Scottish Court of Session Decisions

On 26 May 1999 the Pensions Ombudsman made a determination in favour of the complainer, Miss Karen E. Rapley. The decision was communicated to the appellants and to Miss Rapley immediately. On the 42^nd day thereafter the appellants lodged an appeal to the Court of Session under the Pensions Scheme Act 1993, section 151(4). That subsection allows an appeal on a point of law but does not govern procedure in relation to the appeal. The procedure in relation to an appeal under section 151(4) of the Act is regulated by Part IX of the Rules of Court. Section 41.41., paragraph (d) requires that the appeal shall be by way of stated case. The timetable is governed by a number of rules, including Rule 41.5., which requires a minute to be sent to the clerk of the Tribunal within 14 days after the issue of the decision or statement of reasons, as the case may be (see 41.5.(3)(b)). The appellants mistakenly thought that the appeal procedure was governed by Rule of Court 41.18. and related rules and that the period for lodging the appeal was the 42 day period contained in Rule 41.20.(1)(b).

When the matter first came before the court on 9 July 1999 the court granted a warrant for service of a copy of the appeal, together with a copy of the interlocutor, on the respondent, Miss Rapley, and appointed a copy of the appeal to be intimated to the Pensions Ombudsman for any interest he might have. On 4 August 1999 the court, on the unopposed motion of the respondent, sisted the appeal to enable the respondent to apply for legal aid. On 2 November 1999 the court heard an opposed motion on behalf of the respondent (Miss Rapley) to recall the sist, to allow the answers to be received and to dismiss the appeal as incompetent, having regard to the appellants' failure to comply with the prescribed timetable and Rule 41.41(d).

Mr. Muir, for the respondent, drew our attention to the failure of the appellants to seek to appeal by the means prescribed by the Rules of Court and to the fact that the notice of appeal was lodged on the 42^nd day after the decision was intimated, rather than within 14 days of that intimation. In these circumstances he invited the court to hold that the appeal should be dismissed as incompetent. Mr. Davies, for the appellants, conceded that the appellants had mistaken the applicable procedure and the appropriate timetable. He drew attention, however, to the Guidance Note sent out by the ombudsman with the determination. The Guidance Note is described as "a Guidance Note for complainants"; but there is a footnote reading "This note is intended primarily for complainants, but for completeness is usually sent to the respondent(s) to the complaint." In that document, under the general heading "If the Ombudsman has decided in your favour" it is stated, "As a rule the appellants have to start an Appeal within 28 days of receiving the Determination (42 days in Scotland).". Mr. Davies said the appellants' advisers had relied upon the Guidance Note which he now accepted was erroneous. He invited the court to relieve the appellants from the consequences of their failure to comply with Rule 41.41 on the ground of mistake or other excusable cause, in terms of Rule of Court 2.1. He also drew attention to the fact that certain of the related annotations to the Rules of Court, and indeed the general heading to Part IX, might be misleading; but he did not suggest that the appellants' advisers had been misled by these.

Although neither party could put a precise value upon the matters in issue they both accepted that the issue was an important one. We noted that the delay directly attributable to the error was 28 days. Having regard to the circumstances to which Mr. Davies drew our attention and to the importance of the case we considered that it would be appropriate to exercise our discretion under Rule of Court 2.1 and to excuse the appellants in respect of their error. Having heard further representations on the matter we concluded that the appropriate course would simply be to give the appellants the opportunity within 14 days from today's date to apply for a stated case. It was felt in this particular instance that the court and the parties would benefit from having a case stated by the ombudsman. In so deciding, we took note of interlocutors pronounced in two other cases in which the appellants in those cases had been relieved in respect of their failure to proceed by way of stated case in terms of Rule of Court 41.41.

We decided that it would be appropriate to issue a brief Opinion in order to remind those who consider making an appeal against a determination by a statutory tribunal of the relevant Rules of Court. It must be kept in mind that the Rules make different provisions in respect of different tribunals constituted under different statutes. Those who are responsible for sending out Guidance Notes to persons who appear before such tribunals must also take care to avoid misleading or inaccurate wording in the Guidance Notes.

The respondent (the complainer) in the present case was not legally aided until October 1999. In the circumstances, her motion for the expenses of the procedure in relation to the present motion was not opposed by the appellants.