants being deprived of an opportunity to challenge the conditions of sale and to establish the sums due in terms of the set-off, holding that the sheriff was entitled to dispose of the matter in the way she did.

Insurance – Reinsurance. The doctrine of good faith required the reinsurance claims to be presented on a basis which apportioned the respondent insurer's ultimate net loss between each policy year in respect of which the insurer was liable to indemnify the insured employer for the damage caused to a victim by mesothelioma. Accordingly, the Court of Appeal, Civil Division, allowed the appellant reinsurer's appeal against the arbitrator's decision that an insurer which settled a claim for liability for mesothelioma arising under EL insurance policies which spanned several years of exposure to asbestos, could claim an indemnity for its full loss under which ever annual reinsurance within that period it chose in order to maximise its reinsurance recovery.

Extradition – Inhuman and degrading treatment. There were no substantial grounds to believe that the appellants, if returned to Hungary, would be at real risk of a breach of the inhuman and degrading treatment limb of art 3 of the European Convention on Human Rights, on the basis of the provision of the personal space and that assurances of adequate personal space were not reliable. The Divisional Court, in dismissing their appeals against extradition, further held that a court should exercise very considerable caution when asked by an appellant to admit and to evaluate evidence relating an alleged breach of an assurance given to foreign authorities or courts.

Local authority – Education. The defendant local authority's policies, that related to the funding of schools to deliver the special educational provision to children with special educational needs and disabilities, were not in breach of the local authority's duty under s 42 of the Children and Families Act 2014, nor in breach of its other statutory duties, duties of consultation and the public sector equality duty. Accordingly, the Administrative Court dismissed the claimant children's claim.

Guarantee – Construction. The underlying dispute between the parties concerned a claim by the first and second defendant companies that the claimant company had deducted discounts when making payments to them under contracts for the provision of goods and services in Bangladesh. The claimant had failed to establish a good arguable case that it could found jurisdiction against the first and second defendant companies on the jurisdiction provisions of a guarantee annexed to the contracts for the provision of goods and services. Accordingly, the Commercial Court held, among other things, that the claimant's claim for jurisdiction before the English courts failed.

Road traffic – Private hire vehicle. It was abundantly clear that the defendant court had not granted a provisional or probationary licence without considering whether Uber had been, at the time of the hearing, a fit and proper person. The Divisional Court, in dismissing the claimant's appeal, further rejected the contention that decision was tainted by actual or apparent bias by reason of the judge's husband's financial relationship with Uber.