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BSC - sisting of application for leave to appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber -  CSIH NO. 42 - 26 April 2013
Under the court procedures on
the date of this judgement being handed down, a single judge of the Inner House
can hear applications for leave to appeal against decisions of the Upper
Tribunal (Immigration and Asylum Chamber) under Rule 37 A.1(2) 'Quorum of Inner
House for certain business' of the Rules of the Court of Session.
This was challenged as ultra
vires in the note that accompanies a motion which has been enrolled in
another case to which rule of court 37A.1(2) applies, the application of
MBR for leave to appeal a refusal by the Upper Tribunal of indefinite leave to
remain. MBR is to be decided by three Inner House judges 17 May 2013.
The case of BSC reported here
and heard by Lady Smith on 26 April 2013, concerns an application to the court to sist a
similar appeal until the decision is handed down in MBR. The decision in MBR
may mean that the court as constituted in the ongoing BSC case does not have
power to make a decision on the leave to appeal. The Secretary of State opposed
the application to sist. The court granted the sist.
In her opinion Lady Smith
acknowledged that it was in the interest of the Secretary of State to progress
claims expeditiously. In this case however, the issue was not one of fact or
immigration law but more fundamentally an issue as to the way in which the
court conducts itself in relation to this kind of application. The judge said
that she could not close her eyes to the fact that a determination as to be
made in the very near future that may mean that her making a decision on the
case as an Inner House judges would not be regarded vires.
McCrindle Group Ltd v Maclay Murray & Spens  CSOH 72 - 14/05/13
An action for damages for loss of chance against a firm of solicitors on the grounds of breach of contract and professional negligence. The firm failed to advise the pursuer that its entitlement to claim pre-award interest or damages in an arbitration had expired, which, the pursuer claimed, resulted in a smaller sum in settlement. The firm admitted breach of contract but contested the pursuer's valuation of the lost chance. The issues were i) causation and ii) qualification of loss.
Held: i) There is a distinction between a loss of chance claim which requires valuation of the loss of an established right and a claim which requires causation to determine the loss of a benefit. The latter requires the claimant to prove, on a balance of probabilities, that negligence caused the loss of benefit (Hotson v East Berkshire Area Health Authority  UKHL 1; Gregg v Scott  UKHL 2). Where the alleged lost benefit depends on the hypothetical action of a third party, the claimant must show that there was a real or substantial chance that the third party could have conferred the benefit (Allied Maples Group Ltd v Simmons & Simmons  1 WLR 1602). The present case was in the latter category, concerning negligent failure to advise where the client was deprived of information which they may have used to their economic benefit, rather than the former, which requires loss of an item of property; ii) Once the requirements of causation have been satisfied, the assessment of damages may involve the evaluation of a chance (Mallett v McMonagle  AC 168; Paul v Ogilvy 2002 SLT 171). As the claim was complex and based on a long-lasting arbitration, it was only possible to assess the value of the principal sum, and therefore pre-award interest, by taking a broad approach with reference to the behaviour of the parties.
Lindsay Jones v. The Procurator Fiscal, Dundee  HCJAC 53
Criminal Appeal:- On 31 July 2012 the appellant pled guilty to a charge of assault and a charge of contravening section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The sheriff imposed sentences of 6 months and 4 months respectively, to be served consecutively, these sentences being discounted from 9 months and 6 months respectively on account of the pleas of guilty. The appellant appealed on the grounds that the sentence imposed was incompetent in that the starting off point of 15 months was in excess of the maximum sentence which can be imposed in relation to any one complaint. In Nicholson v Lees 1996 SCCR 551 Lord Justice Clerk Ross stated:- "Where two or more charges are contained in a single complaint, the court cannot competently impose a total period of imprisonment which exceeds in aggregate the upper limit permitted for that court in the particular case by common law or statute." Here the court considered whether the sentence imposed was incompetent having regard to Nicholson v Lees.
Kimberley Mary Hainey v. Her Majesty’s Advocate HCJAC 47
Criminal Note of Appeal Against Conviction:- On 15 December 2011, at the High Court in Glasgow, the appellant was found guilty of murdering her baby son. The charge she was convicted of related to her failing to provide her son with adequate nourishment and fluids, leaving him alone and unattended for excessive periods of time, failing to seek to provide medical aid and care for him and causing unnecessary suffering and injury to the health of him. The appellant was also convicted of a charge of attempting to defeat the ends of justice. The appellant was sentenced to life imprisonment in respect of the charge of murder with the punishment part fixed at 15 years and sentenced to 7 years' imprisonment in relation to the attempting to defeat the ends of justice charge which sentence was to run concurrently with the life sentence. The appellant appealed against her conviction largely on the basis of alleged misdirections by the trial judge. At the close of the Crown case senior counsel for the appellant made a submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 to the effect that there was an insufficiency of evidence in respect of the murder charge. It was submitted that the evidence did not entitle the jury to infer that:- (1) the child had died an unnatural death; (2) his death was the result of the appellant's conduct; and (3) the appellant had the necessary state of mind to be guilty of murder. The trial judge rejected the submission stating that there was a sufficiency of circumstantial evidence which, if taken together, and accepted by the jury, would entitle them to draw the necessary inference that the child had been murdered by the appellant. At the close of the defence case, senior counsel for the appellant made a further motion in which he invited the trial judge to direct the jury to disregard all the evidence relating to Harris lines and cortical erosion given by Professor Black and Dr Cunningham. He submitted that:- (1) the two witnesses did not have the requisite degree of expertise; (2) their evidence fell below the standards required of an expert witness; and (3) Professor Black's evidence was not corroborated by Dr Cunningham. Much of the appeal centred around criticism made of the trial judge’s directions in relation to the ‘expert’ evidence of Professor Black and Dr Cunningham regarding Harris lines as being an important part of the Crown's case. It was submitted on the appellant’s behalf that having regard to the case of Liehne v HMA 2011 SCCR 419 it was incumbent on the trial judge to focus the jury’s attention on the expert evidence and to simply leave the technical evidence at large for the jury amounted to a misdirection. It was contended on behalf of the appellant that the misdirections were material and resulted in a miscarriage of justice.
Mark Chamberlain-Davidson v. Her Majesty’s Advocate  HCJAC 54
Reference by the Scottish Criminal Cases Review Commission:- In June 2006 the appellant was convicted of assault with intent to rape. He appealed against conviction and sentence. Thereafter he abandoned his appeal against conviction and his appeal against sentence was allowed and a sentence of 18 months' imprisonment was substituted for the sentence imposed. On 13 January 2012 the Scottish Criminal Cases Review Commission referred the case. The reference related to:- (1) a failure by the trial judge to define the offence of rape; (2) a failure by the trial judge to give clear directions in respect of the appellant's mixed statement; (3) a failure to give clear directions as to the evidential value of the complainer's distress; and (4) sufficiency of evidence in relation to the Crown case against the appellant. Here the court considered the evidence in the case against the appellant (if the evidence of the appellant’s police interview was disregarded) in particular whether there was corroboration of the complainer’s account that she was assaulted by the appellant at the locus.
Jason Marcus v. Her Majesty’s Advocate  HCJAC 58
Criminal Note of Appeal against Conviction:- On 8 June 2012 the appellant was convicted of assault after the jury made substantial deletions he having originally been charged with assault with intent to rob and attempted robbery. The specification of the charge that remained meant that the offence was one of assault by shouting at the complainer. Here the court considered whether verbal conduct of that nature could constitute assault.
Paul Shaw Hadden v. Her Majesty’s Advocate  HCJAC 61
Criminal Note of Appeal Against Sentence:- The appellant was convicted after trial of culpable homicide and sentenced to 10 years imprisonment. He appealed against the sentence imposed:- (1) the deceased had been making persistent threats to the appellant and Lynn McMillan by means of texts and other methods and resulted in Strathclyde Police apologising for their failure to act; (2) the appellant and Lynn McMillan were having sexual intercourse when the deceased smashed his way in through the back door and set about the couple with a baseball bat; (3) the Crown accepted that two out of the three requirements for self-defence had been fulfilled (a) the appellant and Miss McMillan were under attack, and (b) there was no means of escape, however, the Crown did not concede (c) the question whether the appellant used force grossly in excess of what was required to protect himself and Miss McMillan; (4) there was evidence from pathologists that someone such as the deceased could keep attacking the couple with the baseball bat even after having been stabbed many times; (5) the risk assessment in the criminal justice social work report appeared not to pay proper attention to the unusual circumstances leading to the appellant's behaviour on 31 January 2012; (6) too much importance had been placed on the appellant’s previous conviction for assault in 2010 which was markedly different from the circumstances of the present offence; and (7) the injuries suffered by the appellant and Miss McMillan, and also the damage to the house, all inflicted by the deceased and his use of baseball bat. Here the court considered the circumstances of what it described as a “tragic and unusual set of circumstances”.
Paul Bova and Carol Christie v Highland Council BDW East Scotland Ltd -  CSIH 41 - 3 May 2013
This is a reclaiming motion
following an unsuccessful petition for judicial review of the grant of planning
permission by Highland Council for the development of 64 houses at Resaurie
near Inverness in 2010. The petitioners are owners of property near
the site who had submitted a planning consultation response in which they
highlighted among other flood-related concerns the issue of the impact of the
development on the groundwater aquifer i.e. the contribution that disturbance
of the water bearing layers of rock under the site may make to flooding at the
site post development. Their reclaiming motion focuses on the contention that
the local authority had failed to treat the impact on the aquifer as a material
consideration under the Town & Country Planning (Scotland) Act 1997,
section 37(2) and that this amounted to a mistake in fact which gave rise
to unfairness which amounted to an error in law and justified the setting aside
of the decision as ultra vires.
The Inner House dismissed the
In his judgement Lord Menzies
confirmed that a mistake in fact giving rise to unfairness had to be properly
regarded as a head of challenge in an appeal on a point of law (E v Secretary
of State for the Home Department  QB 1044) but that the conditions
for this had not been made out in this case.
The presence of an aquifer
had not been established in the sense of an uncontentious and objective fact as
required by the test set out in E v Secretary of State. The council had
duely enquired into groundwater issues and the expert advice received was that
there was no evidence of an aquifer and that even if there was one, it would be
of a depth that the development as proposed would not affect it. No
contradictory expert advice existed at the time. There was no onus on the
council to go out to look for evidence of an aquifer or to halt the
determination process for further enquiry since none of the experts or
statutory consultees had requested this.
A second ground for judicial
review concerned a re-issue of planning policy between the initial decision to
grant permission and the official issue of the permission. The revised policy
emphasised a requirement on the council to observe the Precautionary Principle
in flood related issues. While Lord Menzies finds that this was a material
change in the council’s policy flowing from section 42 of the Flood Risk
Management (Scotland) Act 2009 (not yet in force), he also finds that the
council would have come to no different conclusion on the granting of the application
in the light of the new policy.
SL v The Lord Advocate on behalf of the District Court of Michalovce, Republic of Slovakia  HCJAC 50 - 01 May 2013
This is a report of the Inner
House of the Court of Sessions’ decision on an appeal against an extradition
order for an EU national (Slovakien) to her home country under a European Arrest Warrant.
The appellant was charged in Slovakia with having caused the death of one of her 12 children
in 2007 by not caring for the child properly. Having failed to attend court in Slovakia, she removed herself to Scotland with her remaining children and husband. She was
arrested in April 2011.
The appeal against the
extradition focused on the woman’s 7 underage children’s Article 8 rights,
specifically the weight the court’s proportionality assessment should assign to
the impact that the removal of their mother would have on them. The court
dismissed the appeal.
Delivering the judgement,
Lady Paton elucidates the UK supreme court’s recent approach to extradition
cases where children’s Article 8 rights are considered with reference to
Norris v Government of the United States of America (No 2)  2
AC 487, H(H) v Deputy
Prosecutor of the Italian Republic, Genoa, F-K v Polish Judicial
Authority  3 WLR 90; and BH v Lord Advocate 2012 SC
Where it serves the
investigation of criminal offences extradition is a permissible interference
with Article 8 rights in all but the most exceptional cases.
However, the Article 8 rights
of the vulnerable young children of alleged offenders who may be extradited
must be a major factor of consideration in extradition cases. It is not a “paramount”
consideration for the court however. Instead the children’s interest an rights
have to be balanced against the severity of the alleged offence i.e.
extradition should only be ordered for the most serious crime if the alleged
offender has dependent children in the host country.
On the facts of the case,
Lady Paton concludes that the sheriff had struck the correct balance: he had
rightly considered expert evidence of the impact on the children of their
mother’s absence as well as the provisions that would be made through social
work in Scotland for the children and the father. The crime of causing
the death of a child through improper care was sufficiently serious to outweigh
the appellant’s children’s Article 8 rights and for extradition to be ordered.
Fiona Brown v East Lothian Council  CSOH 62, 26 April 2013
Procedure Roll: Relevancy and specification of an action for damages for personal injuries sustained when a self-employed fitness instructer fell whilst taking a fitness class. The pursuer averred that she ordinaraly used a gymnasium to take her class. On the occasion, the usual gymnasium was booked. She made alternative arrangements with the owners and occupiers of a town house. The pursuer averred that, due to the uneven, undulating surface of the floor at the town house, she lost her footing and fell to her injury. She sued the occupiers at common law and under the regulations 5 and regulations 12 (1) of the Workplace (Health, Safety and Welfare) Regulations 1992. Contended by the defenders: the town house was not a 'workplace' in terms of the 1992 regulation; there were insufficient averments on record to support a case under common law; that any liability in any event had been excluded by contract. The pursuer contended that the case at common law and under the regulations met the appropriate standards of relevancy and specification and; that the contractual provisions excluding liability were contrary to the Unfair Contract Terms Act 1977. Considered: the meaning of 'workplace' as distinct from a 'place of work' under the regulations. Held: the pursuer did not offer to prove that the occupiers of the town house knew that it was to be used for work rather than leisure; that the pursuer could not show, in the absence of such averments that the town house was 'made available to the pursuer as a place of work' in terms of the regulations; that the statutory case should be dismissed; that the common law case was sufficiently pled and; that the contract term restricting liability was void.