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Inland Revenue v. Taylor [2003] ScotCS 278 (05 November 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord MacLean

Lord Macfadyen

Lord Menzies

A1318/02

OPINION OF THE COURT

delivered by LORD MacLEAN

in the case of

THE ADVOCATE GENERAL FOR SCOTLAND for and on behalf of the COMMISSIONERS OF INLAND REVENUE

Pursuer;

against

MAUREEN TAYLOR

Defender;

_______

Act: Hodge, Q.C.; Miss Paterson, H.F. Macdiarmid, Solicitor to the Advocate General

Alt: Miss Crawford (amicus curiae)

5 November 2003

Introduction
[1] This case came before us on a report made in terms of Rule of Court 34.1 by Lord McEwan. The Rule provides that the Lord Ordinary may, at any stage of a cause on intimation to the parties, report the cause or any incidental matter which arises in the course of it, to the Inner House for a ruling. The matter which is the subject of the report, was raised in a motion heard by the Lord Ordinary to grant a warrant to allow the pursuer to inhibit on the dependence of the action. The summons in the action was framed in accordance with Form 13.2A, with warrants for both arrestment and inhibition on the dependence of the action.

[2] When presented to the Lord Ordinary the summons had not passed the signet. Strictly, therefore, there was no cause before him. But we think that that is too technical and narrow a view to take. It is apparent that the form of the summons is pre-printed for use by the Inland Revenue in such cases as this and that, as part of the pre-printed form, it seeks warrants for arrestment and inhibition on the dependence. When the summons was presented for signeting before a Clerk of Session in terms of Rule of Court 13.5 he or she refused to let it pass the signet, applying the decision of Lord Drummond Young in Karl Construction Limited v. Palisade Properties plc 2002 S.L.T. 312. The summons was then placed before the Lord Ordinary and a motion to grant the warrants sought was made to him. Once the Lord Ordinary had decided to refuse to grant the pursuer's motion for warrant for inhibition, which he did on 22 May 2002, the summons passed the signet on the same day. We were not informed about the warrant for arrestment on the dependence which appears in the summons and we are not concerned with it.

[3] Before the Lord Ordinary, the solicitor who appeared for the Inland Revenue, in moving the motion for a warrant to inhibit on the dependence on the action submitted that the Inland Revenue were in possession of certificates issued in terms of section 70 of the Taxes Management Act 1970 and so there was a prima facie case to pursue (Lord Advocate v. Findlay McClure & Co. 1986 S.L.T. 417). The Lord Ordinary was satisfied that that submission was well-founded, based as it was on the authority cited. Mr. Glennie also submitted that the defender had been sued in the past and there was some concern about assets being moved to third parties. Notwithstanding these submissions, the Lord Ordinary held that the pursuer had not established a specific need for the diligence, and he refused the motion in hoc statu. At the same time he reported the matter raised in the cause to the Inner House for a ruling, both in relation to his decision to refuse the pursuer's motion and also about the correctness of the decision in Karl Construction. He concluded in his report: "The former practice over granting diligence on the dependence is now very much in doubt" and that required the consideration of the Inner House in order that a ruling could be given.

[4] The summons, after signeting, was duly served and called. No appearance was entered by the defender and no defences were lodged. There being no contradictor in the process, the Court, on 24 July 2002, appointed an amicus curiae, Miss Crawford, Advocate, and she appeared before us, as did Mr. Hodge, Q.C. and Miss Paterson who appeared for the pursuer.

[5] Rule 13.6 provides as follows:

"When signeted, a summons shall be authority for -

(a) service on the defender designed in the instance;

(b) subject to any other provision in these Rules and the provisions of any

other enactment or rule of law, arrestment to found jurisdiction where a warrant in the appropriate form in Form F13.2-A has been inserted in the summons;

other enactment or rule of law, diligence by -

(i) inhibition on the dependence of the action,

(ii) arrestment on the dependence of the action where there is

conclusion for the payment of money,

(iii) arrestment in rem, or

(iv) dismantling a ship,

where a warrant in the appropriate form in Form 13.2-A has been inserted in the summons; and

(d) Intimation of the summons on any person on whom intimation is

required by these Rules where a warrant for that purpose has been inserted in the summons."

The pursuer's submissions
[6] Mr. Hodge's opening submission was that the present law of diligence on the dependence in Scotland was not compatible with the European Convention on Human Rights and that some change was required. Miss Crawford concurred with this view. Counsel, however, differed as to which provisions of the Convention were contravened and what changes were required to bring the Scots law of diligence on the dependence into line with the Convention provisions. Counsel also approached the law of diligence on the dependence on general principles while acknowledging that there were differences in law between inhibition on the dependence and arrestment on the dependence (cf. Karl Construction per Lord Drummond Young at paragraph 81). We appreciate that the report we have to consider is concerned solely with inhibition on the dependence, but we think that we would fail in the task which has been remitted to us if we did not consider the general law of diligence, including arrestment on the dependence. We are content, therefore, to follow the approach of counsel.

[7] That the Scots law of inhibition on the dependence is said not to be compatible with certain of the provisions of the Convention is closely connected with the scholarly and judicial criticisms of it from Ross's Lectures on Conveyancing and Legal Diligence (1822) to the Scottish Law Commission's report on Diligence on the Dependence and Admiralty Arrestments which was laid before Parliament by the Lord Advocate in March 1998. In Karl Construction Lord Drummond Young considered some of these criticisms, essentially directed against inhibition, between paragraphs 32 and 40 of his Opinion. (Mr. Hodge in his submission said that he took no issue with Lord Drummond Young's discussion). The real mischief is that diligence on the dependence is available as of right in cases where there are pecuniary claims. So, a pursuer with a weak, exaggerated or even an unfounded claim is able to alter the balance of power by tying up the assets of the defender who has only restricted grounds for recall. Moreover, since it is available as of right, damages for its wrongful or unjustified use are available only in exceptional circumstances, and principally only where malice and want of probable cause are established on the part of the pursuer. (Wolthekker v. The Northern Agricultural Company (1862) 1 M. 211; cf. Grant v. The Magistrates of Airdrie 1939 S.C. 738). As Professor Maher, Q.C., wrote in 1995:

"The existing law on diligence on the dependence is far removed from the general principles which inform the equivalent remedies in other legal systems as well as the principles governing related remedies in our own system. In particular the minimal substantive requirements, as well as the weak regard for due process in procedure, result in a process of litigation where it cannot be assumed that its outcome is fair or that justice has been done or seen to be done."

The Scottish Law Commission in their report concluded their section on the Need for Reform as follows:

"In summary, a pursuer's virtually absolute right to use diligence on the dependence is unprincipled and unjust. It is unique to Scotland and does not conform to principles of due process and procedural fairness recognised in other legal systems, in the Commonwealth, North America and Europe. There is at least an appreciable risk that it is not compatible with the European Convention on Human Rights Article 1 First Protocol, though that matter is not free from doubt."

The domestic procedural rules
[8] Every summons must pass the signet. If it is in proper form it is signeted and registered by a Clerk of Session acting under authority from the Principal Clerk (Rule of Court 13.5(3)). When it is signeted, a summons is, subject to any other provisions in the Rules and the provisions of any other enactment or rule of law, authority for diligence by inter alia inhibition on the dependence of the action and arrestment on the dependence of the action where there is a conclusion for the payment of money ... where a warrant in the appropriate form has been inserted in the summons (Rules of Court 13.6(c)(i) and (ii)). So authority for diligence is granted not by a judicial act but by a clerical act in signeting and registering the summons. Provided that the document presented for signeting and registering is in the form of a summons and an appropriate warrant is inserted in it, diligence is granted as of right and no intimation is made on the defender.

The European Convention on Human Rights
[9] Article 1 of the First Protocol provides as follows:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

It is immediately obvious that the first sentence is concerned with the fundamental principle of the protection of a right of property. The following sentence deals with the deprivation of property. The second paragraph is concerned with the State's right to control the use of property in the furtherance of the public interest. Mr. Hodge observed that any restraint on the disposal or use of property would usually involve an interference with the right to use property, unless it were de minimis. He submitted that the Article required a balance to be struck between the interests of the defender and the general interest, and that it gave the contracting States a wide margin of appreciation in striking that balance. Mr. Hodge reminded us that the court in terms of section 5(b) of the Court of Session Act 1988 had the power by Act of Sederunt to prescribe the ambit of the Rules of Court. Originally, there had been a statutory basis for the law of diligence which was to be found in the Personal Diligence Act 1838. Later it passed to the courts and the Rules they were empowered to make.

[10] So, it was for the court to consider the competing interests. These included the interest of the defender in the enjoyment of his property as well as the interest of the pursuer in the enjoyment of his jus crediti - the substance of his claim. Nothing in the Convention, however, said Mr. Hodge, prevented the contracting State, in the exercise of its area of discretion, from adopting the policy of allowing a creditor, commencing a legal action to enforce a claim, to attach his debtor's property or to prevent the voluntary disposal of that property in securing his claim, provided that there were adequate safeguards to protect the interests of the defender. In his submission such a fair balance could be struck without the court innovating upon procedures to the extent advocated by the Lord Ordinary in Karl Construction.

[11] In Sporrong and Lönnroth v. Sweden 1983 5 EHRR 35 the European Court of Human Rights said of Article 1 in paragraph 61 of the judgment:

"That Article comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph. The court must determine, before considering whether the first rule was complied with, whether the last two are applicable."

In reference to the rule contained in the first sentence of the first paragraph the court

"must determine whether a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of Article 1." (paragraph 69).

[12] In James v. United Kingdom 1986 8 EHRR 123 the European Court of Human Rights, in considering whether the Leasehold Reform Act 1967 breached Article 1 of the First Protocol, agreed with the Commission that

"A taking of property effected in pursuance of legitimate social, economic or other policies may be 'in the public interest', even if the community at large has no direct use or enjoyment of the property taken. The Leasehold Reform Legislation is not therefore ipso facto an infringement of Article 1 on this ground." (paragraph 45).

Turning to the margin of appreciation, the court again agreed with the Commission's construction that the United Kingdom Parliament's belief in the existence of a social injustice was not such as could be characterised as manifestly unreasonable. As for the means chosen by the United Kingdom Government to achieve its aim, there had to be a reasonable relationship of proportionality between the means employed and the aim to be realised. This was the "fair balance" to be struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The requisite balance would not be found if the person concerned had to bear "an individual and excessive burden", as the court said in the Sporrong and Lönnroth judgment (paragraph 50).

[13] In Fredin v. Sweden (1991) 13 EHRR 784 at paragraph 51 the court said about the second paragraph of Article 1 of the First Protocol:

"It is well established case law that the second paragraph of Article 1 of Protocol No. 1 must be construed in the light of the principle laid down in the first sentence of the Article. Consequently, an interference must achieve a 'fair balance' between the demands of the general interests of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance is reflected in the structure of Article 1 as a whole, and therefore also in the second paragraph thereof: there must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question."

[14] In National and Provincial Building Society and Others v. United Kingdom (1997) STC 1466 the court, applying amongst other authorities Gasus Dosier v. The Netherlands (1995) 20 EHRR 403, reminded itself that Article 1 of Protocol 1 comprised three distinct rules.

"The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of the peaceful enjoyment of possessions. The second, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

However, the three rules are not 'distinct' in the sense of being unconnected: the second and the third rules are concerned with particular interferences with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule." (paragraph 78).

An interference, "including one resulting from a measure to secure the payment of taxes, must strike a 'fair balance' between the demands of the general interests of the community and the requirements of the protection of the individual's fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 as a whole, including the second paragraph; there must therefore be a reasonable relationship of proportionality between the means employed and the aims pursued." (paragraph 80).

An excessive and individual burden must not be imposed.

[15] Mr. Hodge also referred to Heintrich v. France (1994) 18 EHRR 440, paragraphs 34-50, as also did Miss Crawford. Mr. Hodge suggested that three questions arose from such a consideration of the relevant authorities. First, was it in the general or public interest or, indeed, reasonable for the State to adopt a policy of making available to creditors remedies to attach the debtor's property by inhibition or arrestment or by a preventive order to prevent disposal of property to ensure that debts were met? There were two competing interests. All that, according to Mr. Hodge, was within the State's area of discretion. Second, what protection was there against arbitrariness in domestic procedures to enable diligence to be lawful? Was there scrutiny of the grant by the court? What were the grounds of recall? Third, and closely related to the second question, was the question of proportionality.

[16] In his submission, and in light of the three questions he set out, Lord Drummond Young in Karl Construction at paragraphs 46 and following, erred in the support he sought from an analysis of European systems for the conclusion that in these systems an appearance before a court was necessary before the protective security could be granted, and that that should be followed in Scotland. According to Lord Drummond Young, protective diligence should only be available in special circumstances. This, however, did not allow sufficiently for the margin of appreciation granted to certain authorities within a State. The court had a wide discretion to determine its policy. Other European State practices were not determinative of what this State might do, according to Mr. Hodge. The Strasbourg Court was not in being to harmonise the law nor was it determinative of the margin of appreciation. Just as care should be taken with the use of Canadian decisions in the European context, so also care should be taken with European Court decisions when considering the issues of legitimate aim and proportionality (compare Brown v. Stott 2001 SC (PC) 43 per Lord Hope of Craighead at page 78D).

[17] Lord Drummond Young's opinion was that it was clear from Article 1 of the First Protocol that it was presumed that an owner of property was free to use it and in particular to dispose of it as he wished. The second paragraph reinforced this because it permitted any State that was party to the Convention

"to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions of penalties".

Lord Drummond Young's view was that the reference to necessity in the Article indicated that there had to be a valid reason for any interference with the right to use or to dispose of the property. On the other hand, the second paragraph permitted such laws as the State deemed necessary. That wording allowed the State a wide margin of appreciation both in choosing the means of enforcement and in ascertaining whether the consequences of enforcement were justified in the general interest. Yet, Lord Drummond Young considered that the presumption seemed to be in favour of use and disposal and there had to be an objectively valid need to take away that freedom.

[18] Mr. Hodge submitted that Lord Drummond Young read too much into the second paragraph of Article 1. It recognised that the State had a right to introduce in this area laws which were in the public interest and a wide margin of appreciation was allowed. Such laws did not require that the possible dissipation of assets on the part of the defender should be shown. A creditor needed only to have a prima facie case. It was not the case, as Lord Drummond Young thought, that to justify the grant of an interim remedy it would generally be necessary to demonstrate that there was a significant risk of the defender's insolvency or that the defender was taking steps to conceal or dissipate his assets or that there was a significant risk that the defender would remove his assets from the jurisdiction. After all, Mr. Hodge pointed out, there were those who would not pay rather than those who could not pay.

[19] Against this background Mr. Hodge submitted that there should be a requirement that the pursuer should justify the application by establishing that he had a prima facie claim which was not otherwise secured. Some creditors could show that easily, as for example by relying on the terms of a bank guarantee or, in the case of the Inland Revenue, by proffering a certificate under section 70. A hearing in such cases would not be necessary: a Clerk of Court's signature might suffice. In the middle range of cases, as where, for example, a debt had to be collected following submission of an invoice, the pursuer might have to make representations in writing to justify the application. There was a third class of cases where the claim was for damages which were illiquid and dependent upon the establishment of liability. One would then, said Mr. Hodge, be looking at the circumstances of the defender, probably in terms of the dissipation of assets and the like. As Mr. Hodge put it, the deficiency of Lord Drummond Young's approach was that he required a full hearing for a fully vouched claim. That would be very burdensome for the judicial system. The hypothesis was that, if there was a sound prima facie case against a well-known plc company, then the company should have met that obligation. So protection should be granted sibi imputet.

[20] The current grounds for recall were not sufficiently wide and should be enhanced. By requiring the pursuer to justify the diligence at the outset the grounds for recall would be enhanced. Consequentially, there might be liability in damages. Lord Drummond Young took the view that

"if protective attachment is used without an objective justification and in particular if the pursuer is unsuccessful in the action, the defender should be entitled to damages for any loss he has suffered in consequence of the attachment." (Karl Construction Co. paragraph 54, requirement 4; Grant v. Magistrates of Airdrie; and Wolthekker v. Northern Agricultural Co.).

If diligence were granted as of right, then malice and want of probable cause would require to be established. But, in this case, the Lord Ordinary had sufficient vouching for him to be assured that a prima facie debt was due. Clearly, however, Rule of Court 13.6(c)(i) and (ii) required to be changed. So also did Rule of Court 59.1(3). It provides as follows:

"Except where the application is in Form 59.1-E, if the Deputy Principal Clerk is satisfied that the applicant for such letters is entitled to a warrant for arrestment or inhibition

(a) he shall sign and date the warrant in such an application; and

(b) the application shall be signeted;

and such signeted application and warrant shall constitute letters of arrestment or inhibition, as the case may be."

Mr. Hodge submitted that in this context there was no proper distinction to be drawn between inhibition and arrestment. So, Lord Drummond Young's reasoning on any distinction should not be followed. In the meantime, a view should be expressed that when an action was raised, applications for a warrant should not be filled in. That applied, of course, also to arrestment in rem or dismantling a ship in terms of Rule of Court 13.6(iii) and (iv).

[21] Mr. Hodge turned to the specific position of the Inland Revenue and referred to sections 9, 9C and 28C of the Taxes Management Act 1970 (as amended) together with the case of The Lord Advocate v. McKenna 1989 S.L.T. 460. Section 70 of the Act provided that a certificate issued thereunder by an inspector or other officer of the Board of Inland Revenue, together with the certificate of the collector of taxes that no payment had been made to him, were to be sufficient evidence that the sums in the certificates were unpaid and due to the Crown, until the contrary was proved. Reference was also made to the cases of The Lord Advocate v. Findlay McClure & Co. and The Advocate General v. Shepherd (unreported but dated 10 July 2001). Given the statutory effect of section 70 certificates Mr. Hodge said that it would be a waste of judicial time to have the Revenue solicitor appear before the court on every occasion. A hearing was not required in all cases.

Submissions made by the amicus curiae

[22] Miss Crawford drew our attention to the Sheriff Court Rules in terms of the Sheriff Courts (Scotland) Act 1907, and in particular Rules 3.3 and 3.5. While at one time warrants used to be signed by the Sheriff Clerk, that was no longer the case. So, the problem affected the Sheriff Court as much as the Court of Session.

[23] She pointed out the principal features of diligence on the dependence. An inhibition could be obtained as of right. There was no judicial scrutiny of the application. There was no intimation to the defender. That inevitably altered the balance between the parties in favour of the pursuer. Inhibition attached all the defender's heritable property regardless of the debt it was sought to secure. There was no remedy in damages, except in exceptional circumstances where malice and want of probable cause were established. There would, of course, be a remedy if the warrant had been obtained on representations. Further, no caveat procedure was available. An inhibition could extend for up to five years from the date of registration (see section 44(3)(a) of the Conveyancing (Scotland) Act 1924). In the case of arrestment its duration was three years from the date of decree which ultimately constituted the debt (The Debtors (Scotland) Act 1838 section 22, as amended by Schedule 6 of the Debtors (Scotland) Act 1987). The defender could seek to recall the diligence only in very limited circumstances. It attached to all property, irrespective of the amount to be secured. Finally, if the pursuer eventually obtained decree, he could use the diligence obtained on the dependence as diligence in execution.

[24] She also referred to the relevant English provisions, especially those in the R.S.C. 25.1(f), 25.2 and 25.3. In accordance with Practice Directions affidavits had to be lodged. Judicial control, Miss Crawford observed, was exercised at a very early stage.

[25] Convention rights were engaged by Rule of Court 13.6. In the first sentence of Article 6.1 of the Convention the emphasis was on the determination of civil rights and obligations. But according to Convention jurisprudence, the classification and substance of these did not depend upon domestic law (Konig v. Germany Series A 1997 No. 27 paragraphs 88-90). In this case it was not disputed that Article 1 of Protocol 1 was engaged. In such cases the aim was to achieve a fair balance between the parties (see Heintrich v. France (1994) 18 EHRR 440 for a discussion of the proportionality of the interference with the individual's rights). To ensure such fairness there had to be sufficient safeguards, according to Miss Crawford.

[26] In the first place there should be judicial scrutiny at the time of application. There had also to be sufficient cause shown for the remedies sought. Some need or necessity had to be advanced as a reasonable foundation for the remedy to be sought. If there was no urgency there should be a right to be heard at the time of application available to both parties. This would inevitably mean the hearing of a motion at which it could be decided for instance whether there should be a limit on the property to be attached by the diligence or whether the pursuer should be ordained to lodge caution or the like for an ultimate damages claim. The legitimacy of the interference could then be tested. If that were done, the Inland Revenue, as in England, would be no better placed to seek diligence than any ordinary creditor.

[27] The present situation disclosed a lack of proportionality. There was no protection against arbitrariness. There was an excessive burden on the defender; an inability to challenge; and inflexibility. What was to be done about this?

[28] Miss Crawford turned to section 3 of the Human Rights Act 1998 for assistance. The section provides in subsection (1) that so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. This, as Miss Carmichael pointed out, is a wide interpretative position. As Lord Steyn said in R. v. A. (No. 2) 2001 2 WLR 1546 at 1563:

"Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: section 3 goes much further."

Later, on the same page, he went on:

"In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so."

See also Lord Hope of Craighead at page 1582, paragraph 108. So if it were possible to do so, Rule of Court 13.6(c) should be read and given effect to in a way that was compatible with Convention rights. That provision, it should be noted, is prefaced by the words: "Subject to ... the provisions of any other enactment or rule of law.". (That in our opinion must include the provisions of the Convention).

[29] Taking into account what the E. Ct. H.R. said at paragraph 49 in James v. The United Kingdom about the State's margin of appreciation and whether it could be said that the provision in issue was manifestly unreasonable, Miss Crawford insisted that there had to be additional controls by the court for the Rule to be compatible with the Convention. It was not enough that there should be a prima facie case. The diligence must be necessary. There had to be a reasonable foundation for it to be manifestly reasonable. The Rule should provide for a grant of the diligence on special cause shown in the sense that there was a prima facie case and need had been demonstrated. If these safeguards and controls were in place, the Rule would be compatible. Finally Miss Crawford submitted a new draft Rule of Court in terms which were consistent with her submission.

The pursuer's response
[30] Mr. Hodge, in reply, said it was important to appreciate that, in terms of Article 6 of the Convention, there was no determination of the individual's civil rights and obligations: but an unfair exercise of diligence could result in a breach of Article 6.1. Thus a defender could be concussed into settlement. But Mr. Hodge demurred to the suggestion that the grant of the warrant in itself could result in a breach of Article 6.1. None of the authorities vouched that this was the determination of a civil right. In any event, if the Article 1, Protocol 1 point was met, the question of a breach of Article 6.1 did not arise. Mr. Hodge was critical of Miss Crawford's draft Rule because it required a hearing in court. That requirement was consistent with the view she had taken on Article 6.1 in relation to the Rule as it currently stands.

Discussion
[31] Counsel were agreed that the current Scots law of diligence is not compatible with the European Convention on Human Rights and that some change is required. That, in our view, is obviously so, for all the reasons advanced by counsel, by Lord Drummond Young in Karl Construction, by Professor Maher, Q.C., and by the Scottish Law Commission in their report. The essential mischief which has to be addressed is that diligence is available as of right, irrespective of whether the pursuer's claim is well-founded in fact or in law and without any judicial assessment of the validity or otherwise or the strength or weakness of that claim. The first question which we must consider is whether the current procedure contravenes Article 6.1, as Miss Crawford urged upon us. We consider that it does not, because the civil rights and obligations of an individual are not determined, in the sense of being decided, concluded or settled, simply by the grant of the warrant itself. If that is correct, the grant of warrant does not require a fair and public hearing by an independent and impartial tribunal established by law as Article 6.1 requires. The concentration must therefore be on the provisions of Article 1 of the First Protocol.

[32] The very language of the Article makes it clear, as indeed the authorities show, that the State has a wide margin of appreciation in the application of its domestic law in relation to the Article. We have in mind here the reference in the first paragraph to the public interest and in the second paragraph to the State's right to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or secure the payment of taxes or other contributions of penalties. So the State has a considerable freedom to legislate, provided that it keeps within the bounds of the Article. We are conscious that, if warrant to inhibit is to be obtained only on grounds which satisfy a judge, there may be need for legislation to provide wider grounds for recall, permitting recall where the grounds on which warrant was granted can be shown to have been inadequate. Legislation may also be required to provide for a remedy in the case where diligence has been granted in favour of a party who ultimately is not successful. We do not see however how Rule of Court 13.6 and Rule of Court 59.1 can be interpreted by application of section 3 of the Human Rights Act 1998 in such a way as to make them compatible with the Convention. The court, however, has the power to regulate its own procedure. So it can alter the terms of the Rules of Court, and in particular, so far as the Court of Session is concerned, Rules 13.6 and 59.1. No doubt there will be full consultation on this matter with the Rules Council. Similar consideration will have to be given to appropriate changes to Sheriff Court Rules 3.3 and 3.5.

[33] It seems to us that what is required to cure the current mischief and to bring our law on the obtaining of diligence within Article 1 of the First Protocol, is that the grant of warrant should in essence be a judicial act. This in our opinion does not mean that in every case there must be a hearing in court before a judge. It does, however, mean that an application is made to the court for a warrant and that such an application is judicially considered before it is granted. As Mr. Hodge pointed out, applications will be made in a wide range of circumstances, and for understandable reasons, he put the Inland Revenue holding a section 70 certificate at the top of that range. We think that a judge must himself consider the material placed before him before deciding to grant warrant for diligence or to refuse it. To do this, however, does not require him to sit in court or hear the applicant or the parties orally. We envisage that the Clerk of Court will place the papers before the judge. Having considered the papers and in particular the grounds put forward in averment for the granting of warrant, the judge may grant the application. If he is not satisfied with the application and the grounds for it, he may refuse it at that point; or he may put it out for a hearing; or order intimation to the other party or parties before convening a hearing in court. The important point is that it passes before the judge. To achieve that change amendment to the Rules of Court will be required. We fully appreciate that such procedure will inevitably add to the work of the court but that is the price to be paid for rectifying the mischief and achieving conformity with the Convention provisions. No doubt the appropriate authorities will make the necessary resources available to meet such an increase in work.

[34] We have in mind that the applicant for a warrant or for letters of inhibition need only establish a prima facie case on the merits of the action. The necessity for diligence need not be demonstrated although it may no doubt assist the grant if it is. But the applicant will have to demonstrate that the diligence sought is proportionate to the claim. In the meantime, until the necessary changes to the Rules of Court are made, warrants in terms of Rule of Court 13.6(c) should not be filled in. The situation is somewhat more problematic when it comes to Rule of Court 59 but we think it would be advisable that all such applications in terms of the Rule should be placed before a Lord Ordinary, at least in the meantime.