Robert Howie KC

SIDLEY v CLACKMANNANSHIRE COUNCIL (2010) Eu.L.R.647
Procurement case on a contract the value of which was below threshhold levels.  Whether Community rights engaged where Council nevertheless issued a tender questionnaire including questions directed to foreign tenders.  Whether action by disappointed tender who lost contract because of mistakes in Council treatment of tenders could sue for damages in ac action or had to petition for judicial review.

EDUCATION 4 AYRSHIRE LTD v SOUTH AYRSHIRE COUNCIL (2010) [26 Const. L.J.] 327
P.F.I. Service contract for construction and operation of school drawn on H.M.Treasury/Scottish Executive standard terms amended by parties.  Failure to serve on Council timeous notices drawn in correct terms held fatal to claim for additional payment.  Counterclaim for repayment of adjudicator’s award in favour of S.P.V. granted.

ROYAL INSURANCE (UK) LTD v AMEC CONSTRUCTION (SCOTLAND) LTD [2008] BLR 58; 2009 SCLR. III
Subsequent to the decision in 2006, it was discovered that, prior to the raising of the action, the pursuer had transferred the supposedly damaged property to beneficiaries for whom it now held it under an English bare trust.  Discussion whether the pursuer had title to sue and whether the action was competently raised, there being no mention of the pursuer’s capacity as trustee in the instance of the Summons.  The pursuer later sought to amend to cure the defect in the instance of the action.  Subsequent hearing as to whether the defect was curable or the rights of the trustee had in the interval prescribed.

SPIERSBRIDGE PROPERTY INVESTMENTS LTD v MUIR CONSTRUCTION LTD 2008 SCLR 762
Pursuer employer had made a call on a performance bond issued by the defender contractor.  Though the pursuer received payment, the defender contended that the call had been bad and sought repayment under an implied term of the bond.  Discussion of implied terms in Scottish performance bonds.

ANM GROUP LTD v GILCOMSTOUN NORTH LTD [2008] BLR 481
Action anent allegedly defective building work.  Discussion following preliminary proof about whether pursuer’s rights to damages, if any, had prescribed on the basis of prima facie prescription  and, if so, whether the pursuer had established a deferment of the starting date for prescription under s.11(3) of the Prescription and Limitation (Scotland) Act, 1973.  Discussion of approach to prescription where different defects alleged in the building.

ROYAL INSURANCE (UK) LTD v AMEC CONSTRUCTION (SCOTLAND) LTD [2006] PNLR, 12
Dispute about defective work allegedly carried out in an office refurbishment.  Partial dispute arose as to whether pursuer was entitled to recover for its alleged loss as that loss had apparently been made good to it through payments made by others.  Discussion of The ‘Endevour’.

MELVILLE DUNDAS LTD (in receivership) v GEORGE WIMPEY (UK) LTD 2005 S.L.T 24 [2006] BLR 164; [2007] BLR 257
The first case on the Housing Grants, Construction & Regeneration Act, 1996 to reach the House of Lords, this case was concerned with the tension between the Act’s provisions about withholding notices and the law on insolvency and contractual provisions on determination in the JCT 80 building contract with contractors’ Design Portion.

ROBERTSON CONSTRUCTION GROUP LTD v AMEY MILLER (EDINBURGH) JV [2005] BLR. 491;2006 SCLR 772
P.F.I.  Scheme: Construction of a school.  Letter of intent, which did not mature into a contract, allowed for recovery of “direct costs”.  Dispute about true construction of the phrase in letter of intent, and in particular, whether it allowed for recovery of loss of profit.

JOHN DOYLE CONSTRUCTION LTD v LAING MANAGEMENT (SCOTLAND) LTD [2004] B.L.R 295
Discussion of the pleading requirements for a successful “global” claim for loss and expense or extension of time.  Whether, in the absence of proof of a casual link between breaches of contract and loss, the Court might apportion loss between competing causes.

WILSHIER CONSTRUCTION (SCOTLAND) LTD v DRUMCHAPEL HOUSING ASSOCIATION 2003 SLT 443
Construction of Building Contract issue arising on a stated case from an arbiter.  Whether employer or contractor liable for costs incurred in securing the site against vandalism etc.

NEWMAN SHOPFITTERS LTD v M.J.GLEESON GROUP PLC 2003 SLT (Sh. Ct) 83
The case concerned the possibility of dismissing an action on account of long delay in its prosecution.  An action was restarted in a building contract case following a sist of some seven years to allow an arbitration to take place, which arbitration had never in fact got underway.  When the Pursuer restarted the action, the Defender argued that it should be thrown out on account of the prejudice caused the Defender by the long delay caused by the Pursuer.  The Sheriff-Principal assoilzied the Defenders, holding that it was open to the Sheriff Court to assoilzie a Defender prejudiced by a Pursuer’s delay in prosecuting his action.

BARRY D. TRENTHAM LTD v LAWFIELD INVESTMENTS LTD 2002 SC 401
Arrestment on the dependence of an action to recover money said to be due under a building contract.  The case concerned what the Pursuer would need to be able to aver to secure such arrestment in the wake of the Karl Construction decision.

SL TIMBER SYSTEMS LTD v CARILLION CONSTRUCTION LTD [2001] BLR 576
Whether money could be withheld as ‘abatement’ if notice not served under sections 110 and 111 of Housing Grants, Construction & Regeneration Act, 1996.  Whether error in that regard by adjudicator rendered decision invalid as a failure to exhaust the reference or was a mere error of law.  Whether payment of a decision could be resisted on account of pursuer’s financial condition

LOUDONHILL CONTRACTS LTD v JOHN MOWLEM CONSTRUCTION LTD 2001 SLT 253
Construction of Civil Engineering Contract

STIELL LTD v RIEMA CONTROL SYSTEMS LTD 2000 SC 539; [2001] 3 TCLR 9
Appeal from Sheriff Court on question whether Pursuer could competently arrest on dependance of an action to secure payment of debt which an adjudicator under the Housing Grants, Construction & Regeneration Act, 1996 had decided was not due.

BRITISH TELECOMMUNICATIONS P.L.C v JAMES THOMSON (ENGINEERS) LTD [1999] 1 WLR 9, 1999 SC (HL) 9
JCT 80 Standard Form of Building Contract Insurance against specified perils in relation to damaged wrought to existing structures during execution of contract works.  Fire allegedly cause by domestic sub-contract damaging such structures.  Whether absence of waiver of subrogation rights against domestic sub-contractor implied that it owed duty of care to employer to avoid causing damage to existing structures by fire.

ERDC CONSTRUCTION LTD v H.M.LOVE & CO (NO 2) 1997 SLT 175
Powers of arbiter to control procedure before him.  Whether he was precluded from dealing with Minute of Amendment.

BARRY D. TRENTHAM LTD v MCNEIL 1996 SLT 202
JCT 80 Building contract.  Inconsistency between Appendix to Contract and Bills on one hand and Standard form of Contract on the other.  Precedence as between portions of building contract.  Clause 2.1 of JCT 80 Form.

ERDC CONSTRUCTION LTD v H.M.LOVE & CO 1994 SC 620
Arbitration in building contract dispute.  Construction of submissions to arbitration to discern extent of arbiter’s jurisdiction.  Whether contractor entitled to recover on a quantum meruit basis where employer in breach of contract, but contract not rescinded.

W.J.HARTE (CONSTRUCTION) LTD v SCOTTISH HOMES 1992 SLT 948
Construction of a contract for construction of buildings.  Actual work carried out by second company related to that which was party to the building contract.  Consideration as to whether there had been novation of the building contract or mere delegation of the work.

CSC BRAEHEAD LEISURE LTD v LAING O’ROURKE SCOTLAND LTD 2008 SLT 697
Third Party Notices.  Considerations for Court in determining whether leave to issue such notices should be given in commercial action: likelihood of overloading and slowing pursuer’s action compared to fairness to defender in dealing with sub-contractor and main-contractor disputes along with employer-contractor disputes related to them.

FG HAWKES (WESTERN) LTD v SZIPT (JIANGSU IMPORT AND EXPORT) LTD, MARCH 2007 (unreported)
Action for freights raised in France.  Section 27 Civil Jurisdiction and Judgements Act, 1982 arrestment of discharged cargo.  Questions as to whether arrestment should remain in place as showing prima facie case when Court faced with competing evidence about the content of the foreign governing law and the relative strength of the parties’ cases there under.

THE SCOTTISH LION INSURANCE COMPANY, LTD, PETITIONER 2006 SLT 606
A Scheme of Arrangement of insurance company’s liabilities to policyholders under section 425 of the Companies Act, 1985 did not proceed.  Case concerns whether opposing creditors were entitled to additional fees on expenses, and as to whether work done by English solicitors could qualify for an additional fee.

CALEDONIA SUBSEA LTD v MICOPERI SRL 2003 SC 70
Jurisdiction dispute turning on the choice of law by which to judge ‘place of performance of the obligation in question’.  No actual choice of law in contract.  Dispute as to whether presumption in Article 4 (2) of Rome Convention to be disregarded under Article 4 (5).  Preliminary proof held and then reclaimed.

BARRY D. TRENTHAM LTD v LAWFIELD INVESTMENTS LTD 2002 SC 401
Arrestment on the dependence of an action to recover money said to be due under a building contract.  The case concerned what the Pursuer would need to be able to aver to secure such arrestment in the wake of the Karl Construction decision.

ASTILLEROS ZAMAKONA S.A. v MESSRS MACKINNONS 2002 SLT 1,206
Dispute anent jurisdiction relative to solicitor’s obligations under joint deposit agreement supplementary to shipbuilding contract.  Issue as to whether exclusive jurisdiction clause in shipbuilding contract was incorporated into supplemental agreement and able to be pleaded by the solicitors in light of Coreck Maritime GMBH v Handelsveem BV.

SCOTTISH POWER GENERATION LTD v BRITISH ENERGY GENERATION (UK) LTD (reported on appeal at 2002 SC 517)
A lengthy case about the effect on a long-term contract for the supply of nuclear electricity of the statutory abolition of the pool on the basis of the existence of which the pricing mechanism in the contract had been set up.  The Pursuer sought the setting up of a trust by the Court under section 47 of the Court of Session Act, 1988, into which payments it was making at levels above what it said was the true price should be paid pending the outcome of the action.  In this part of the case, the Court considered, and in the Inner House set down, what have now become the recognised criteria for the grant of interim orders under s.47 of the 1988 Act.

FERGUSON SHIPBUILDERS LTD v VOITH HYDRO GMBH 2000 SLT 229
Contract for manufacture and sale of ship’s engines.  Dispute about jurisdiction and choice of law giving rise to preliminary proof on contract formation and a “battle of the forms”.

THOAR’S JUDICIAL FACTOR v RAMLORT LTD 1999 SLT 1,153
Judicial Factory on insolvent estate suing to recover alleged gratuitous alienation in favour of English company under section 34 Bankruptcy (Scotland) Act, 1985.  Issue as to whether Scottish Court had jurisdiction to hear case on basis that judicial factory was Scottish even though the defender was not domiciled in Scotland.

EUROCOPY (SCOTLAND) PLC v LOTHIAN HEALTH BOARD 1995 SLT 1,356
Construction of contract for hire of photocopier.  Application of the principle from The “Antaios” to construction of commercial agreement to prefer commercial interpretation over literal one.

MARTIN’S TRUSTEE v MARTIN 1994 SLT 261
Recall of Sequestration.  Whether case could be brought more than ten weeks beyond date of sequestration. Bankruptcy (Scotland) Act, 1985

EUROCOPY RENTALS LTD v MESSRS MCCANN FORDYCE 1994 SLT (Sh. Ct) 63
Construction of contract for hire of photocopier, and in particular, the termination procedures therein.  Issue as to whether the Pursuer could terminate other than by way of the termination procedures for which it had provided in the contract.

EAE PROPERTY Ltd v EAE (RT) LTD 1994 SLT 627
Interdict of Irritancy notice under commercial lease for failure to comply with statutory requirements.  Also issue as to whether notice served by fax complied with the contractual demands of the lease as regards service of rent review notices.

ROXBURGH DINARDO & PARTNERS’ JF v DINARDO 1993 SLT 16
Scheme of division of estate in judicial factory.  Whether judicial factor was entitled to apply interest at a compound rate as against former partner who had used former partnership assets.

GRAHAM v JOHN TULLIS & SON (PLASTICS) LTD (NO 2) 1992 SLT 514
Insolvency of limited company.  Petition to wind-up company refused in Sheriff Court for want of title to petition.  Award of expenses.  Whether terms of Insolvency (Scotland) Rules called for award to be made out of assets of the company irrespective of petition’s failure.

CRAWFORD v BRUCE 1992 SLT 524
A dispute regarding the rent review provisions in a commercial lease and whether there could be implied therein a term as to the basis of measurement of the rent to be thus reviewed.

ACCOUNTANT IN BANKRUPTCY v ALLANS OF GILLOCK LTD 1991 SLT 765
Judicial Review of decision of Sheriff under Bankruptcy (Scotland) Act, 1985 s.63 purporting to alter the date of sequestration in bankruptcy proceedings.

STIRLING FINANCIAL SERVICES LTD v JOHNSTON 1990 SLT 111
Competition Law.  Question as to whether a restrictive covenant was unenforceable because of a failure to comply with Restrictive Trade Practices Act, the agreement containing the restriction not being registered under that Act.

RUTTERFORD LTD v ALLIED BREWERIES LTD 1990 SLT 249
Missives dispute as to status of qualified acceptance as a rejection and counter-offer.  Secondary question as to homologation of missives

CLIPPER SHIPPING CO. LTD v SAN VINCENTE PARTNERS 1989 SLT 266
Arrestment of vessel on the dependence of action brought in Denmark.  Considerations for the grant of warrant to arrest under section 27 of Civil Jurisdiction & Judgements Act, 1982 discussed and guidance as to material to be put before the Court given.

POW v POW 1987 SC 95
Arrestment on the dependence in relation to future debt.  Meaning to be given to the phrase vergens ad inopiam as a ground for such arrestment.

FISH & FISH LTD v SEA SHEPHERD UK 2012 SLT 196
Recall of Arrestment of vessel used by environmental pressure group.  Whether “damage done by a ship” for purposes of  s.47 (2) Administration of Justice Act. 1956 where tuna nets rammed by vessel and cut by persons from Zodiacs launched from the vessel.  Whether tuna which escaped from nets or gave rise to the loss of “goods carried in any ship” within s.47 (2) (f), where those tuna had been in net cages towed by a ship before the nets were cut.  Use of French text to aid statutory interpretation.

THE “FAR SERVICE” (SCOTLAND) [2010] 2 LLR 387
Action by shipowners seeking damages for damage to supply vessel cause by fire.  Matter taken to Supreme Court about whether defenders could convene a third party or whether an indemnity given that party by the purusuer meant that the third party was not liable to make contribution for any loss it, along with the defender, might have caused the pursuer.  Further issue about construction of the indemnities and the defence frustra petis quod mox restiturus es.

STEPHEN v SIMON MØKSTER SHIPPING A.S. 2008 S.L.T. 743
Action concerning personal injuries sustained in a collision between fishing boat and a supply vessel.  Discussion as to whether action was competently brought under Chapter 43 of the Rules of Court as a personal injuries case or whether it could only be brought as an admiralty case under chapter 46 because it arose out of a collision between ships.

AIR & GENERAL FINANCE LTD v RYB MARINE LTD, 9th NOVEMBER 2007, unreported
Action by mortgagee of yacht seeking to sell same and to be ranked primo loco on proceeds of sale.  Yacht sold fraudulently by first defender to second defender.  Whether second defender held a possessory win over yacht which it could enforce as against registered mortgage.  Priority as between claims of mortgagee and those of second defender.

DIAMOND OFFSHORE DRILLING (UK) LTD v GULF OFFSHORE NS LTD 2005 SLT 589
Collision between supply vessel and oil rig she was supplying.  Preliminary proof on foreign law governing indemnity provisions in call-off contract and charterparty in order to construe these indemnities and determine whether pursuer indemnifying defender against damage to rig.

SHETLAND SEA FARMS LTD v ASSURANCEFORENINGEN SKULD 2004 SLT. 30
Preliminary proof in limitation proceedings arising out of “Braer” casualty.  Issue as to whether claimant had attempted knowingly to present a fraudulent claim based on backdated forward contracts for the sale of smolt to claimant.  Evidence taken at proof and on commission in Canada.  Secondary issue as to whether, if fraudulent claim had been put forward (as it was held it had) Court should refuse to allow proof on amended (and allegedly untainted) claim to share in limitation fund to proceed.

R.M.SUPPLIES (INVERKEITHING) LTD v EMS-TRANS SCHIFFAHRTSGESELL GMBH & CO. KG 2003 S.L.T. 133
Cargo claim for delivery other than against bills of lading.  Hague-Visby Rules Art.III, r.6.  Whether action time-barred when summons served outside 1 year, but arrestment to found jurisdiction within that period.  Whether “suit” brought for Hague Hague-Visby time-bar on arrestment or only on service of summons.

CALEDONIA SUBSEA LTD v MICOPERI SRL 2003 SC 70
Jurisdiction dispute turning on the choice of law by which to judge ‘place of performance of the obligation in question’.  No actual choice of law in contract.  Dispute as to whether presumption in Article 4 (2) of Rome Convention to be disregarded under Article 4 (5).  Preliminary proof held and then reclaimed.

RENTON v RIDDELL 2002 SC(D) 27/4
Collision proof.  Collision between two yachts taking part in races in Clyde.  Division of blame.  Assessment of damages to which pursuer might be entitled.

ASSURANCEFORENINGEN SKULD v I.O.P.C.F (NO3) 2000 SLT 1,352
Caution for expenses to be found by limited company in relation to shipowner’s limitation mulitplepoiding raised by shipowner’s P&I Club.  Sub-section 726(2) Companies Act, 1985.  Whether claimant in multiplepoinding subject to the section 726(2) as a “pursuer” even though the action was formally pursued by the P&I Club limiting the liability of the shipowner and itself.

TOR CORPORATE A.S. v CHINA NATIONAL STAR PETROLEUM CORPORATION, 27th JULY 2000 (REPORTED ON APPEAL AT 2001; SC 314)
Attempt to recall arrestment on the dependence of an oil rig.  Argument as to whether rig was arrested on footing of a claim to which section 47(2) of Administration of Justice Act, 1956 applied.  Whether claim arising out of rig management agreement was sufficiently directly connected with use of the vessel to allow of arrestment.  Discussion of value of security to be put up to the vessel from arrest

ASSURANCEFORENINGEN SKULD v I.O.P.C.F. (NO.2) 2000 SLT. 1,348
After allegations of fraud were levelled against it, a claimant on the limitation fund amended its case.  This case concerned the issue whether the amendment was so radical as to render it a different claim from the original one, and, if so, whether that claim had become prescribed under section 9 of the 1971 Act.

ASSURANCEFORENINGEN SKULD v I.O.P.C.F. (NO.1) 2000 SLT. 1,333
After the P&I Club insuring the “Braer” limited its liability for claims and paid the funds into court a multiple-poinding on the limitation fund in medio was commenced.  This case concerned whether a condescendence and claim could be lodged late by the Lord Advocate

FERGUSON SHIPBUILDERS LTD v VOITH HYDRO GMBH 2000 SLT 229
Contract for manufacture and sale of ship’s engines.  Dispute about jurisdiction and choice of law giving rise to preliminary proof on contract formation and a “battle of the forms”.

GLOBAL MARINE DRILLING COMPANY v TRITON HOLDINGS LIMITED, 23rd NOVEMBER, 1999 UNREPORTED
Attempt to recall the arrestment of the “Sovereign Explorer”, a mobile offshore drilling unit.  Discussion as to whether an oil rig of that class was a “ship” for the purposes of section 48 of the Administration of Justice Act, 1956.  Discussion whether arrestment bad as having been laid on with ulterior or dishonest motive.  What guarantor would suffice in order to provide alternative adequate security.

P&O SCOTTISH FERRIES LTD v THE BRAER CORPORATION [1999] 2 LLR. 535
Relational economic loss.  Interpretation of section 1 of 1971 Act.  Use of 1969 convention to interpret statutory section.  Degree of notice as to basis of claims required in pleadings.

GRAY v THE BRAER CORPORATION [1999] 2 LLR 541
Merchant Shipping (Oil Pollution) Act, 1971, Section 9.  When claims under 1971 scheme prescribed.  Whether claim made in name of wrong pursuer had prescribed.  Continuing loss.  Interpretation of statutory time-bar provision.  Whether six year bar struck down continuing loss claims or whether three year period operated from date loss first occurred.

SKERRIES SALMON LTD v THE BRAER CORPORATION 1999 SLT. 1,196
Approach to construction of international treaties.  Claim for loss caused by reduction in fish catches as a result of exclusion zone imposed by H.M.G. following oil spill.  Whether pure economic loss claims for relational economic loss were too remote to sound in damages for which compensation available under 1971 Act scheme.

SHETLAND SEA FARMS LTD v THE BRAER CORPORATION 1999 SLT 1,189
Claim for loss of salmon sales profits and for loss of outlay in purchasing forward smolts which would need to be destroyed.  Whether pursuer could claim for both loss of profit and expenditure wasted on purchase of the smolts under 1971 Act compensation scheme.

EUNSON v THE BRAER CORPORATION 1999 SLT 1,405
Title to sue for damage to common property  allegedly cause by oil pollution.  Whether one common owner could sue to recover whole cost of repair or only for his proportion of whole property.  Whether claim at instance of other common owner had prescribed.

BLACK v THE BRAER CORPORATION 1999 SLT 1,401
Argument arising out of Merchant Shipping (Oil Pollution) Act, 1971 (now substantially re-enacted in Merchant Shipping Act, 1995) regarding liability for damage caused by oil which escaped from the “Braer”.  This case related to whether psychological personal injuries could form a relevant head of claim under the compensation regime to which the 1971 Act referred (International Convention on Civil Liability for Oil Pollution Damage, 1969).

LANDCATCH LTD v THE BRAER CORPORATION [1998] 2 LLR 552; [1999] 2 LLR 316
Claim under 1971 Act compensation scheme for loss of market in Shetland for smolts grown in Argyllshire and Wester Ross.  Whether losses were economic loss too remote from the oil contamination to sound in damages recoverable under the compensation scheme.  Whether expenses of preparing and presenting claim to I.O.P.C.F. recoverable from ship owners under scheme.  Whether I.O.P.C.F. personally barred from denying liability.  Discussion as to law governing direct right of action against P&I club of shipowners.

LADGROUP LTD v EUROEAST LINES S.A. 1997 SLT 916
Argument concerning availability of arrestment to found jurisdiction in cargo claim.  Civil Jurisdiction and Judgements Act, 1982 and Brussels Convention on Arrest of Seagoing Ships, 1952.

ANDERSON v THE BRAER CORPORATION 1996 SLT. 779
Case concerning management of the causes arising out of the “Braer” casualty and resultant oil spill.  Whether possible to sist actions pending test case.

CLIPPER SHIPPING CO. LTD v SAN VINCENTE PARTNERS 1989 SLT 266
Arrestment of vessel on the dependence of action brought in Denmark.  Considerations for the grant of warrant to arrest under section 27 of Civil Jurisdiction & Judgements Act, 1982 discussed and guidance as to material to be put before the Court given.

THE SCOTTISH LION INSURANCE COMPANY LTD v GOODRICH CORPORATION & OTHERS, [2011] T.L.R. 55
Noters which voted in favour of the scheme of arrangement at company meetings entered the process in order to argue that documents which they had submitted in order to be allocated votes at the company meetings ought not to be recovered for use at the hearing on the sanction of the scheme because those documents were confidential or privileged under Scots law or foreign law.  The court considered whether or not any privilege in the documents had been waived by the Noters by reason of their having been provided to the chairman for the purpose of allocating votes.  The Lord Ordinary held that they had, and the Noters reclaimed.

THE SCOTTISH LION INSURANCE COMPANY LTD v GOODRICH CORPORATION [2010] CSIH 34
Inner House consideration of questions of liability for expenses in applications under part 26 of Companies Act, 2006.  Discussion as to whether Court should award expenses to objectors notwithstanding the success of the reclaiming motion on the basis of the English tendency so to do derived from In re Thomas de la Rue, Ltd and Reduced or should apply ordinary rule that expenses follow the event.

THE SCOTTISH LION INSURANCE COMPANY LTD v GOODRICH CORPORATION & OTHERS 2010 SLT 100 ; [2010] BCC 650
Scheme of Arrangement under section 825 to 899 Companies Act, 2006 proposed by insurer in London market.  The scheme is a solvent scheme and is opposed by American multi-national companies which claim to have been holders of occurrence-based policies covering them against long tail environmental, asbestos or similar liabilities.  The respondents argue that on a solvent scheme the court could not grant sanction for the scheme unless something more than mere compliance with the “Buckley test” was averred.  Though the petition was initially dismissed on that ground, on appeal it was reinstated on the view that there was no rule that something more was needed in order to allow sanction in a solvent scheme.

SCOTTISH SOLICITORS’ PENSION FUND TRUSTEES v CRIGHTON 2009 SLT 1,175
Whether Auditor of Court liable to Trustees under Rules of the Pension Fund.  Acted for one holder of that office against whom case was abandoned

ATLANTIC TELECOM GMBH, NOTER 2004 SLT 1,031
Characterisation issues as between contract and company law analyses of inter company loans within a group of companies.  Matter arising in challenge to adjudication on claim by liquidator.  Consideration of the “ characteristic performance” of a contract of loan for the purposes of Contracts (Applicable Law) Act, 1990.

NEWMAN SHOPFITTERS LTD v M.J.GLEESON GROUP PLC 2003 SLT (Sh. Ct) 83
The case concerned the possibility of dismissing an action on account of long delay in its prosecution.  An action was restarted in a building contract case following a sist of some seven years to allow an arbitration to take place, which arbitration had never in fact got underway.  When the Pursuer restarted the action, the Defender argued that it should be thrown out on account of the prejudice caused the Defender by the long delay caused by the Pursuer.  The Sheriff-Principal assoilzied the Defenders, holding that it was open to the Sheriff Court to assoilzie a Defender prejudiced by a Pursuer’s delay in prosecuting his action.

ASSURANCEFORENINGEN SKULD v I.O.P.C.F (NO3) 2000 SLT 1,352
Caution for expenses to be found by limited company in relation to shipowner’s limitation mulitplepoiding raised by shipowner’s P&I Club.  Sub-section 726(2) Companies Act, 1985.  Whether claimant in multiplepoinding subject to the section 726(2) as a “pursuer” even though the action was formally pursued by the P&I Club limiting the liability of the shipowner and itself.

PIONEER SEAFOODS LTD (IN RECEIVERSHIP) v THE BRAER CORPORATION [2000] BCC 680
Sub-section 726(2) Companies Act, 1985.  Whether the pursuer ought to provide caution for expenses,.  Whether “Braer” incident cause of company impecuniosity.  Whether court empowered in Scotland to require payment in a given time, which failing claim would be dismissed or whether the sub-section only allowed it to sist proceedings until the caution was found.

THIRD v NORTH-EAST ICE & COLD STORAGE LTD 1997 SLT 1,177
Unfair prejudice petition.  Whether claims to be measured on basis that company was a quasi-partnership.  Whether history of company would cause it to mutate from quasi-partnership to ordinarily structured and governed company.

EAST ANGLIAN ELECTRONICS LTD v OIS PLC 1996 SLT 808
Construction of side letter to agreement for sale and purchase of limited company.  The Inner House, reversing the Lord Ordinary, held that the obligations in the side letter anent the transfer of premises were too vague, and that the side letter was void from uncertainty.

BROWN v DICKSON 1995 SLT 354
Liquidation over lengthy period.  Whether or not liquidator entitled to retire.  Procedure for replacement of liquidator

STYR v H.M.ADVOCATE 1994 SLT 5
Insider trading trial.  Appeal from preliminary diet concerned with admissibility at trial of answers given to D.T.&I. Inspectors.  Accused ultimately acquitted at trial on submission of ‘no case to answer’.

THOAR’S JUDICIAL FACTOR v RAMLORT LTD 1999 SLT 1,153
Judicial Factory on insolvent estate suing to recover alleged gratuitous alienation in favour of English company under section 34 Bankruptcy (Scotland) Act, 1985.  Issue as to whether Scottish Court had jurisdiction to hear case on basis that judicial factory was Scottish even though the defender was not domiciled in Scotland.

BROWN v DICKSON 1995 SLT 354
Liquidation over lengthy period.  Whether or not liquidator entitled to retire.  Procedure for replacement of liquidator

MARTIN’S TRUSTEE v MARTIN 1994 SLT 261
Recall of Sequestration.  Whether case could be brought more than ten weeks beyond date of sequestration. Bankruptcy (Scotland) Act, 1985

ROXBURGH DINARDO & PARTNERS’ JF v DINARDO 1993 SLT 16
Scheme of division of estate in judicial factory.  Whether judicial factor was entitled to apply interest at a compound rate as against former partner who had used former partnership assets.

GRAHAM v JOHN TULLIS & SON (PLASTICS) LTD (NO 2) 1992 SLT 514
Insolvency of limited company.  Petition to wind-up company refused in Sheriff Court for want of title to petition.  Award of expenses.  Whether terms of Insolvency (Scotland) Rules called for award to be made out of assets of the company irrespective of petition’s failure.

ACCOUNTANT IN BANKRUPTCY v ALLANS OF GILLOCK LTD 1991 SLT 765
Judicial Review of decision of Sheriff under Bankruptcy (Scotland) Act, 1985 s.63 purporting to alter the date of sequestration in bankruptcy proceedings.

EAST ANGLIAN ELECTRONICS LTD v OIS PLC 1996 SLT 808
Construction of side letter to agreement for sale and purchase of limited company.  The Inner House, reversing the Lord Ordinary, held that the obligations in the side letter anent the transfer of premises were too vague, and that the side letter was void from uncertainty.

EAE PROPERTY Ltd v EAE (RT) LTD 1994 SLT 627
Interdict of Irritancy notice under commercial lease for failure to comply with statutory requirements.  Also issue as to whether notice served by fax complied with the contractual demands of the lease as regards service of rent review notices.

GIBSON & SIMPSON v PEARSON 1992 SLT 894
Res Judicata. A decree in absence against which reponing had been refused was sought to be set up as a defence to an action seeking further sums of unpaid rent.  The case also considers liability for violent profits in a precarious possessor.

RUTTERFORD LTD v ALLIED BREWERIES LTD 1990 SLT 249
Missives dispute as to status of qualified acceptance as a rejection and counter-offer.  Secondary question as to homologation of missives

STIRLING FINANCIAL SERVICES LTD v JOHNSTON 1990 SLT 111
Competition Law.  Question as to whether a restrictive covenant was unenforceable because of a failure to comply with Restrictive Trade Practices Act, the agreement containing the restriction not being registered under that Act.

AMERICAN EXPRESS EUROPE LTD v ROYAL BANK OF SCOTLAND PLC 1989 SLT 266; 1989 SLT 650
Competition between creditors.  Whether security invalid as invalidly executed

SIDLEY v CLACKMANNANSHIRE COUNCIL (2010) Eu.L.R.647
Procurement case on a contract the value of which was below threshhold levels.  Whether Community rights engaged where Council nevertheless issued a tender questionnaire including questions directed to foreign tenders.  Whether action by disappointed tender who lost contract because of mistakes in Council treatment of tenders could sue for damages in ac action or had to petition for judicial review.

FARSTAD SUPPLY A.S. v ENVIROCO LTD 2012 S.L.T 348
Sequel to the ‘Far Service’ (Scotland) infra.  Dispute as to the rate of pre-judgement interest which should be awarded in damages actions given that the rate stipulated in Rule of Court 7.7 is now well in excess of the rates of interest available in the market to depositors and borrowers.

Flood Prevention 

ARGYLL AND CLYDE HEALTH BOARD v STRATHCLYDE REGIONAL COUNCIL 1988 SLT 381
Nuisance and negligence arising from flood.  Whether averments importing fault were required to make relevant case of nuisance.

Retail

LATIF v MOTHERWELL DISTRICT LICENSING BOARD 1994 SLT 414
Licensing of premises for sale of alcohol.  Licensing (Scotland) Act, 1976.  Over-provision.  Whether Board unreasonable in applying own knowledge of area and level of provision therein.

Transport & Works 

FELLOWES v CLYDE HELICOPTERS LTD [1997] A.C. 534
Aviation case.  Scheme governing domestic flights within the United Kingdom.  Whether policeman on duty in helicopter chartered by police force for police work was a “passenger” for purposes of the statutory scheme.

ANDERSON v TROTTER 1999 SLT 442
Appeal from Lands Tribunal on variation of land obligations under Conveyancing & Feudal Reform Act, 1970.

SHORT’S TUSTEE v KEEPER OF THE REGISTERS OF SCOTLAND 1996 S.C. (H.L.) 14
Conveyancing.  Registered land.  Whether keeper had power to correct Land Register of Scotland so as to give effect to a reduction of a title as a gratuitous alienation.  Land Registration (Scotland) Act, 1979.  Held by House of Lords that he did not.

RAMSAY & CHALMERS v HOLMES 1992 SLT (LANDS TRIBUNAL) 53
Variation and discharged of land obligation.  Whether obligation had to prevent a proposed reasonable use of land in order to ‘hinder’ it and thus allow its variation or discharge under the 1970 Act.

FG HAWKES (WESTERN) LTD v SZIPT (JIANGSU IMPORT AND EXPORT) LTD, MARCH 2007 (unreported)
Action for freights raised in France.  Section 27 Civil Jurisdiction and Judgements Act, 1982 arrestment of discharged cargo.  Questions as to whether arrestment should remain in place as showing prima facie case when Court faced with competing evidence about the content of the foreign governing law and the relative strength of the parties’ cases there under.

ATLANTIC TELECOM GMBH, NOTER 2004 SLT 1,031
Characterisation issues as between contract and company law analyses of inter company loans within a group of companies.  Matter arising in challenge to adjudication on claim by liquidator.  Consideration of the “ characteristic performance” of a contract of loan for the purposes of Contracts (Applicable Law) Act, 1990.

CALEDONIA SUBSEA LTD v MICOPERI SRL 2003 SC 70
Jurisdiction dispute turning on the choice of law by which to judge ‘place of performance of the obligation in question’.  No actual choice of law in contract.  Dispute as to whether presumption in Article 4 (2) of Rome Convention to be disregarded under Article 4 (5).  Preliminary proof held and then reclaimed.

ASTILLEROS ZAMAKONA S.A. v MESSRS MACKINNONS 2002 SLT 1,206
Dispute anent jurisdiction relative to solicitor’s obligations under joint deposit agreement supplementary to shipbuilding contract.  Issue as to whether exclusive jurisdiction clause in shipbuilding contract was incorporated into supplemental agreement and able to be pleaded by the solicitors in light of Coreck Maritime GMBH v Handelsveem BV.

FERGUSON SHIPBUILDERS LTD v VOITH HYDRO GMBH 2000 SLT 229
Contract for manufacture and sale of ship’s engines.  Dispute about jurisdiction and choice of law giving rise to preliminary proof on contract formation and a “battle of the forms”.

SKERRIES SALMON LTD v THE BRAER CORPORATION 1999 SLT. 1,196
Approach to construction of international treaties.  Claim for loss caused by reduction in fish catches as a result of exclusion zone imposed by H.M.G. following oil spill.  Whether pure economic loss claims for relational economic loss were too remote to sound in damages for which compensation available under 1971 Act scheme.

CLIPPER SHIPPING CO. LTD v SAN VINCENTE PARTNERS 1989 SLT 266
Arrestment of vessel on the dependence of action brought in Denmark.  Considerations for the grant of warrant to arrest under section 27 of Civil Jurisdiction & Judgements Act, 1982 discussed and guidance as to material to be put before the Court given.

INVERCLYDE COUNCIL v DUNLOP 2005 S.L.T. 24
Cy-Près scheme regarding use of pavilion in park opposed by local residents.  Consideration of grounds for exercise of cy-Près jurisdiction.

THURSO BUILDING SOCIETY’S J.F. v ROBERTSON 2001 SLT 197
Judicial Factor on partnership estate.  Whether solicitors’ duties owed to the judicial factor or to descendants of original partners, firm being dissolved by their death.

BALGOWAN TRUSTEES, PETITIONERS 1999 S.L.T. 817
Cy-Près scheme.  Issue raised by reporter as to whether petitioners were properly appointed as trustees on the Trust, an issue which depended upon whether or not ex officio trustees could assume new trustees under the Trusts (Scotland) Act, 1921

WRIGHT’S TRUSTEES v CALLENDAR 1993 S.C (HL)
Special case taken to House of Lords on question of interpretation of the word “issue” appearing in trust disposition and settlement, having regard to changes in law on legitimacy between date will came into effect and that on which succession opened to possible beneficiaries

ABERDEENSHIRE COUNCIL, PETITIONERS 2006 SCLR 580
Expenses.  Liability of petitioning Council in family case for expenses incurred by Reporter and for his fees.  Fees taxed by Auditor.  Note of objections to Auditor’s report.  Whether within discretion allowed to auditor.

MATHESON v MATHESON 1988 SLT 238
Interim Aliment – Transitional Provisions of Family Law (Scotland) Act, 1985

NIXON v NIXON 1987 SLT 602
Interim Aliment – variation thereof – sub-sections 1(5) and 5(1) Family Law (Scotland) Act, 1985

STYR v H.M.ADVOCATE 1994 SLT 5
Insider trading trial.  Appeal from preliminary diet concerned with admissibility at trial of answers given to D.T.&I. Inspectors.  Accused ultimately acquitted at trial on submission of ‘no case to answer’.

H.M.ADVOCATE v HENDERSON 2010 SCCR 909
Whether sentence imposed by Lord Commissioner was incompetent as the statutory basis therefore had been incapable of being enacted by the Scottish Parliament so as to apply to the index offence, that offence being a reserved matter.  Whether application of a new maximum sentence for contravening Firearms Act was out with legislative competence of Scottish Parliament.

THE INFANT & DIETETIC FOODS ASSOCIATION LTD v THE SCOTTISH MINISTERS 2008 SLT 137; 2008 SLT 723
Whether regulations promulgated by The Scottish Ministers were ultra vires insofar as they mistransposed the transitional provisions of a European Directive anent labelling of formula milk and so breached European law rights of petitioner.  Whether interim interdict of regulations should be granted.

A.B. v SCOTTISH LEGAL AID BOARD [1991] SCLR 702
Judicial Review of refusal of sanction by legal aid board for retainer of senior counsel in drugs importation trial.  Whether board needed to give reasons for refusal.  Whether refusal Wednesbury unreasonable.

THE INFANT & DIETETIC FOODS ASSOCIATION LTD v THE SCOTTISH MINISTERS 2008 SLT 137; 2008 SLT 723
Whether regulations promulgated by The Scottish Ministers were ultra vires insofar as they mistransposed the transitional provisions of a European Directive anent labelling of formula milk and so breached European law rights of petitioner.  Whether interim interdict of regulations should be granted.

H.M.ADVOCATE v HENDERSON 2010 SCCR 909
Whether sentence imposed by Lord Commissioner was incompetent as the statutory basis therefore had been incapable of being enacted by the Scottish Parliament so as to apply to the index offence, that offence being a reserved matter.  Whether application of a new maximum sentence for contravening Firearms Act was out with legislative competence of Scottish Parliament.

A.B. v SCOTTISH LEGAL AID BOARD [1991] SCLR 702
Judicial Review of refusal of sanction by legal aid board for retainer of senior counsel in drugs importation trial.  Whether board needed to give reasons for refusal.  Whether refusal Wednesbury unreasonable.

Adjudication

CARILLION UTILITY SERVICES LTD v SP POWER SYSTEMS LTD 2012 SLT 119
Enforcement of adjudicator’s award refused by reason of breach of natural justice in relation to his use of his own knowledge and experience to derive rates of remuneration.  Consideration of ability to sever affected part of award in single dispute case.

SGL CARBON FIBERS LTD v RGB GROUP LTD 2011 SLT 417

ATHOLL DEVELOPMENTS (SLACKBUIE) LTD, PETITIONER 2011 S.C.L.R. 637
Judicial review of adjudicator’s decision.  Whether adjudicator bound by a first decision to decide as he did in second decision.  Observations made by the court as to obligation of parties proposing to attack an adjudicator’s decision to act swiftly.

RBG GROUP LTD v SGL CARBON FIBERS LTD [2010] B.L.R 631
Enforcement of adjudicator’s award refused and decision set aside ope exceptionis on account of adjudicator’s failure to exhaust the reference through a failure to consider defence of over-payment.

CSC BRAEHEAD LEISURE LTD v LAING O’ROURKE SCOTLAND LTD [8th] SEPTEMBER 2008 (SEQUEL TO [2009] BLR 49)
Enforcement of decision of adjudicator who made interim award shortly before expiry of jurisdiction period.  How court should enforce declarators pronounced by adjudicator.

COSTAIN LTD v STRATHCLYDE BUILDERS LTD (2003) 100 Con.L.LR. 41
Motion for summary decree in enforcement of adjudicator’s award refused on account of breach of natural justice where adjudicator failed to disclose to parties advice received by him from legal adviser.  Discussion whether, to permit reduction of decision, material effect of advice on decision had to be shown or if possibility of injustice arising from the breach was sufficient.

A v B 2003 S.L.T 242
Enforcement of Adjudicator’s award.  Discussion of TECSA Adjudication Rules (then ORSA Rules) and restriction on right of challenge of adjudicator’s decisions.  Consideration whether defence of retention in Scots Law barred by prohibition of ‘set –off, counterclaim or abatement’.  Held that it was not.

INVERNESS SEAFIELD DEVELOPMENT CO LTD v MACKINTOSH 2001 SC 406
Adjudication in implement of missives.  Servitudes of necessity in respect of landlocked property.  Whether implied servitude equivalent to an express one

SL TIMBER SYSTEMS LTD v CARILLION CONSTRUCTION LTD [2001] BLR 576
Whether money could be withheld as ‘abatement’ if notice not served under sections 110 and 111 of Housing Grants, Construction & Regeneration Act, 1996.  Whether error in that regard by adjudicator rendered decision invalid as a failure to exhaust the reference or was a mere error of law.  Whether payment of a decision could be resisted on account of pursuer’s financial condition

STIELL LTD v RIEMA CONTROL SYSTEMS LTD 2000 SC 539; [2001] 3 TCLR 9
Appeal from Sheriff Court on question whether Pursuer could competently arrest on dependance of an action to secure payment of debt which an adjudicator under the Housing Grants, Construction & Regeneration Act, 1996 had decided was not due.

CASTLE INNS (STIRLING) LTD v CLARK CONTRACTS LTD 2006 SCLR 663
Action under section 108 (3) of 1996 Act to unwind effect of adjudicator’s decisions, one of which had been issued after Final certificate in SBCC standard form of building contract.  Discussion of legal basis for repayment if court held adjudicator’s decision in favour of contractor wrong, or at least excessive; as to whether adjudicator’s decision on fees and expenses subject to alteration by the court in such circumstances; and as to effect of adjudicator’s decision after final certificate if that decision not sought to be unwound in 28 days.  Whether time –bar on such challenge.

Arbitration 

SGL CARBON FIBRES LTD v RBG GROUP LTD 2012 S.L.T. 327
Appeal from an arbiter under Arbitration (Scotland) Act, 2010, section 69.  Whether arbitrator had correctly decided issues on onus of proof in relation to competing claims of over-and-under-payment of a contractor on an amended KEL3 contract.

ARBITRATION APPLICATION No.3 of 2011 2012 SLT 150
Consideration by Court of Session of the grounds upon which leave to appeal be granted in a legal error appeal tender rule 69 of the Schedule to the Arbitration (Scotland) Act, 2010.

GILLIES RAMSAY DIAMOND v P.J.W. ENTERPRISES LTD [2004] BLR 131
Judicial Review of adjudicator’s decision.  Whether an agreement to do contract administration was a construction contract for the purposes of the 1996 Act and whether adjudicators in Scotland could assess and award damages.  Issue as to whether decision reducible on account of a failure to take into account relevant material.

ROGERSON ROOFING LTD v HALL & TAWSE (SCOTLAND) LTD 2000 SC 249
Stated case from arbiter.  Title to sue.  Whether arbiter entitled to reject plea of “no title” on the basis pleaded before him, but uphold that plea on a basis unpleaded.  Whether claimant in arbitration had pleaded sufficient to allow it to rely on an assignation in order to afford it title to sue.

ERDC CONSTRUCTION LTD v H.M.LOVE & CO (NO 2) 1997 SLT 175
Powers of arbiter to control procedure before him.  Whether he was precluded from dealing with Minute of Amendment.

ERDC CONSTRUCTION LTD v H.M.LOVE & CO 1994 SC 620
Arbitration in building contract dispute.  Construction of submissions to arbitration to discern extent of arbiter’s jurisdiction.  Whether contractor entitled to recover on a quantum meruit basis where employer in breach of contract, but contract not rescinded.

KIDD v GRAMPIAN HEALTH BOARD 1994 SLT 267 (for Defender)
Medical Negligence case concerned with a preliminary proof about limitation of actions and whether time for raising action should be extended under section 19A of Prescription & Limitation (Scotland) Act, 1973.

GEDDES v LOTHIAN HEALTH BOARD 1992 SLT 986 (for Defender)
Medical Negligence case concerned with birth of child suffering from Perinatal asphyxia.  First case in Scotland concerned with assessment and quantification of damages in that type of action, though the defenders were in fact assoilzied on the merits.

COYLE v LOTHIAN HEALTH BOARD 1991 SLT 277 (for Defender)
Medical Negligence action regarding alleged failure to diagnose and treat appropriately deceased.  Defender assoilzied on the merits.  Damages assessed at very low figures.

MCLAUGHLIN v GREATER GLASGOW HEALTH BOARD 1989 SLT 793 (for Defender)
Nurse sued for alleged wrongful eviction from Nurse’ home.  Issue whether entitled to a ‘Part VII’ contract under the then extant Rent Acts.

SHAW v LANARKSHIRE HEALTH BOARD 1988 SCLR. 13 (for Defender)
Medical Negligence action originally raised in Sheriff Court.  Consideration as to whether case was such as ought to be remitted to Court of Session in face of Pursuer’s opposition.

PHILLIPS v GRAMPIAN HEALTH BOARD. 1988 SLT 628; 1989 SLT 538; [1991] 3MED.L.R. 16 (for Defender)
Medical Negligence action brought by widow of serviceman following failure to diagnose a fatal illness from which he was suffering prior to her marriage to him.  Case reclaimed on question whether she was entitled to recover though she had married in the knowledge of his condition.  Case thereafter went to proof and defenders were assoilzied on the merits.

STUART v GRAMPIAN HEALTH BOARD, 11th February, 1993, unreported (for Defender)
Medical Negligence case concerning failure to diagnose a sub-arachnoid haemorrhage.  Discussion of standard of care and evidence of similar practice in the profession.  Defender assoilzied on the merits.

MCWHINNIE v BRITISH COAL CORPORATION 1993 SLT 467 (for Defender)
Damages sought for two industrial injuries.  Assessment of damages to be awarded.

REEKIE v BRITISH COAL CORPORATION 1992 SLT 611 (for Defender)
Whether affidavit evidence of expert should be allowed in case where his evidence was potentially critical and cross-examination was precluded by his ill-health.

ROSS v BRITISH COAL CORPORATION 1990 SLT 854 (for Defender)
Issue whether, and if so, in what circumstances, summary decree is available in the context of a personal injuries action.

Damages sought for industrial accident of minor nature.  Assessment of value of award.

PARKS v TAYSIDE REGIONAL COUNCIL 1989 SC 38
Commission and diligence sought in context of personal injuries action to recover adoption records covered by statutorily imposed duties of confidence.  Court considered balance between that confidentiality and the needs of the administration of justice, and allowed recovery.

HEATHERLEY v SMITH 1989 SLT 316 (for Defender)
Proof or Jury Trial. Special Cause; whether necessary to aver proportion of income devoted to upkeep of family.

THE MARQUESS OF ABERDEEN AND TEMAIR v MESSRS TURCAN CONNELL [2009] PNLR 18
Professional negligence action against solicitors for failure to advise of the need to meet a time limit to make an appointment under a trust.  Issue about title to sue relative to tax liabilities incurred as a result, and, in particular, whether the Pursuer could sue on a Panatown basis.

TONNER v MESSRS REIACH AND HALL 2008 SC 1
Inner House authority for the dismissal for want of prosecution of an action in the Court of Session.  The action was an action for professional negligence against architects employed in relation to the construction of a house.  The action was sisted for many years.  When restarted, the Lord Ordinary refused a motion to assoilzie the Defenders on account of the prejudice caused them by the delay in prosecution of the case.  On a reclaiming motion, the Inner House reversed the Lord Ordinary and set out the grounds on which it would be competent to the Court of Session to dismiss an action for want of prosecution.