Smith v. Governor and Company of the Bank of Scotland, [1997] UKHL 26
Citation:Smith v. Governor and Company of the Bank of Scotland, [1997] UKHL 26
Rule of thumb:Can Judgments from English Courts be relied upon in Scotland? Yes, is the general answer, and the answer will only be no in exceptional circumstances. Scottish and English contract law are presumed to be the same, and a Judge will have to be persuaded that there are economic justifications to make one different from the other one otherwise the default position that they are the same must be applied.
Judgment:
In general, the law in England & Wales is presumed to be the same as in Scotland, subject to exception. This is particularly the case in relation to contract law and commercial law generally. This is a seminal case on jurisprudence in contract law. English and Scottish cases are interchangeable as authorities when making legal arguments in each jurisdiction, and if there is to be a difference then it only occurs in exceptional circumstances to avoid monolithic uniformity.
Ratio-decidendi:
‘Counsel for the bank cautioned against the imposition of a change in the law of Scotland where, as was recognised in Invercargill City Council v. Hamlin [1996] A.C. 624, a monolithic uniformity might be destructive of the individual development of a distinct common law system. But in the present case we are dealing with an area of the law whose development has for a long time been influenced by decisions on the other side of the Border. I am not persuaded that there are any social or economic considerations which would justify a difference in the law between the two jurisdictions in the particular point here under consideration. Indeed when similar transactions with similar institutions or indeed branches of the same institutions may be taking place in both countries there is a clear practical advantage in the preservation of corresponding legal provisions. Furthermore, the development which is here proposed is one which is of clear advantage and usefulness...’ Lord Clyde
'I am not persuaded there are any social or economic difference which would justify a difference in the law between the 2 jurisdictions ... there is a clear practical advantage in the preservation of corresponding legal provisions', Lord Clyde
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.