AXA GENERAL INSURANCE LIMITED AND OTHERS

Fri, 08 Jan 2010 00:00:00 GMT

Following a 22-day hearing in the Court of Session, Lord Emslie has rejected a three pronged challenge by major UK insurance companies to the validity of an Act of the Scottish Parliament.

The Damages (Asbestos-related Conditions) (Scotland) Act 2009, which came into force on 17 June last year, allows individuals to claim damages for pleural plaques and other long-term medical consequences of asbestos exposure, even at a stage when such conditions are neither symptomatic nor disabling. In the Parliament’s view it would be wrong to regard these conditions as trivial, and a primary purpose of the Act is to ensure that a recent decision of the House of Lords to the opposite effect — sometimes referred to as the Rothwell ruling — should not apply in Scotland.

According to the petitioning insurers, the new Act (i) infringes Article 6 of the European Convention on Human Rights (unlawful legislative interference with pending court actions), (ii) violates Article 1 of the First Protocol to the Convention (unlawful interference with property rights), and furthermore (iii) is irrational at common law. In particular, they complain that the Act seeks to benefit a small group of individuals who have, in fact and in law, suffered no harm, and by retrospectively “reconfiguring” historic insurance contracts imposes a disproportionate and excessive burden on insurers running into hundreds of millions, if not billions, of pounds.

For more than 20 years prior to the Rothwell test cases reaching the House of Lords, UK insurance companies had regularly conceded liability to pay damages for asymptomatic pleural plaques and similar asbestos-related conditions. Many claims were settled on that basis from about 1984 onwards, with awards being made by courts both north and south of the border, and it was only a sharp rise in the number and value of such claims in the early 2000s that provoked the test cases in question.

In deciding these cases in the defendants’ favour, the House of Lords applied settled principles of the law of negligence whereby damages cannot ordinarily be claimed for medical conditions which are asymptomatic and non-disabling, or for mere worry or anxiety, or for the risk of future harm, or even for a combination of these. However, the application of such principles involves a value judgment as to whether an individual claimant’s condition is sufficiently serious to cross the threshold for a valid claim, and in borderline cases this may give rise to difficult questions of degree. Significantly, more than one of their Lordships in Rothwell expressed regret that affected claimants would be left without a remedy, and it is in this area that the new Act reflects a more positive attitude in line with the 20 years or more of pre-Rothwell practice.

Although in most cases pleural plaques have no discernible effect on an individual’s day-to-day physical health or well-being, they are nevertheless abnormal and unwelcome pathological changes in the layers of tissue which lie between the lungs and the inside of the rib cage. Radiologically diagnosed, they are dense, irregularly-shaped, collagenous masses which may, in size, be more than 10cm across and up to 1cm in thickness. They may fuse together into large sheets and tend to calcify with time. Not surprisingly, individuals diagnosed with pleural plaques are liable to become alarmed and anxious for the future, and this may severely reduce their enjoyment and quality of life. The diagnosis confirms significant asbestos exposure in the past, of which they may or may not previously have been aware. It underlines the much higher risk which they now face, many hundreds of times greater than for members of the general public, of contracting lung cancer, mesothelioma or asbestosis. And it may bring to mind the suffering and perhaps death of friends, colleagues and relatives from these serious asbestos-related diseases.

The insurers’ petition for judicial review was strongly opposed by the Scottish Ministers and by a representative group of pleural plaques claimants whose position would suffer if the new Act were to be struck down. Apart from branding the challenge as ill-founded in all of its branches, these respondents argued that no Act of the Scottish Parliament could be held irrational at common law where that did not appear among the permitted grounds of challenge listed in section 29 of the Scotland Act 1998. In any event, according to the respondents, the petitioners lacked title and interest to bring these proceedings. As mere insurers owing contractual obligations to negligent former employers (against whom claims would actually be brought), they could only be affected by the new Act in a secondary and indirect way.

In a 151-page judgment issued today, Lord Emslie has decided certain issues in the petitioners’ favour while, in the end, rejecting the merits of their challenge in all three branches. In particular, on the fiercely-contested preliminary issue of title and interest to sue, chapter 2 of the judgment finds the petitioners’ connection with the new Act to be sufficiently close and direct to entitle them to be heard on the merits of their various complaints under the ECHR and at common law. In parallel, chapter 3 confirms the title and interest of the representative pleural plaques claimants to appear as respondents in these proceedings. Chapter 4 goes on to uphold the legal and constitutional competency of challenging an Act of the Scottish Parliament on the common law ground of irrationality. While it might have been possible to exclude common law review in that context, the Scotland Act 1998 does not do so either expressly or by necessary implication.

Hwever, while expressing a degree of sympathy for the petitioners’ position, Lord Emslie dismissed their application on its merits. Chapter 5 of his judgment rejects the Article 6 claim on the basis (i) that the petitioners as insurers are not parties to any affected court proceedings; (ii) that the Act does not relevantly interfere with pending actions anyway; and (iii) that the new legislation can in any event be justified on what the European Court of Human Rights at Strasbourg terms “compelling grounds of the general interest”. Chapter 6 similarly rejects the claim under Article 1 of the First Protocol, this time on the ground (i) that the Act does not relevantly interfere with the petitioners’ “possessions” or property rights; and (ii) that in any event it serves a legitimate social purpose and meets the test of proportionality in its scope and effects. Whether historic insurance contracts are engaged or not, there is no obvious reason why negligent former employers should not be held liable in damages for resultant harm. And, finally, chapter 7 rejects the common law challenge on the basis that the petitioners’ complaints fall short of the degree of “irrationality” which would be required in order to invalidate primary legislation passed by the democratically-elected Scottish Parliament.

HMA v STUART COSSAR

Fri, 13 Aug 2010 00:00:00 GMT

Today the Appeal Court increased the sentence imposed on Stuart Cossar in the High Court on 1 October 2009, after the Crown appealed that the original sentence of 4 years and 6 months was unduly lenient.

The Appeal Court granted the appeal and imposed an extended sentence of 8 years and 9 months, of which the custodial part is 6 years and 9 months with an extension period of 2 years.

ASHRAF, AHMED, MALIK, and MOHAMMED v HMA

Thu, 26 Aug 2010 00:00:00 GMT

Today the Appeal Court allowed each of these appeals and quashed the sentences imposed. In respect of the first and second appellants the court substituted sentences of 14 months detention and in respect of the third and fourth appellants sentences of 16 months detention. The sentences in respect of the first, second and third appellants will run from 3 March 2010 and in respect of the fourth appellant from 30 March 2010.

Taking into account the circumstances of the offence and the personal circumstances of each of the appellants the court reached the conclusion that the sentence selected by the sheriff in each case as a starting point was excessive, particularly the starting point chosen for the third and fourth appellants. The court decided that the starting point, before applying discount, in the case of the first and second appellants should not have been in excess of 18 months and that for the third and fourth appellants in excess of 20 months.

IMPERIAL TOBACCO LIMITED for JUDICIAL REVIEW

Thu, 30 Sep 2010 00:00:00 GMT

In 2008, in response to a report by the Smoking Prevention Working Group and other publications, the Scottish Government published Scotland’s Future is Smoke Free: A Smoking Prevention Plan. Having regard to what it identified as the serious health problems associated with smoking, the Scottish Government declared its intention to introduce legislative controls to restrict the display of tobacco products at points of sale and to take steps in relation to the sale of cigarettes from vending machines. This was stated to be part of its commitment to reducing the affordability, attractiveness and availability of tobacco products to children and young people in an effort to stop young people from starting to smoke in the first place.

On 27 January 2010 the Scottish Parliament passed the Tobacco & Primary Medical Services (Scotland) Act 2010. Section 1 prohibits the display of tobacco products at point of sale and section 9 prohibits the use of vending machines to sell tobacco products.

Imperial Tobacco Ltd, which is engaged in the manufacture, marketing and sale of tobacco products, including well known brands of cigarettes, brought a judicial review seeking a ruling by the court that sections 1 and 9 of the 2010 Act were outside the legislative competence of the Scottish Parliament and therefore were not law.

The Scottish Parliament, which first met in 1999, was established by section 1 of the Scotland Act 1998. Section 28 of the Scotland Act provides that the Scottish Parliament may make laws to be known as Acts of the Scottish Parliament. The court held that it should endeavour to find in the Scotland Act a constitutional settlement which is coherent, stable and workable (para [3]). Under the Scotland Act certain matters are reserved to the UK Parliament and there is a prohibition on the modification of certain existing rules.

Four questions arose in the case:

Do sections 1 and 9 of the 2010 Act relate to a reserved matter in terms of 29(2)(b) and (3) of the Scotland Act?
Are sections 1 and 9 of the 2010 Act deemed to be related to a reserved matter because they make modifications to Scots criminal law as it applies to reserved matters?
Do sections 1 and 9 of the 2010 Act modify a rule of Scots criminal law which is special to a reserved matter?
Do sections 1 and 9 of the 2010 Act modify article VI of the Acts of Union 1706 and 1707 so far as it relates to freedom of trade?

Imperial Tobacco argued that sections 1 and 9 of the 2010 Act related to a consumer protection issue, namely, the regulation of the sale and supply of goods and services to consumers which was a reserved matter in terms of section C7(a) of schedule 5 to the Scotland Act. The court held that section C7(a) should be given a narrow construction as covering the terms on which goods and services are sold (paras [18] – [20]).

Reasons for decision

After examining the terms of the provisions and the background materials, including the surrounding documents and the parliamentary debates, the court concluded that the purpose of sections 1 and 9 of the 2010 Act was to reduce smoking of tobacco among children and young persons and thereby improve public health in the long term. That purpose would not relate to a reserved matter in terms of section 29(2)(b) of the Scotland Act (paras [34] – [52]).

The court held that by creating new offences, sections 1 and 9 of the 2010 Act did not modify any general provision of Scots criminal law as it applied to a reserved matter. They simply modified the circumstances in which a sale could take place (paras [57] – [60]).

The court held that sections 1 and 9 of the 2010 Act did not modify a rule of Scots criminal law which is special to a reserved matter. The first crucial step was to identify a rule of Scots criminal law being modified. No such rule was identified. These provisions did not modify any existing rule of Scots criminal law, including regulation 14 of the Tobacco Products (Manufacture, Presentation and Sale) (Safety) Regulations 2002. They created new, additional offences which fell to be added to the existing list of offences relating to the sale of tobacco products (paras [64] – [67]).

The court held that sections 1 and 9 of the 2010 Act did not modify article VI of the Acts of Union so far as it related to freedom of trade. Freedom of trade should be interpreted as relating to a common market. This was confirmed by the Secretary of State for Scotland in the debate in the UK Parliament during the passage of the Scotland Act. An examination of the historical context in which the Acts of Union were passed made it clear that the paramount concern on the Scottish side of entering the Union with England was gaining entrance to the common market of England and her colonies. For years prior to the Union Scottish merchants had sought access to that market and had been refused (paras [74] – [80]).

Accordingly, the court held that sections 1 and 9 of the 2010 Act were within the competence of the Scottish Parliament and dismissed the petition.

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for that decision. The full opinion of the Court is the only authoritative document.

The full opinion is now available.

APPEAL DECISION NJDB against JEG

Fri, 22 Oct 2010 00:00:00 GMT

The court has been particularly concerned about the protracted length of the proceedings in the sheriff court. Evidence was led for, in total, 52 days in a family case which ought to have been relatively straightforward. The court was informed that proceedings of such length in such cases are not unusual. The court regards this state of affairs as highly unsatisfactory.

The primary responsibility for achieving such a disposal lies with the parties’ professional advisers, solicitors and counsel. In a situation where, for their clients, the proceedings may well be emotionally charged, professional advisers have a duty to take steps to identify and concentrate on, and only on, the issue – the welfare of the subject child or children.

Under current arrangements sheriffs and judges are not best placed to control the scope of proceedings. Pleadings are largely in the hands of professional advisers and, at a proof, the only controlling measure which the sheriff or judge can take may be limited to ruling upon exceptions to questions or to lines of evidence as going beyond the scope of the pleadings. Nor are they best placed to decide in the course of a proof whether a particular line is relevant or helpful. If, as is suggested, this case is not atypical, it may be that the liberty which professional advisers have hitherto enjoyed in this field should be curtailed.

The Court has suggested that consideration should now be given to the issuing of Practice Notes in cases involving the welfare of children (as has already been done with respect to adoption cases) to regulate proceedings with a view to reaching an expedited but right disposal. Such Notes might also address the role of curators ad litem in such proceedings.

The full Opinion is now available.

CRIMINAL APPEAL COURT GAIL COCHRANE v HMA

Thu, 18 Nov 2010 00:00:00 GMT

On 26 April 2010 at a Preliminary Hearing in the High Court at Edinburgh Gail Cochrane pled guilty to being in possession of a prohibited weapon, namely a browning 7.65mm self-loading pistol, contrary to section 5(1)(aba) of the Firearms Act 1968. Such an offence carries a minimum penalty of five years imprisonment in the absence of “exceptional circumstances relating to the offence or to the offender” (s 51A(1) and (2)). Gail Cochrane was subsequently sentenced to imprisonment for a period of 5 years.

The appeal in this instance was primarily concerned with the question whether “exceptional circumstances” relating to the offence or to the offender existed.

In June 2009 police officers went to the appellant’s house in order to look for her son. The appellant allowed the officers to search the house, but during the search the officers found a handgun underneath the mattress of the appellant’s bed. She told the police that it belonged to her and that it had previously belonged to her father, who had died about 28 years previously.

She had found the pistol among her father’s possessions when he died. Her father had served in the Royal Navy during the Second World War and the pistol was with other articles relating to his wartime service. She believed it to be a real gun but said that that it did not occur to her that she needed a licence for it. While it was in poor external condition it was still in working order and capable of firing bullets. She had no ammunition for it.

A Social Enquiry Report prepared for the court highlighted that the appellant had a high level of involvement with her grandchildren as their mother, her daughter, had a drug problem. The appellant was said to be very concerned about the effect which her receiving a custodial sentence might have on her grandchildren. She was concerned that the risk of the children being taken into care would be increased if she was not there to provide daily support.

The appeal was brought on the basis that the sentencing judge erred in concluding that exceptional circumstances did not exist. However, the court noted that the sentencing judge did not appear to have important aspects of the relevant authorities drawn to her attention. The Crown conceded at the appeal that the appellant was unaware that her possession of the pistol was unlawful

In reaching its decision to quash the sentence the Appeal Court noted the following points:

It was not apparent that the sentencing judge took account of the appellant’s evidence that she was unaware that she needed a licence for the pistol.
No significance appeared to have been attached to the appellant’s role in the care of her grandchildren, which should have been considered as part of the circumstances as a whole.
The sentencing judge’s interpretation of “exceptional” had been too abstract. Exceptionality had to be judged in the context in which the question was being asked, with regard to Parliament’s intention and the need to avoid sentences which were arbitrary and disproportionate.
The possession of a prohibited weapon was normally a sufficiently serious offence to require the imposition of a term of imprisonment of at least five years for the purpose of deterring the commission of other such offences. If however, taking into account all the circumstances relating to a particular offence or a particular offender, such a term of imprisonment appeared arbitrary and disproportionate, that case was an exception to the norm.

Considering the present case in that context, the Court identified a number of factors which were particularly significant in determining the issue of exceptional circumstances [para 20]. One significant and unusual feature is that the pistol was a wartime souvenir which had been in the possession of the appellant’s father since the Second World War and had been found by the appellant amongst his effects. This was not a case of a weapon being deliberately acquired.

A second important and unusual feature is that the court has to proceed on the basis that the appellant did not know that her possession of the pistol was unlawful. A deterrent sentence will have no deterrent effect upon those who have no idea that they are doing anything wrong.

The appellant has already spent six weeks in prison as a consequence of the sentence appealed against. Bearing in mind the appellant’s early plea of guilty, the low risk of re-offending and her personal circumstances, the court concluded that it could appropriately impose an order for community service.

The court therefore quashed the sentence of five years’ imprisonment in respect of each charge and substituted an order requiring the appellant to perform 240 hours of community service.

The decision in this case was not unanimous. Lord Reed and Lord Marnoch supported the decision to allow the appeal, while Lord Carloway dissented.

NOTE

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for that decision. The full opinion of the Court is the only authoritative document.

You can read the full Opinion here.

LUKE MUIR MITCHELL V HMA

Wed, 02 Feb 2011 00:00:00 GMT

Luke Mitchell was convicted of the murder of his girlfriend Jodi Jones in January 2005. He was sentenced to detention without limit of time with a punishment part of 20 years. He appealed against both conviction and sentence. His appeal against conviction was refused in May 2008. He then appealed against the sentence imposed.

While Lord Gill concluded that the punishment part should be reduced to 15 years to take account of his age at the time of the offence; Lord Hardie and Lady Cosgrove were of the opinion that given that nature and circumstances of the crime the punishment part should remain at 20 years.

The appeal was therefore refused.

The full Opinion is now available at this location: http://www.scotcourts.gov.uk/opinions/2011HCJAC10.html

ATHIF SARWAR V HER MAJESTYS ADVOCATE

Thu, 10 Feb 2011 00:00:00 GMT

The appellant was convicted after trial on two charges under the Proceeds of Crime Act 2002 (in effect of “money laundering”). He was the managing director of a company (United Wholesale (Scotland) Ltd) which during the period of the charges (February to April 2003) carried on a wholesale cash and carry business on the south side of Glasgow. It was not in dispute at the trial that monies which had been the proceeds of crime (by others) had been passed through United’s business. What was principally in dispute was whether the appellant personally knew or suspected that these monies were the proceeds of crime.

At the trial the appellant contended that there was insufficient evidence in law that the appellant had such knowledge or suspicion. The trial judge rejected that contention and the case went to the jury, which convicted the appellant on both charges. In the appeal the appellant contended that the trial judge’s decision was erroneous. The appeal court has accepted that contention.

This has implications not only for the first charge but also for the second charge which, the appeal court has decided, the jury must have approached on an erroneous basis. The appeal has accordingly succeeded, the conviction on each charge being quashed.

The full Opinion of the court can be found here: http://www.scotcourts.gov.uk/opinions/2011HCJAC13.html

TESCO STORES LIMITED v DUNDEE CITY COUNCIL

Fri, 11 Feb 2011 00:00:00 GMT

Tesco Stores Ltd sought judicial review of a decision by Dundee City Council to grant planning permission for the development of an Asda superstore at Myrekirk Road, Dundee. The Lord Justice Clerk, sitting with Lord Emslie and Lady Smith agreed with the decision of the Lord Ordinary on 15 September 2010 and refused the petition.

The full Opinion can be found at here

MORRIS PETCH and ROBERT FOYE v HMA

Tue, 01 Mar 2011 00:00:00 GMT

In this case a court of seven judges has required to examine the approach which should be taken to the identification of the punishment part to be specified when a prisoner is sentenced, on a discretionary basis, to life imprisonment or when an order for lifelong restriction is made. The punishment part is the period which a life prisoner must serve in custody before he can first be considered for release on licence. These cases are not concerned with the punishment part where a prisoner is convicted of murder and is sentenced, mandatorily, to life imprisonment.

The issue, ultimately, was the interpretation of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act, as amended by Convention Rights (Compliance) (Scotland) Act 2001. That subsection (as so amended) gives rise to a number of difficulties of interpretation, not least as to the appropriate comparative exercise which requires to be carried out between the position of a life prisoner on the one hand and a prisoner sentenced to a determinate (fixed) number of years on the other. Differences of opinion have emerged among the judges as to the appropriate approach to that exercise.

A majority has decided that the effect of the statute is to require the court to follow the general approach approved by it in an earlier case (O’Neill v HM Advocate 1999 SCCR 300) – notwithstanding that, at least in some cases, this may have the apparently anomalous result that a prisoner sentenced to life imprisonment may become eligible for consideration for parole at an earlier stage than a prisoner sentenced to a determinate term for a like crime. The minority takes the view that the statute, properly interpreted, does not have that effect.

The judges believe that the present statutory provision is less than satisfactory. The Lord Justice General has suggested that the divisions of opinion expressed judicially in these appeals call for a clear, well-considered legislative solution.

A further consequence of the decision of the majority is that the decision in another earlier case (Ansari v HM Advocate 2003 JC 105) is overruled.

These appeals will now be remitted to a court of three judges for disposal in accordance with the existing law, as interpreted by the majority.

The Opinions can be found at http://www.scotcourts.gov.uk/opinions/2011HCJAC20.html

AXA General Insurance Ltd and Others v The Lord Advocate and Others

Tue, 12 Apr 2011 00:00:00 GMT

The First Division of the Court of Session has issued its judgment in the above case, in which the petitioning insurers (AXA and Others) challenge the lawfulness of an Act of the Scottish Parliament – the Damages (Asbestos-related Conditions) (Scotland) Act 2009. That Act provides that asbestos-related pleural plaques, and certain other asbestos-related conditions, constitute personal injury which is not negligible and is therefore actionable under Scots law. This statutory provision in effect reverses, for Scotland, the decision of the House of Lords in Rothwell v Chemical Insulating Co Ltd.

The challenge was on two bases: first, that the legislation was unlawful at common law and, secondly, that it infringed the insurers’ property rights under Article 1 of Protocol 1 to the European Convention of Human Rights. The court has rejected the challenge at common law. As to the challenge based on the Convention rights, it has held that the insurers’ rights are interfered with, but that in the whole circumstances that interference was justified. It has, accordingly, rejected the challenge also on that ground.

The court has also dealt with certain procedural challenges which were made by various parties.

The full Opinion will be available at midday:

http://www.scotcourts.gov.uk/opinions/2011CSIH31.

Luke Muir Mitchell v HMA

Fri, 15 Apr 2011 00:00:00 GMT

You can read the full Opinion here.

CRIEFF HIGHLAND GATHERING LIMITED v PERTH and KINROSS COUNCIL

Thu, 12 May 2011 00:00:00 GMT

In 1872 an unincorporated association known as the Crieff Highland Gathering was established. It aims were to promote the holding of an annual Highland Gathering in Crieff and to encourage other sporting activities in the area. In 1935 the pursuer was incorporated as a limited company to acquire the whole property and assets of the Crieff Highland Gathering. By that time the Gathering’s assets included an area of ground in the town of Crieff known as the Market Park; it was this area of land which was the subject of the litigation.

By a lease dated 11 and 26 May 1983, the pursuer let the land to the Perth and Kinross District Council for use as a public park and recreation ground. Following local government reorganisation, the defender now holds the tenant’s interest under the lease. In the action the pursuer sought declarator that, by notice sent to the defender on 22 January 2009, the lease was validly terminated on the ground that the defender was in material breach of certain of its obligations under the lease. The pursuer also sought decree ordaining the defender to flit and remove from the subjects. The defender denied that it was in material breach of the lease and maintained that, in any event, a fair and reasonable landlord would not, in the whole circumstances, seek to terminate the lease.

It was clear from the evidence that the background to the present proceedings lay in the parties’ conflicting views as to what the future should hold for the subjects. The pursuer’s position has for some years been that the subjects should be sold for development as the site for a Sainsbury’s supermarket. They have entered into option agreements with developers which, if implemented, would allow for the sale of the subjects and the development of an improved sports ground at Pittenzie Road in Crieff where future Highland Games would be held.

Following a public local inquiry in July 2006, outline planning permission was granted by a Reporter for these two developments, the defender having previously refused to grant such permissions. The defender, on the other hand, considers that the Market Park should be retained for use as public open space. It acknowledges that there is a need for a new supermarket in Crieff, but favours a site on land at Duchlage Farm, not far from the subjects.

It was not until November 2007 that there was any suggestion by the pursuer that the lease should be brought to an end on the basis that the defender was in material breach of its obligations. By notice dated 23 November 2007 the pursuer’s solicitors intimated what were described in their brief letter as “numerous wants of repair within the subjects which fall within the tenant’s responsibility in terms of the lease”.

While the Court concluded that the pursuer had proved that the defender was in breach of certain of its obligations under some provisions in the lease, both parties accepted that, in order for the pursuer to have validly terminated the lease, the defender must have been in material breach of its obligations.

Lord Pentland decided that in the present case none of the various breaches on the part of the tenants (whether viewed singly or cumulatively) could properly be said to have been material.

The fact that the Market Park had been run under the current arrangements without any significant difficulty for a period of 28 years since the inception of the lease indicated that the essence of the contract between the parties had not been undermined. The lease is a long one with over 30 years still to run.

Lord Pentland concluded that the pursuer had not established that the defender was now or had ever been in material breach of contract. It followed that the pursuer was not entitled to bring the contract to an end.

In any event, his Lordship considered that a fair and reasonable landlord would not have acted as the pursuer did in seeking to terminate the lease, even if the defender had been in material breach of contract.

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for that decision. The full Opinion of the Court is the only authoritative document.

Sinclair Collis Limited

Fri, 13 May 2011 00:00:00 GMT

The Petitioners own and operate tobacco vending machines. They are the largest such operator in the United Kingdom. They are a wholly owned subsidiary of Imperial Tobacco Limited. In this petition they challenged the legality of an enactment of the Scottish Parliament, namely section 9 of the Tobacco and Primary Health Services (Scotland) Act 2010. The Lord Advocate (the “First Respondent”) opposed the petition on behalf of the Scottish Ministers and for the public interest.

Section 9 contains a prohibition on having tobacco vending machines available for use on premises. It has not yet been brought into force. The petition contained three grounds of attack on section 9. The first two grounds were that it was outside the legislative competence of the Scottish Parliament to enact it because it was incompatible with Community law (Article 34 of the Treaty for the Functioning of the European Union (TFEU)); and that it was incompatible with the Petitioners’ Convention rights (Article 1 of the First Protocol (A1P1)of ECHR). The third ground was that section 9 was inapplicable and unenforceable because the United Kingdom had not notified it to the Commission of the European Communities in accordance with Article 8(1) of the Technical Standards Directive (Directive 98/34/EC). Shortly before the hearing commenced the Scottish Ministers decided to notify the terms of section 9 to the Commission on a protective basis, and as a result argument at the hearing related only to the first two grounds.

Article 34 TFEU regulates the free movement of goods between member states. It prohibits quantitative restrictions on imports between member states and all measures having equivalent effect. Article 36 provides that such restrictions may be justified in certain circumstances. The Petitioners argued that they imported from other member states tobacco vending machines for use in their business; and that an actual effect of section 9 would be to restrict such imports. They would cease. There was accordingly a breach of Article 34 which was not justified under Article 36. A less restrictive measure had been available which would have been equally effective in preventing under-age smokers from obtaining cigarettes from machines – namely using machines with radio frequency controlled mechanisms. The First Respondent argued that section 9 did not fall within Article 34 because it was a selling arrangement: and that even if it did, the enactment of section 9 was justified under Article 36.

A1P1 provides that every person is entitled to the peaceful enjoyment of their possessions. The Petitioners argued that section 9 infringed their right to peaceful enjoyment of their assets and that the interference was not justified or proportionate. The first Respondent argued that any interference was justified and proportionate.

The Lord Ordinary (Lord Doherty) held that the Parliament had been entitled to enact section 9 and that neither the Community law challenge nor the Convention rights challenge were well founded. Section 9 was justified in the public interest for the protection of health and life. It was appropriate and proportionate. It had been open to the Parliament to reject the suggested alternative as less satisfactory and effective. It was unnecessary to decide whether section 9 fell within the scope of Article 34 because it was justified under Article 36. Had such justification been absent it would have been necessary to seek a preliminary ruling from the Court of Justice of the EU on the Article 34 issue.

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for that decision. The full Opinion of the Court is the only authoritative document.

Howes and Howes against the Lord Advocate and The Scottish Ministers

Fri, 29 Jul 2011 00:00:00 GMT

These three appeals relate to extradition orders made by the Scottish Ministers in terms of the Extradition Act 2003 (as amended), ordering the extradition of the two appellants to the United States of America in order that they face trial in Arizona on charges of conspiring to import chemicals into the United States in the knowledge, or having reasonable cause to believe, that the chemicals would be used to manufacture methamphetamine, a controlled drug.

In the first two appeals, the appellants, Mr. H and Mrs. H (formerly Miss S), have appealed against decisions taken by Sheriff McColl dated 3 April 2008 to send their respective cases to the Scottish Ministers for the Scottish Ministers’ decision as to whether Mr. H and Mrs. H are to be extradited.

The third appeal is at the instance of Mr. H, who has appealed against the extradition order made in respect of him by the Scottish Ministers on 29 May 2008.

The Appeal Court, constituted by Lord Osborne, Lord Reed and Lord Mackay of Drumadoon, has found that certain of the offences of which both appellants stand charged in the United States of America are extradition offences, and that the appellants have failed to establish that their extradition on those offences would violate their rights under the European Convention on Human Rights.

The court has, however, allowed the appeals at the instance of Mr. H and Mrs. H against the decisions of Sheriff McColl, in relation to certain other offences in the indictment they face in the United States of America, on the ground that those particular offences do not constitute extradition offences. In respect of those offences only, the court has allowed the appeals of Mr. and Mrs. H and has ordered their discharge and quashed the orders for their extradition. Otherwise the court has dismissed the appeals of Mr. and Mrs. H against the decisions of Sheriff McColl.

The court has also dismissed the appeal at the instance of Mr. H against the decision of the Scottish Ministers.

As a consequence, the extradition orders made by the Scottish Ministers on 29 May 2008 in respect of both Mr. and Mrs. H stand, subject to the deletion from those orders of any reference to the particular offences which are not extradition offences.

The proceedings arise from a request by the United States of America for the extradition of Mr. and Mrs. H to face trial on an indictment in a Federal Court in Arizona. The indictment against both of them libels charges of conspiracy and unlawful importation into the United States of chemicals knowing or having reasonable cause to believe that the chemicals would be used to manufacture methamphetamine, a controlled drug.

The appeals raise a number of issues in relation to the law of extradition, including the question whether the extradition of Mr. and Mrs. H would be incompatible with their Convention rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as given effect by the Extradition Act 2003 and the Scotland Act 1998.

The proceedings, both in the Sheriff Court and before the High Court of Justiciary have been protracted. On 3 April 2008 Sheriff McColl issued her decision to send the appellants’ cases to the Scottish Ministers for their decision on whether the appellants should be extradited. On 29 May 2008 the Scottish Ministers made extradition orders in respect of each appellant. Notes of appeal were subsequently lodged in the High Court of Justiciary on 11 June 2008. Numerous delays followed, due in part to frequent changes of counsel by the appellants, and the illness and pregnancies of Mrs. H. On 28 April 2011 the hearing of the appeals was finally concluded.

The court has taken the view that the offences to which the extradition requests relate are of an extremely serious nature. Mr. and Mrs. H are alleged to have sold chemicals to clandestine laboratories in the United States, knowing that the chemicals would be used to manufacture methamphetamine, a controlled drug; soliciting business of that kind; and deliberately mislabelling the chemicals they sent to the United States in order to avoid detection. This conduct is alleged to have been persisted in over a period of years, despite searches of the appellants’ premises, the seizure of evidence, and a warning to desist by the United State authorities. The highly dangerous nature of methamphetamine is reflected in the fact that it has, since 2007, been classified in the United Kingdom as a Class A drug in terms of the Misuse of Drugs Act 1971.

At least 70 methamphetamine laboratories in the United States are alleged to have been supplied by the appellants. Documents lodged in support of the requests for extradition indicate that approximately 1330lb of methamphetamine, with a street value of $13.3m, could have been produced using the chemicals supplied by the appellants. Mr. and Mrs. H are said to have received approximately $132,922 for the sale of such chemicals.

The appeal court was satisfied that the charges set out in paragraph 12(c) of Count 1 and Counts 34 to 82 on the United States indictment, which Mr. and Mrs. H face, were constituted by conduct which would not amount to any offence under the law of Scotland. It followed that those particular offences are not extradition offences. On that ground the appeals against the decisions of Sheriff McColl required to be allowed, in respect of those particular offences and to the extent of ordering the discharge of Mr. and Mrs. H and quashing the orders for their extradition in respect of those offences.

In deciding whether the extradition orders made by the Scottish Ministers were incompatible with the appellants’ rights under the Convention, the court gave careful consideration to Article 8 of the European Convention: the right to respect for private and family life. It noted that the appellants’ extradition might have serious consequences for their children. When doing so, the court followed the guidance given by the Supreme Court in the case of Norris v Government of the United States of America (No 2) in 2010, in which the Supreme Court held that the interference with private and family life consequent upon extradition would be proportionate in all but quite exceptional circumstances. In the opinion of the Supreme Court such interference was warranted because extradition is part of the process for ensuring that those reasonably suspected of crime are prosecuted and, if found guilty, sentenced.

The offences with which Mr. and Mrs. H are charged are very serious. The offences involve criminal conduct with an international dimension, The court also noted that it had to proceed on the basis that Mr. and Mrs. H are accused equally of having committed these offences. It was not suggested on behalf of the appellants that there was any basis upon which the court could properly treat one of them as having been involved to any lesser extent than the other.

The court noted that the effect of the appellants’ extradition on the children is difficult to predict, in so far as it depends on the outcome of the proceedings in the United States. It is also difficult to predict what arrangements may be made for the care of the children, partly as a result of the unwillingness of Mr. and Mrs. H to co-operate in identifying potential carers, although they both have extended families. The court proceeded on the basis that there is a risk that the children may require to be taken into care and that there is a risk, in that eventuality, that they may require to be separated. The court observed that it is a sad, but unavoidable, fact of life that the consequences of criminal proceedings often affect the family of the wrongdoer more severely than the wrongdoer themself.

Applying the clear and authoritative guidance given by the Supreme Court in the case of Norris, and having regard to the seriousness of the offences charged, the court came to the conclusion that the interference with private and family life which would result from Mr. and Mrs. H’s extradition was proportionate and that neither of the appellants was entitled to be discharged from the extradition orders made by the Scottish Ministers. In these circumstances the court dismissed the appeals against the decisions of Sheriff McColl.

The court has also dismissed the appeal at the instance of Mr. H against the decision of the Scottish Ministers. It held that the Scottish Ministers had not erred by making an extradition order in respect of Mr. H in the absence of any arrangements that Mr. H would not be prosecuted in the United States for any offences additional to those specified in the extradition order of 29 May 2008. The court reached that decision having been provided with a written assurance on behalf of the Government of the United States, dated 26 May 2009, that Mr. H would not be prosecuted for any charges other than those set forth in the indictment.

As a consequence the court has ruled that the extradition orders made by the Scottish Ministers on 29 May 2008 in respect of each appellant should stand, subject to the deletion from those orders of any reference to the non - extraditable offences in paragraph 12(c) of Count 1 and Counts 34 to 82 of the indictment in the Federal Court in Arizona.

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for that decision. The full report of the Court is the only authoritative document.

The full opinion is available on the Scottish Courts website at this location:
http://www.scotcourts.gov.uk/opinions/2011HCJAC77.html

WALTON and FRASER v DECISION of SCOTTISH MINISTERS

Thu, 11 Aug 2011 00:00:00 GMT

For the reasons set out in the full Opinion, Lord Tyre has refused these appeals.

These two appeals, which were heard together, were brought under Schedule 2 to the Roads (Scotland) Act 1984. They concern a decision of the Scottish Ministers to make a number of road orders and schemes in connection with the construction of an Aberdeen Western Peripheral Route (AWPR). The respondents’ decision was published on 21 December 2009 following a public local inquiry held in 2008. The report of the inquiry was published on 30 June 2009.

The appellants in both appeals argued that the procedure had been unfair because the inquiry held in 2008 was given an unreasonably restricted remit. They argued that in order to comply with the Aarhus Convention on public participation in decision-making with consequences for the environment, objectors had to be given an opportunity at the inquiry to challenge the inclusion in the proposed AWPR scheme of a link - known as the Fastlink - running from a junction near Peterculter south to Stonehaven. They also argued that, regardless of the Aarhus Convention and EU law, it was procedurally unfair that no opportunity was given to objectors to challenge the need for the Fastlink at the inquiry.

Lord Tyre rejected these arguments and held that sufficient opportunities had been given prior to the commencement of the inquiry for public representations to be made regarding the need for the AWPR, and that the decision of Scottish Ministers to proceed with a "hybrid" of two previous potential routes did not require them to open up the need for the Fastlink to scrutiny at the inquiry. The Scottish Ministers were therefore entitled to restrict the scope of the inquiry to technical and environmental issues connected with the particular line which was proposed for the road to follow.

There were also two separate challenges based upon obligations incumbent on Scottish Ministers under the Habitats Directive. One related to the impact of the scheme on the River Dee Special Area of Conservation (SAC), the other to the disturbance of European protected species (otters and five species of bat). The appellants argued that in neither case had the Scottish Ministers properly addressed the rigorous requirements which must be met before a project which has an adverse effect on a SAC or which results in the disturbance of protected species, can proceed. Again the court rejected these arguments and found that the Scottish Ministers did sufficiently address all of the relevant requirements.

In the appeal by Mr and Mrs Fraser it was argued that their rights under Article 6 of the European Convention on Human Rights (ECHR) were breached because there was no statutory provision which would have enabled them to receive state-funded legal representation at the inquiry, and that this prevented their case from being effectively presented. While the court decided that the inquiry did amount to a determination of their rights under Article 8 ECHR (right to respect of private and family life), though not of their rights under Article 1 of the First Protocol to the ECHR (right to peaceful enjoyment of possessions), it did not consider that legal representation was crucial in order for their case regarding loss of amenity at their organic/biodynamic farm, due to the construction and operation of the road, to be effectively presented at the inquiry. The court therefore rejected this argument.

The full Opinion of Lord Tyre can be viewed here.

DOCHERTY, PHILBIN AND LOGAN v SCOTTISH MINISTERS

Fri, 02 Sep 2011 00:00:00 GMT

Lord Hamilton, Lord Wheatley & Lady Smith

Each of the pursuers in these actions was for a period held at Barlinnie Prison, Glasgow in conditions incompatible with his rights under Article 3 of the European Convention of Human Rights – in respect of “slopping out”. Each subsequently raised an action against the Scottish Ministers in Glasgow Sheriff Court in which he sought “just satisfaction” (essentially damages) for that infringement. The actions were in each case raised more than 5 years after the relative infringement had ceased.

In the sheriff court the Scottish Ministers successfully argued that the claims were barred because they had not been brought within 5 years of the cessation of the infringement. The pursuers appealed that decision to the Court of Session.

At the outset of the hearing counsel for the Scottish Ministers invited the court to dismiss the actions on the basis that the pursuers had chosen the wrong form of process in which to pursue their claims. It was suggested that a remedy of the kind sought could only be obtained by raising judicial review proceedings in the Court of Session. Having heard parties, the court rejected that suggestion.

It then went on to hear argument as to whether the actions were time-barred. It has now held that they were not – on the ground that the 5-year time-bar relied on does not apply to the claims advanced. In particular, it has held that the “public law remedy” available under the Scotland Act to those who have suffered damage as a result of infringement of human rights by the Scottish Ministers is not caught by the statutory provision which imposes the time-bar on claims rested on an “obligation arising from liability to make reparation”.

The appeals have accordingly been allowed. These cases will be remitted to the sheriff to determine what just satisfaction each pursuer is entitled to.

The full Opinion is available here

ANTHONY PHEE v JAMES GORDON and OTHERS

Fri, 04 Nov 2011 00:00:00 GMT

In this action the pursuer Anthony Phee seeks damages for injuries sustained when he was hit by a golf ball while playing a round of golf. The first defender, James Gordon, is the person who struck the golf ball which hit Mr Phee causing him to sustain injury. The second defenders are the members of the golf club who occupied and operated the golf course where the accident occurred. The pursuer maintains that his loss and damage was caused as a result of fault on the part of the first defender. The case against the second defenders was based on a breach of obligation.

On 10 August 2007 the pursuer was playing golf at Niddry Castle Golf Course, Winchburgh, West Lothian. The pursuer was playing golf in the company of three of his workmates having been admitted as guests at the instigation of a member. That member did not accompany them on their round of golf. The pursuer had never played the golf course before. His three companions had played the course, or at least part of it, on one previous occasion.

The pursuer was the victim of a serious accident which occurred when he was struck by a golf ball which had been driven by the first defender, James Gordon. The locus of the accident was a spot on a path leading between the 6^th green and 7^th tee, approximately 15 metres or thereby short of the 7^th tee. They were following a path which had been created or developed by usage along the edge of the 18^th fairway.

The path was narrow, being bounded on one side by the 18^th fairway and on the other by gorse bushes. The 18^th tee was facing them. A person driving a golf ball from that tee would strike the ball down the 18^th fairway, the ball travelling in the general direction of the pursuer and his playing companions.

At the point where the accident happened the group, including the pursuer, were approximately 150 yards from the 18^th tee. The 18^th tee was elevated and stood 6 metres in height or thereby above the level where the group of four were walking. The defender was aiming at a target area approximately 200 yards in front of the tee and at least 65 yards left of the pursuer. His shot was a bad one and he immediately became aware that it had veered sharply to the left and was therefore travelling directly in the direction of a group of golfers, the pursuer and his three companions, whom he could see in the distance approaching the 7^th tee.

When Mr Gordon arrived at the 18^th tee on the day in question he made the error of overestimating the likelihood of his tee shot following its desired or intended path to its intended target and, simultaneously, underestimating the degree of risk to which his shot would place the pursuer and his three companions then proceeding on the path between the 6^th green and the 7^th tee. On the basis of his own evidence these errors were caused by an inflated degree of confidence.

As a result of this overconfidence Mr Gordon made his tee shot at a time when the exercise of reasonable care should have informed him that there was a foreseeable risk that his shot might be bad and might encroach on the area being crossed by the pursuer.

The court considers that these risks should have been within the contemplation of Mr Gordon because he should have appreciated that every golfer, no matter his or her degree of competence, will make bad shots. Further he should have appreciated, as a matter of commonsense if nothing else, that the lower the degree of skill of a golfer the more likely there is to be a bad shot. He should have appreciated that, at the material time, he was a golfer of, at best, moderate skill and therefore he was more likely than a more skilled golfer to make a bad shot.

Lord Brailsford therefore found that primary liability for the accident sustained by Mr Phee rests with Mr Gordon, the first defender.

Regarding the second defenders, the golf club, the court considered their attitude in assessing risk unduly restrictive and by failing to take a more proactive approach, the second defenders were failing in a duty owned to persons coming on to the course.

Expert evidence indicated that signs would have been a proper and effective way to draw risk to the attention of golfers and that such signs, had they existed, would have been likely to have been heeded. The court accordingly formed the view that the failure to provide signs either at the 18^th tee or in the area between the 6^th green and 7^th tee was a failure of duty by the second defenders.

Approaching the matter of responsibility the court found that primary responsibility lies with the first defender, Mr Gordon, whose failure lay in failing to exercise reasonable care in the execution of his drive shot. It found that he was 70% responsible for the accident which occurred and that the remaining 30% of liability rests with the second defender for their failure to place signs at appropriate places on this golf course.

Damages will be determined at a future hearing on a date yet to be fixed.

Read the full Opinion here

SCOTTISH MINISTERS v RUSSELL STIRTON and ALEXANDER ANDERSON

Tue, 24 Jan 2012 00:00:00 GMT

In this action Scottish Ministers sought a recovery order under the Proceeds of Crime Act 2002. That act provides for recovery by Minsters of property which has been proved to have been obtained by unlawful conduct. It is a civil law procedure and does not require conviction of any crime. If the court is satisfied that property is recoverable property as defined, then it must make a recovery order. Recoverable property is defined as property obtained through unlawful conduct.

Mr Stirton and Mr Anderson were investigated by the police between 2003 and 2005 in Operation Maple, a police operation concerned with allegations of money laundering and of extortion. They appeared on petition and were released on bail. No indictment was ever served on them.

The proof was heard between 19 May 2009 and 20 May 2011. During that period the court sat on over 130 days, either to hear evidence or argument in the course of evidence.

The unlawful conduct which the Scottish Ministers have proved to have taken place comprises involvement in the importation of controlled drugs and a handgun; involvement in unlawful conduct evidenced by possession of a large quantity of cash in circumstances redolent of involvement in controlled drugs; extortion of money from Spring Radio Cars; laundering of money by buying cars using cash obtained from unlawful conduct and obtaining money for the resale of the cars, and laundering of money by developing a filling station using money obtained from unlawful conduct, then operating and ultimately selling the filling station; and fraud on lending institutions by falsely declaring income and ownership of assets.

The court found that there is recoverable property and will make a recovery order over money and property being satisfied that there had been unlawful conduct consisting of involvement in importation of controlled drugs and a firearm, extortion, fraud and money laundering. The court found that the money and property was acquired as a result of that unlawful conduct.

Scottish Minsters will identify a person suitable to be appointed as trustee and an interlocutor will be issued outlining the terms and extent of the recovery order.

If the respondents wish to appeal to the Inner House of the Court of Session the time limit for an appeal will start when the interlocutor making the recovery order is issued

The full Opinion is now available here

JULIE ANNE PHILLIPS or ZELENT against ALAN SAVAGE

Wed, 14 Mar 2012 00:00:00 GMT

This is an action in which the pursuer seeks payment of a capital sum from the defender in terms of section 28(2)(a) of the Family Law (Scotland) Act 2006.

The pursuer having sustained no economic disadvantage in the interests of the defender and the defender having derived no economic advantage from financial or non financial contributions of the pursuer, the pursuer is not entitled to payment of a capital sum in terms of Section 28(2)(a) of the Family Law (Scotland) Act 2006

The Sheriff concluded that the pursuer deliberately misled a number of people including the court, the defender, her own solicitors and her experts in her prosecution of this action.

For these reasons a copy of this judgment is to be passed to the Scottish Legal Aid Board for consideration.

The full decision is available here.

RANGERS FOOTBALL CLUB PLC

Fri, 23 Mar 2012 00:00:00 GMT

In an urgent application to the court by the joint administrators of Rangers Football Club plc for directions under the Insolvency Act 1986, Lord Hodge issued an opinion today.

The administrators asked to be given directions on whether they could be prevented from terminating the contracts which Rangers entered into in May 2011 with two limited liability partnerships (“Ticketus”) by which Rangers sold large numbers of season tickets for matches at its Ibrox stadium in each of the seasons from 2011-2012 until 2014-2015.

The directions which the administrators sought were first:

“as to whether the administrators can be prevented from causing [Rangers] to terminate, albeit in breach of their terms, the [Ticketus agreements].”

After discussion in court they asked the court, in the alternative, to give:

“a direction as to the legal nature of the rights which the agreements confer on Ticketus in respect of (i) the Company’s Stadium, and (ii) the proceeds of future sales of season tickets for that Stadium;”

and

“a direction as to the legal test which is to be applied by [the] administrators or by the court in determining whether those administrators can be prevented from causing the company to terminate the agreements, albeit in breach of their terms.”

Having heard argument from counsel over several days, Lord Hodge declined to give a direction on the first matter as he considered that the court had not been given sufficient information to allow it to make such a ruling.

On the first alternative direction, having heard submissions as to whether Scots law or English law determined whether a trust had been created in the income from the season tickets, Lord Hodge held that Scots law was the governing law. He directed that under Scots law Ticketus’ interests in seats at the Ibrox stadium, the tickets and the sale proceeds of those tickets were purely contractual rights and were not trust rights which would prevail over ordinary creditors in an insolvency.

On the second alternative direction Lord Hodge declined to state a test to be applied in all circumstances but discussed the circumstances in which the courts might order an administrator to perform a contract. He summarised his views as follows:

“(i) an administrator must perform his functions in the interests of the company’s creditors as a whole (subject to the qualification in paragraph 3(4) of Schedule B 1 which is not relevant in this case); (ii) where the company in administration is insolvent, an administrator may have to decline to perform a contractual obligation of the company in pursuit of the statutory objective or objectives in his proposals if that is in the interests of the company’s creditors as a whole; (iii) should he do so, the court would not, absent exceptional circumstances, force the company to perform those contractual obligations to the detriment of the creditors as a whole; (iv) the court has power to interfere under paragraph 74 of Schedule B1 if the administrator’s decision is conspicuously unfair to a particular contractor or creditor; but (v) treating unsecured creditors in accordance with their legal rights in an insolvency would not of itself involve such unfairness.”

The full Opinion is available here.