Privilege: Communications prior to Issue of Proceedings. The “without prejudice” rule could apply to communications made in the course of a dispute notwithstanding that litigation had not yet begun. The claim to privilege could not turn purely on temporal considerations. The question of proximity related to the subject matter of the dispute rather than to how long before the threat, or start, of litigation it was aired in negotiations between the parties. The crucial consideration was whether ...
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Appeals against the Same Order. It would stultify the procedure introduced by the Administration of Justice Act 1969 s.12 and s.13 if different appeals against the same order were to proceed in parallel in different courts. The words “leave is granted” in s.13(2) had to be understood to refer to an unconditional grant of leave or a grant of leave subject to conditions which were accepted or
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Privilege against Self-Incrimination. The privilege against self-incrimination could not be invoked in respect of evidence which existed independently of any compulsory questioning of a defendant or any application of the Court’s compulsory discovery process. The appellant had sought to overturn a decision that images found on his computer when a search order was exercised should be disclosed to the police. It was held that the material constituted “independent evidence” even though it had der ...
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Privilege: Status of Documents arising from Meeting between the Parties. Where the Defendants had sought disclosure of documents arising out of a meeting between the Claimants’ lawyers and lawyers representing Part 20 Defendants, the claimants’ claim to withhold protection based on “without prejudice” privilege would be rejected as the meeting had not concerned settlement of the dispute. The Claimants would be ordered to consider the documents and decide whether any, or any part, of them was d ...
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Here counsel for the Accused sought a sixth continuation of the preliminary hearing to enable the defence to obtain a report from a neuro-psychologist who had been identified but not instructed. The court considered whether the defence motion, unopposed by the Crown, should be granted.
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Appeal to Sheriff Principal
At debate the Sheriff heard parties on the respondents' plea of lack of specification of the appellants' case. The Sheriff dismissed the action. Against that interlocutor the appellants appealled here. It was submitted for the appellants stated that on the basis of the material placed before the Sheriff, he erred in law in dismissing the action and that the case was sufficiently specific and should have been admitted to probation. The court here considered whether the respondents, on the basis o ...
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Procedure Roll - Fraudulent Representation
At debate, on behalf of the defender, it was submitted that the action should be dismissed or that in any event certain averments should not be admitted to probation. It was submitted for the defenders (1) that the action as pled was irrelevant because the pursuers had failed to adequately aver any statement which could be said to be untrue and which induced the contract; (2) that certain averments made about a purported contract between Kinnaird Homes Limited and Kinnaird Homes (West Kilbride) ...
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Interdict - Restrictive Covenant
On 19 January 2007 Lord Brodie granted interim interdict under the four separate heads of the petition. The petitioners had founded upon alleged restrictive covenants which were said by the petitioners to have been incorporated into the contract of employment of the first respondent. On 19 February 2007 the respondents enrolled for recall of those interim interdicts. It was submitted on behalf of the respondents that the interim interdicts should be recalled on the basis (1) that the restrictive ...
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Discretion to make orders in a split trial. The discretion of a trial judge under CPR Part 44 was wide enough to allow him, after a finding of liability in a split trial, to reserve costs to allow for the taking of an account of profits. The CPR allowed the judge to make a wide variety of orders in such circumstances; he was not required by the CPR to make an immediate decision on costs, and he had a discretion to postpone it until quantum had been finally determined.
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Partial summary judgment where Defendants are jointly liable. When considering an application made pursuant to CPR Part 24 where the Defendants were jointly liable and one Defendant had subsequently entered into settlement negotiations, it was appropriate to enter a partial summary judgment for half of the amount sought as a realistic means to avoid double recovery and to reflect the loss attributable to each individual Defendant.
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