Revenue Scotland’s website launched

The website can be found here.

Comments Off

‘Private Client Scotland’ preview edition published

So why Private Client Scotland and why now?

Private Client Scotland is something that I have been meaning to get round to over the last few years and now finally have the time to do so. It is also a publication that I believe is needed. A publication that aims to bring together all aspects of private client work from a Scottish perspective.

What does Private Client Scotland aim to cover?

Private Client Scotland will review the latest cases, provide updates on the latest consultations, legislation and official publications and also includes articles, editorials and news items.

What is included in the Preview edition?

The Preview edition of Private Client Scotland includes an editorial which argues for the devolving of control of inheritance tax to the Scottish Parliament. There is also an article on the continuing fall-out from Sheriff Baird’s decision on the validity or otherwise of certain Powers of Attorney.  Included in ‘Case reviews’ is the Judgement by Sheriff Valerie Johnston in the long-running dispute as to where Private Mark Connoly is buried. ‘Professional updates’ include a link to the Scottish Law Commission’s report proposing major reform to our law of trusts.  Lastly the ‘News items’ section includes stories that range from a dispute over a new crematoria in the Scottish Borders to how Delaware proposes to deal with digital assets on death.

The ‘preview edition’ of Private Client Scotland can be found here.

If you are interested in subscribing to ‘Private Client Scotland’ please email me at: james@legalknowledgescotland.com

 

 

Comments Off

Alex McWatters v. Inverclyde Council, 20 August 2014 – Revocation/suspension of Demolition Order

Sheriff Court case in which Mr McWatters sought the revocation or suspension of a Demolition Order over his flat on Bruce Street in Glasgow.

Background
When Mr McWatters bought the flat, in September 2011, it was already subject to a Closing Order. Then, in August 2012, the Council made a Demolition Order in respect of the whole building of which Mr McWatters’ flat formed part (as part of wider regeneration plans for the area).

Closing Orders, which prohibit the use of a house for human habitation, can be made by a local authority[1] where the authority is satisfied that any house (forming part of a larger building) does not meet a tolerable standard[2] and that it ought to be demolished. The owner of the house is then able to offer an undertaking[3] to the local authority that it will bring the house up to a tolerable standard. The local authority can then (if it accepts the undertaking) issue a suspension order suspending the Closing Order or, alternatively, it can issue a Demolition Order. After a Demolition Order has been granted, it can only be revoked if the whole building is brought up to standard.

In this case Mr McWatters argued that he had given undertakings to the Council to bring the whole building up to a tolerable standard and that they had unreasonably refused the undertakings.

Decision
However, the sheriff found that Mr McWatters’ plans for bringing the property up to standard were lacking in detail and costings, and despite the fact that the Demolition Order could only be revoked if the whole building were to be brought up to tolerable standard, he had failed to prove that he had the authority of the other owners in the building authorising him to proceed with a renovation at an open-ended cost on their behalf. As such, Mr McWatters had failed to show that he is was a position financially or practically to complete a renovation of the whole building and his plans were found not only to be wholly lacking in specification and detail but also wholly lacking in credibility.

The sheriff also found that McWatters failed to provide a good reason for interfering with the Council’s decision to demolish the property in support of their regeneration plan, noting in particular that Mr McWatters had failed to take steps to bring his own flat up to standard between purchasing it in September 2011 and the granting of the Demolition Order in August 2012 and that he had also failed to bring the whole building up to standard during the period after the granting of the Demolition Order when he claimed to have the authority of the other owners to do so.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

 

_____________________________________________________

[1] Under s114 of The Housing (Scotland) Act 1987.

[2] For the local authority to proceed by way of a Closing Order there must also be other houses in the building which do meet the tolerable standard.

[3] Under s117 of the 1987 Act.

Comments Off

OPG (Scotland) update on Power of Attorney submissions

“There is a waiting period before your power of attorney (PoA) can be processed and returned to you.

  • EPOAR submissions: 30 day waiting period, we are working on PoAs received on and around 30th September 2014
  • Manual submissions: 11 week waiting period, we are working on PoAs received on and around 29th August 2014

If there is a genuine urgency, we will expedite the registration of a PoA ‘on cause shown’. We ask that people respect this service and only use it in cases of true urgency to avoid defeating its purpose.”

More on this can be found here.

Comments Off

Lorna Dunlop Harley v Mark Thompson [2014] ScotSC 98 – cohabitation of 13 months enough for financial claim

Sheriff Peter Hammond has held that that a relationship of approximately 13 months qualifies as ‘cohabitation’ for the purposes of section 25 of the Family Law (Scotland) Act 2006.

The full case report can be found here.

Comments Off

Jean McNeil Shepherd v. Travelodge Hotels Limited, 7 November 2014 – Hotel’s liability for injury caused by diesel spill in car park where accident occurs some distance from original spill

Outer House case in which Mrs Shepherd sought damages from Travelodge following an injury sustained after slipping and falling following a diesel spill in Travelodge’s car park (situated near Dreghorn Services in Edinburgh).

Mr and Mrs Shepherd were motorcyclists and met other members of the Dunedin Chapter of the Harley Davidson Motor Cycle Club in the Travelodge car park (between 8.30 and 8.45) prior to riding to Staffordshire for an event. Before the bikers arrived there had been a diesel spill in the car park.

A manageress at Travelodge was informed of the spill sometime between 8.15 and 8.30. She logged a job with Travelodge’s maintenance company (in order to have the spill cleaned up) then phoned Travelodge’s health and safety manager and her divisional manager. On the advice of the health and safety manager, the manageress cordoned off the car park and put notices up saying that the car park was closed and advising that there had been spillage.

The bikers left the car park about 9am then stopped at Glencorse Barracks where Mrs Shepherd slipped and fell. The Court found, on the balance of probabilities, that the accident had been caused by diesel picked up by Mrs Shepherd on her boots at the Travelodge car park.

Mrs Shepherd argued that Travelodge were liable for the accident as they:

  1. had breached their duty of care due in terms of s2 of the Occupiers Liability (Scotland) Act 1960;
  2. had breached their common law duty of care; and
  3. were vicariously liable for a breach of duty by the manageress.

Lord Boyd found that the accident had been foreseeable and the fact that it had happened some distance away from the original spill did not matter. In coming to this conclusion he noted that it was important that Mrs Shepherd had slipped as a result of diesel on the sole of her own boots and that it may have been different (i.e. not foreseeable) if she had slipped on diesel transferred to Glencorse on the soles of the boots of the other bikers.

 Lord Boyd also found that there was a duty of care both at common law and under the 1960 Act, noting that Travelodge were occupiers of the car park to which the public had access. That duty conferred an obligation on Travelodge to have a sign posted[1] at the entrance to the car park either closing the car park or at the very least warning people entering the car park of the danger.  The obligation would also extend to advising people who already had cars in the car park of the danger of slipping on the diesel. Travelodge had put up signs in this case, fulfilling the obligation and meeting the duty of care.

As to the actions of the manageress, Lord Boyd found that arguments to the effect that she should have acted more quickly were potentially problematic. From the evidence, the time frame between the Manageress finding out about the spillage and Mr and Mrs Shepherd arriving at the car park may be as little as a few minutes or, at the longest, half an hour. It was suggested that she may have sought the advice from the health and safety manager and carried out her instructions before contacting the maintenance company but Lord Boyd was not satisfied[2], on the balance of probabilities, that even if she had done so, the car park would have been closed before Mr and Mrs Shepherd arrived.

 As a result, Lord Boyd found in favour of Travelodge.

The full judgement is available from Scottish courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

_______________________________________________________

[1] Although the diesel was visible in the wet by means of the distinctive rainbow effect in the water, Lord Boyd did not consider that it would be so obvious to a motorist, motor cyclist or pedestrian that there was no need to put up any sign. As such, the circumstances of this case were very different to those in Leonard v Loch Lomond & Trossachs National Park Authority.

[2] It was noted that the suggestion was made with the benefit of hindsight and it was difficult to say that the manageress was in breach of her duty of care by arranging for the spill to be cleaned up as a priority.

Comments Off

‘Private Client Scotland’ a new quarterly bulletin launching in January 2015

If you are interested in subscribing to ‘Private Client Scotland’ please email me at: james@legalknowledgescotland.com

Private Client Scotland will review the latest cases, provide updates on the latest consultations, legislation and official publications and also includes articles, editorials and news items.

A preview bulletin will be published in November.

Comments Off

The ‘fiscal powers’ debate – an update

If you would like an update on the continuing Scottish ‘fiscal powers’ debate please email me at: james@legalknowledgescotland.com

This update includes:

  • the ‘vow’ made by the ‘NO’ parties
  • the Smith Commission
  • the submissions made to the Smith Commission
  • related happenings throughout the UK
  • what might happen next
Comments Off

Petition of Tesco Stores Limited for Judicial Review of a decision of Perth and Kinross Council dated 13 November 2013, 23 October 2014 – judicial review of decision to modify s75 agreement

Inner House case in which Tesco sought to challenge a decision by Perth and Kinross Council to agree to the removal of a condition contained in a section 75 agreement made with Sainsbury’s.

 The s75 agreement was ancillary to a grant of planning permission allowing Sainsbury’s to construct a large store on a site in Perth to the southwest of the junction between the A9 and A85. There was known to be traffic congestion in the vicinity of the proposed development and Sainsbury’s had put forward a number of proposed road traffic “mitigations” in order to ensure that the new superstore would cause “no net detriment” to the road network. In terms of clause 5 of the s75 Agreement, Sainsbury’s agreed to pay a traffic mitigation sum before it commenced work on the development.  Clause 6 of the Agreement contained a trading restriction to the effect that the new superstore should not open for trading until such time as the Council had let the contract for the construction of the road improvement works.

There was some slippage from the original timetable for the carrying out of the road improvement works which meant that it would not be possible for the Council to let the contract for the construction of the works when originally envisaged. This led to the possibility that Sainsbury’s would end up in the position of having completed the development but be unable to open for trading because of a delay in the letting of the road construction contact.

As a result, Sainsbury’s applied to, and obtained from the Council, a modification of the s75 agreement deleting clause 6 of the agreement.

Tesco (the owner of a nearby store) argued that, in allowing the modification, the Council had:

  1. failed properly to interpret its own development plan;
  2. failed to address a material issue, namely whether clause 6 was still necessary and/or still served a useful purpose;
  3. failed to give adequate or intelligible reasons for its decision and/or had no factual basis for key parts of its decision; and/or
  4. reached a decision that no reasonable planning authority could have reached.

The Inner House rejected all of those arguments and refused Tesco’s petition.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Comments Off

B and G Partners, pursuers & NBSP; against H, defender [2014] ScotSC 94 – validity of powers of attorney

The continuing saga of the validity of Powers of Attorney that use wording the same or similar to that used in styles published by the OPG (Scotland) continues.    

The latest instalment comes from Forfar.  The Sheriff in this matter, Gregor Murray, refused to follow the ruling earlier this year of Sheriff Baird in the ‘NW’ case.

Sheriff Murray “respectfully declined to agree” with Sheriff Baird that every power of attorney must explicitly state the donor’s intentions concerning the onset of incapacity.

The full case report can be found here.

Comments Off