Month: November 1999

On 28 February 2002 the Crown Office announced that the gas company Transco is to be prosecuted over the deaths of four members of the same family in a gas explosion at their Larkhall home in 1999.  The company will be charged with culpable homicide or, in the alternative causing death by a contravention of the Health and Safety at Work Act 1974.  It is believed to be the first prosecution of a company for culpable homicide in Scots law.  Further on the subject of corporate crime see R Mays, The criminal liability of corporations and Scots law (2000) 4 Edinburgh Law Review 46, and J P and A L Minkes, Mays on corporate crime: a transdisciplinary perspective (2001) 5 Edinburgh Law Review 242.

On 28 February 2002 a 33-year old French father was convicted in Edinburgh Sheriff Court of assaulting his 8-year old son outside a city restaurant last September (see No 146).  He was found not guilty of injuring the child, and was admonished by Sheriff Isobel Poole.  She took into account that there was no history of abuse in the French family in question.  The father had claimed to be only punishing the child after he had thrown a tantrum in the restaurant.  Witnesses stated that the child had been dragged forcibly from the restaurant and had been punched and kicked while lying on the ground.

The Queen has conferred the rank and dignity of Queen’s Counsel in Scotland on, inter alia, Robert Craig Connal, the first solicitor advocate to be so recognised (see 2002 SLT (News) 59).

On 21 February 2002 Lord Kingarth held relevant a claim by a niece and nephew of a deceased person against a bank for negligence in relation to the deceased’s will, the bank having failed to execute timeoulsy the deceased’s instructions in connection with the will and and an increase in the bequests for the pursuers thereunder.  By the time the will was prepared by the bank, the deceased had been too ill to attend to her affairs (Holmes v Bank of Scotland 2002 GWD 8-269).  Lord Kingarth held that the House of Lords decision in Robertson v Fleming (1861) 4 Macq 167 was no longer binding in Scots law, following the unreported decision in Robertson v Watt & Co, 2nd Division 4 July 1995.  Scots law on the subject was no different from English law following Hedley Byrne v Heller [1964] AC 465 and White v Jones [1995] 2 AC 207.

Lord Drummond Young held on 14 January 2002 that the diligence of inhibition on the dependence was disproportionate and incompatible with Article 1 of the First Protocol of the European Convention on Human Rights (Karl Construction Ltd v Palisade Properties plc 2002 GWD 7-212; 2002 SLT 312). The judge briefly discusses the horizontal effect of the Human Rights Act 1998, referring to the writings of Sir William Wade on the subject, and observes (para 76):

 The question thus arises as to how far the courts are bound by the Convention in common law matters.  In my opinion the applicability of the Convention must extend at least to what may be described as the ‘internal’ processes of the court, as against the rights that individuals and other private legal persons have against one another as a matter of substantive law.  These ‘internal’ processes include the procedures that the court follows and, crucially, the remedies that the court makes available.  I reach this conclusion because these are matters that involve the court’s own processes.  The statement in s 6(3)(a) that a court is a public authority must have some content, and the minimum content that can be given is in my opinion the subjection of the court’s procedures and remedies to the Convention. (2002 SLT at 330)

It is understood that the pursuers were granted leave to reclaim in this case, but abandoned it shortly before a hearing.  The Commercial Court is giving serious thought to a Practice Note and/or revision of the relevant Rules of Court.  It is understood that the General Department of the Court of Session is (i) continuing to signet summonses containing warrants for diligence; and (ii) refusing requests from agents that the warrant be put before a judge.  There are concerns about the demands on judicial resources.  There has also apparently been a sheriff court case in which it was accepted that Karl applied to arrestments and the arrestments in question were recalled. 

It is also understood that a First Protocol point may be taken in the appeal of Scottish Power Generation Ltd v British Energy Generation (UK) Ltd 2002 GWD 2-60, a case about whether s 47(2) of the Court of Session Act 1988, enabling the court to make an interim order for the possession of property, could be extended to permit an order requiring payment of money into a designated account.  Lord Macfadyen held on 4 January 2002 that s 47(2)’s reference to property did not justify an order for the interim payment of money, but that such an order was nonetheless competent under the section as an order regarding the subject matter of the cause.