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As thinking on this point developed, however, the way the objection was explained in para 14 of Lord Clarkes opinion seems to have extended to the human rights claim in the first crave as well. Ratio |
This is because he referred, without distinguishing one crave from the other, to the claims by the appellant involving human rights questions. Ratio |
In para 20 of Docherty v Scottish Ministers Lord President Hamilton indicated that he found it difficult to accept that this passage should be read as meaning that any claim whatsoever against a public authority alleging an infringement of a Convention right must be brought in Scotland by judicial review: Such a proces... |
Such proceedings could, and should, be initiated by action. PRE |
They might be so initiated in the sheriff court. PRE |
I agree, but I do not think that these cautiously worded remarks can be said to dispose entirely of the objection which seems to have been taken to the claim for breach of the substantive obligation under article 3. PRE |
The appellants claim relates to a course of conduct, not an isolated act of physical torture. PRE |
The fallacy which undermines the Extra Divisions whole approach to this issue, however, lies in its assumption that the appellant is seeking an exercise of the courts supervisory jurisdiction. Ratio |
That is not so. Ratio |
He is not asking for the review or setting aside of any decision of the Chief Constable or the Lord Advocate. Ratio |
He is not asking the court to control their actions in that way at all. Ratio |
His case in regard to both craves is based on averments of things done or omitted to be done and actions that were taken or not taken. Ratio |
The allegations are of completed acts or failures to act. Ratio |
He is not seeking to have them corrected in order to provide a foundation for his claim, nor does he need to do so. Ratio |
What he seeks is just satisfaction for the fact that, on his averments, his article 3 Convention rights have been breached. Ratio |
The essence of his claim is simply one of damages. Ratio |
Lord Clarke referred in para 14 of his opinion to Cocks v Thanet District Council [1983] 2 AC 286 where it was held that it would be contrary to public policy and an abuse of process for a person to proceed by way of an ordinary action to establish that a public authoritys decision had infringed rights that were entitl... |
Where private rights depended on prior public law decisions, they must ordinarily be litigated by judicial review. PRE |
As Lord Clarke saw it, the illegal nature of the respondents actings and decisions that was alleged in this case had first to be established before any question could arise as to whether the appellant was entitled to a remedy. PRE |
That had to be done by judicial review, not by an ordinary action in the sheriff court. PRE |
But, as Sedley LJ pointed out in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, para 16, the ground has shifted considerably since Cocks v Thanet District Council was decided. Ratio |
It was established soon afterwards that the requirement for litigation by judicial review could not be a universal rule: Wandsworth London Borough Council v Winder [1985] AC 461. Ratio |
The fact that a claim that was based on a private right had a public law dimension did not mean that it was an abuse of process to proceed by private action: Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624. Ratio |
In para 17 of his judgment in Clark Sedley LJ endorsed the test which was suggested in de Smith, Woolf & Jowells Judicial Review of Administrative Action, 5th ed, (1995) that what should matter was whether the choice of procedure was critical to the outcome. Ratio |
In D v Home Office [2005] EWCA Civ 38, [2006] 1 WLR 1003, para 105 Brooke LJ said that he had no doubt that, if the proceedings in that case in which damages were claimed for false imprisonment in breach of the claimants Convention rights were viable, they were properly brought as a private law action. Ratio |
English authority as to practice in this field must be approached with caution, as the distinction between public and private law has never been regarded as determining the scope of the supervisory jurisdiction of the Court of Session. Ratio |
But the position that has now been reached in England is not difficult to apply in the Scottish context. Ratio |
The sole purpose for which the supervisory jurisdiction of the Court of Session may be exercised is to ensure that a person to whom a power has been delegated or entrusted does not exceed or abuse that jurisdiction or fail to do what it requires: West v Secretary of State for Scotland 1992 SC 385, 413. Ratio |
The proceedings which the appellant has raised are not of that character. Ratio |
As Lord President Hamilton said in Docherty v Scottish Ministers, para 20, the process of judicial review would be quite inept for proceedings in which damages are claimed for an isolated act of physical violence which was in breach of the article 3 Convention right. Ratio |
But the number of acts or incidents cannot sensibly make any difference. Ratio |
Judicial review would be just as inept for a claim of damages for injury and damage sustained as the result of a course of such conduct. Ratio |
On any view the objection that appears to have been taken to the competency of the claim for just satisfaction for breach of the substantive obligation under article 3 must be regarded as misconceived. Ratio |
The objection to the competency of the claim for just satisfaction for breach of the procedural obligation which is the subject of the second crave is in no better position. Ratio |
Here too the claim is in essence one of damages, and judicial review for its determination would be just as inappropriate. Ratio |
The decisions of which the appellant complains do not need to be reviewed and set aside in order to provide him with a basis for his claim. Ratio |
His position can be compared with that of the widow and daughter of James Dow Mitchell who was attacked and killed by his next door neighbour. Ratio |
They brought proceedings against Glasgow City Council as the local housing authority by way of an ordinary action in which they claimed damages for negligence at common law and a judicial remedy under section 8(3) of the Human Rights Act 1998 on the ground that, in failing to remove the neighbour from his house next do... |
It was not suggested at any stage in that case that the claim that was brought under section 8(3) of the Human Rights Act was incompetent. Ratio |
The facts of that case are, of course, different. Ratio |
But, just as in this case, the complaint was of a procedural failure to give effect to the Convention right. Ratio |
And, just as in this case too, it was based on actions taken or not taken and things done or omitted to be done. Ratio |
No orders were being sought to regulate the local authoritys conduct. Ratio |
There was no need to bring the decisions complained of under judicial review to provide a basis for the claim. Ratio |
The decision of the Inner House in Docherty v Scottish Ministers to allow the pursuers claims for just satisfaction for an infringement of their rights under articles 3 and 8 of the Convention to proceed by way of an ordinary action in the sheriff court falls into the same pattern; see also C v Advocate General for Sco... |
I would respectfully endorse the reasons which the Lord President gave in paras 22-24 for rejecting the argument, which was prompted by the decision of the Extra Division in this case, that the actions were incompetent. Ratio |
For these reasons I would hold that, as the objection that was taken to the competency of the second crave in this case was unsound in principle, it is open to this court to differ from the Extra Division and reject the objection. RPC |
(b) the second issue Ratio |
Lord Clarke began his examination of this issue by referring to the well- established principle that one pursuer cannot sue two or three defenders for separate causes of action and put into his summons a conclusion for a lump sum: Ellerman Lines Ltd v Clyde Navigation Trs 1909 SC 690, per Lord President Dunedin at pp 6... |
As Maclaren, Court of Session Practice (1916), p 266 puts it, where there is a single wrong it is competent for a pursuer to ask for a decree for a lump sum against joint delinquents jointly and severally, but not where there are separate wrongs. PRE |
In Liquidators of the Western Bank of Scotland v Douglas (1860) 22 D 447 Lord Justice Clerk Inglis said at p 497 that, if defenders were sought to be subjected in liability on separate and unconnected grounds inferring separate individual liability, the proceeding would be so flagrant a violation of ordinary practice t... |
On the other hand, it is commonplace to have a joint and several conclusion against two delinquents who have both contributed to the loss and damage which the pursuer has suffered. PRE |
That is seen, for this purpose, as a single wrong. PRE |
And joint and several liability may follow where two different breaches of contract have produced a common result: see Grunwald v Hughes 1965 SLT 209. PRE |
In Barr v Neilson (1868) 6 M 651 the pursuer raised an action against a husband and his wife conjunctly and severally or severally for one sum by way of damages in respect of two acts of slander, one by the wife, the other by the husband, on two different occasions. PRE |
It was held that this was incompetent. PRE |
Lord President Inglis said at p 654 that it was out of the question that the two parties could be made conjunctly and severally liable for two disconnected wrongs. PRE |
Lord Deas said at p 655 that he would not be disposed to understand Lord Justice Clerk Ingliss judgment in the Western Bank case to mean that it was not competent to conclude in one summons against six different defenders for six different debts. PRE |
In that case the pursuers sought distinct sums against different individuals in respect of the different periods of time during which the constitution of the board was different, and the action was allowed to proceed. PRE |
But it was clear, on looking at the condescendence as explained by the issues in that case, that no joint liability was concluded for in Barr v Neilson at all. PRE |
In Ellerman Lines Ltd v Clyde Navigation Trs, on the other hand, there was, as the Lord President said at p 692, a perfectly good averment against the defenders as joint delinquents and it was held that the action, in which an award of a single lump sum was being sought against them both, was competent. PRE |
The principle is, as Lord Clarke said, well-established. Ratio |
But his opinion, in which he said that the court was of the view that the action fell to be dismissed as incompetent, was issued to the parties before they had had an opportunity to address it on the point. Ratio |
This was unfortunate, as a careful examination of the pleadings and the authorities would have shown that the principle has not been breached. Ratio |
This is not a case where separate defenders are being sought to be found liable in a single lump sum. Ratio |
There are two craves in which the appellant is seeking an award of damages. Ratio |
The first crave, which is based on averments of assault at common law and a breach of the substantive obligation under article 3, is directed against the Chief Constable only. Ratio |
The second crave, which is based on averments that the procedural obligation under article 3 was breached, is directed against the Chief Constable and the Lord Advocate. Ratio |
Before the Sheriff Principal the word severally was substituted for the words jointly and severally in the crave as originally drafted, but Mr Wolffe QC said that it was his intention to seek leave to restore those words and I would proceed on the assumption that leave will be given for this to be done. Ratio |
It is clear that the wrongs which are the subject of these two craves are separate wrongs, committed at different times by different people. Ratio |
But the appellant is not asking for a decree for the defenders to be found liable in a single lump sum for these separate wrongs. Ratio |
This objection to the competency of the action was misconceived, and it must be rejected. Ratio |
Lord Clarke drew attention in para 15 to the fact that the procedural article 3 claim was the subject of a single crave directed against the Chief Constable and the Lord Advocate severally. Ratio |
He suggested that this perhaps raised another issue about competency. Ratio |
But, as the matter had not been discussed at all, he expressed no concluded view on it. Ratio |
The point was not the subject of argument in this court either, so it would not be appropriate for me to make any comment on it. Ratio |
It is sufficient for present purposes, however, to note that it was not for this reason that the action was held to be incompetent. Ratio |
It is, of course, the case that the appellant has combined two distinct claims, founded on different grounds, in one single action. Ratio |
This raises a different point, to which Lord Clarke referred in para 13 when he said that omnibus pleadings of the sort sought to be applied in this case would defeat the ends of avoiding undue complexity and keeping good order in litigation. Ratio |
If permitted, he said, they would result in litigation bedlam. Ratio |
It is possible to imagine cases where this objection could properly be taken. Ratio |
For example, in Treadwells Drifters Inc v RCL Ltd 1996 SLT 1048 Lord Osborne was faced with an action in which the pursuers were seeking different remedies against four defenders on the one hand and a fifth defender on the other. Ratio |
Although the claims arose from a common sequence of events, the grounds of action against the defenders were different. Ratio |
One was the delict of passing off, and the other was breach of contract. Ratio |
The procedure to be followed in an accounting under a passing off claim was quite different from that for a claim of damages for breach of contract: p 1059J-L. Lord Osborne was unable to see how the court could follow these procedures in one action in a manner that was in accordance with the requirements of justice, an... |
On the other hand the court has permitted actions to proceed against two defenders on separate grounds where considerations of convenience favour letting it proceed to proof as a whole. PRE |
In Yoker Housing Association Ltd v McGurn Logan Duncan & Opfer 1998 SLT 1334 the pursuer sought damages in the same action against a firm of architects and a firm of engineers when defects came to light in works for which they had been responsible. PRE |
They sued the architects for some of those defects and the architects and engineers jointly and severally for the others. PRE |
Lord Maclean rejected the argument that, because the case against the architects was based on one ground and the case that was made against them jointly and severally was based on another, the action was incompetent. PRE |
In Toner v Kean Construction (Scotland) Ltd 2009 SLT 1038 an architect raised an action against developers and a firm of architects subsequently employed by them for breach of copyright in drawings that he had prepared for the developers. PRE |
His case against the developers was that they had breached his copyright by constructing the development in accordance with his drawings. PRE |
His case against the architects was that they had, in breach of copyright, copied substantial parts of drawings which he had prepared for the developers. PRE |
Lord Bannatyne rejected the plea that the action was incompetent. PRE |
The two claims were intimately connected, the respective cases were factually and legally interlinked, and it was manifestly convenient to have the case against the two defenders in the same action. PRE |
If there were to be two separate actions, that would be likely to lead to injustice and manifest inconvenience: para 101. PRE |
Mr Anderson QC for the respondents submitted that the test that should be applied was whether the two claims were so essentially different that they ought not to be tried together. ARG |
The subject matter of the first crave was in very small compass, while the second crave raised separate and quite distinct issues. ARG |
Furthermore the Procurator Fiscal was involved in the second crave but not the first. ARG |
He accepted that convenience had a part to play in the assessment, but there was more to it than that. ARG |
Regard had to be had to the fundamental principle that one action should not be brought for separate and unconnected wrongs. ARG |
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