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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Johnston v. The Scottish Ministers [2005] ScotCS CSOH_68 (27 May 2005)
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Cite as: [2005] CSOH 68, 2006 SCLR 5, [2005] ScotCS CSOH_68
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Johnston v. The Scottish Ministers [2005] ScotCS CSOH_68 (27 May 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 68 |
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A403/03
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OPINION OF LADY DORRIAN in the cause NIGEL MAURICE JOHNSTON Pursuer; against SCOTTISH MINISTERS Defenders:
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Pursuer: A O'Neill, Q.C., Balfour & Manson
Defenders: Dunlop, Q.C., Solicitor to the Scottish Executive
27 May 2005
Introduction
[1] The Inshore Fishing (Prohibition of Carriage of Monofilament Gill Nets) Order 1986 provided by article 3 that "the carriage of monfilament gill nets for any purpose in a British fishing boat in the specified sea area is prohibited". By virtue of the definition of "specified sea area" the prohibition applied, in effect, anywhere within 6 miles of the coast of Scotland. The order took effect from 31 March 1986. The order was passed following concerns that such nets were being used for salmon poaching in Scottish inshore waters, the salmon having to pass through such waters to reach their spawning grounds. The order was made under section 2 of the Inshore Fishing (Scotland) Act 1984 and Regulation 19.3 of Council Regulation 171/83, the agreement in advance of the European Commission having been obtained as required by Article 19.3 of the Regulation. The Regulation lays down technical measures for the conservation of fishery resources in community waters. Article19.2 of the Regulation authorises member states to lay down any strictly local conditions or detailed arrangements, applying to their national fishermen only, designed to limit catches by technical measures, provided that such measures are compatible with community law and the common fisheries policy. Article 19.3 requires member states to obtain the agreement of the Commission before adopting any measure under Article 19.2. [2] The order had been passed in the face of opposition from sections of the Scottish fishing industry interested in the use of such nets for legitimate purposes. Amongst representations made by the Highland and Islands Fisherman's Association and the Scottish Fishermen's Federation was the contention that the proposed ban was disproportionate to the mischief it sought to address and would have a discriminatory effect on Scottish fisherman, the ban not applying to other Europeans fishing in Scottish waters. In 1995 the Mallaig and North West Fishermen's Association sought to challenge the order by Judicial Review. At that time a consultation process was embarked upon by the Secretary of State for Scotland which led to the revocation of the 1986 Order by the Inshore Fishing (Monofilament Gill Nets) (Scotland) Order 1996 which replaced the blanket ban with a prohibition on the carrying of monofilament nets with a mesh size of less than 250 mm. The Judicial Review did not proceed. [3] Between 1986 and 1991 the pursuer continued to carry monofilament gill nets within Scottish waters, the nets carried by him having a mesh size of some ten and a half inches. This would not have been in breach of the 1996 Order but was in breach of the 1986 Order, under which he was prosecuted. The pursuer went to trial at Fort William Sheriff Court where he was acquitted by the Sheriff on the basis (1) that the order was ultra vires for lack of appropriate consultation before its passing; and (2) that his nets fell outwith the order since they were used to catch flat fish other than by trapping them by the gills. The Procurator Fiscal appealed and the High Court concluded (1) that the order was not ultra vires and (2) that the nets in question fell within the definition of monofilament nets for the purposes of the order. The pursuer claims that as a result of being subject to the prohibition in the 1986 order he sustained certain losses commencing from July 1986 when his nets were confiscated. He maintains that the losses continued after the nets were returned to him because he was forced, as a result of the order, to leave them unattended in Ireland while returning to Mallaig to land his catch. The details of the losses he avers can be found in Article 9 of condescendence. He seeks to recover these losses from the defender on the basis that the 1986 Order was in breach of community law and this breach led directly to the losses sustained by him.The Pleadings
[4] The basis of the alleged illegality is set out in Article 6 of condescendence, specifically at page 15B which narrates: "Accordingly, the 1986 Order made by the defender was made in breach of EU law and more particularly in breach of the general principles of Community law recognising the pursuer's fundamental right to property and to peaceful enjoyment of possessions and his freedom to pursue his chosen trade or business, in respect that it was arbitrary, lacking in sufficient justification, not based upon objective criteria and hence was disproportionate." That the basis of the claim is an alleged fundamental illegality is also apparent from Article 7 at page 16 which states "the said Order was made in breach of EU law in respect that it discriminated, without justification, against fishermen based in Scottish ports, such as the pursuer, compared with fishermen from the United Kingdom and other countries in the EU. It also discriminated without justification, against British fishermen as compared with fishermen from other countries in the European Union. Further, in making the 1986 Order in breach of EU law, the defender unlawfully interfered with the right of fishermen in Scotland, including the pursuer, to the free exercise of their professional activity." [5] Thus far it will be seen that the wrong complained of by the pursuer, and in consequence of which he claims to have sustained loss, consisted in the allegedly unlawful passing of the 1986 order. This accords with the first two pleas in law for the pursuer which read as follows:"1. The 1986 Order made by the defender having been made in breach of EU law in respect that it unlawfully discriminated against inter alia the pursuer, and the pursuer having suffered loss thereby, the pursuer is entitled to reparation therefor.
2. The 1986 Order made by the defender having been made in breach of EU law in respect that it was a disproportionate measure and the pursuer having suffered loss thereby, the pursuer is entitled to reparation therefor."
However, in Article 8 of condescendence the pursuer avers that representations were made "in extensive correspondence and in meetings" to persuade the defender to reconsider and either amend the 1986 Order or withdraw it. He goes on to aver that "The defender did not properly review the 1986 Order in the light of the said representations until late 1995. Accordingly, he failed in his duty to keep the measure under proper review and hence further breached EU law." Article 8 avers that there was no good reason why the 1986 Order was not, like the 1996 Order, restricted to nets of a certain mesh size and that "No good reason exists as to why the defender wholly failed, in the period between 1986 and late 1995, to review the 1986 Order and to make the alteration subsequently made by the 1996 Order." It avers that the defender's original justification for the 1986 order was to prevent salmon poaching and avers "No explanation was put forward in the Explanatory Note as to the reasons for the revocation of the 1986 prohibition on the carriage of monofilament gill nets on Scottish waters." A plea in law relating to this article appears as the third plea in law as follows:
"3. The defender having breached EU law in respect that in the period from 1985 until 1995 he failed properly to review the need for the 1986 Order, and the pursuer having suffered loss thereby, the pursuer is entitled to reparation therefor."
The Arguments
[6] The case came before me on the procedure roll on the defenders' preliminary pleas. In addition to a general plea to relevancy and competency the defenders have pleas in respect of time bar and waiver. The parties had indicated that two days would be required for determination of the issues between them but by the time the case called before me only a day and a half of court time remained. Counsel for the parties accordingly reached agreement that only one part of the main arguments would proceed before me, being a discrete point which would be unaffected by the remaining issues. This was the time bar point which is raised in the second plea in law. There was also what counsel for the defenders described as a consequent relevancy and specification point, in relation to the pursuer's pleadings in article 8 and his third plea in law. Arguments in relation to waiver, the effect of Walkingshaw v Marshall 1992 SLT 1167 and any other matters would be left for another day if necessary. The central question which I required to address was thus: on the assumption that the pursuer otherwise has a valid claim, is it defeated by the operation of prescription?Prescription
[7] Parties were in agreement that the present action, as an action of damages, is one to which sections 6 and 11 of the Prescription and Limitation (Scotland) Act 1973 applies. The pursuer avers that he first suffered loss in 1986. This action was not raised until September or October 1995. The defenders' primary argument was therefore that any right to damages arising from the making of the order had prescribed by that time. The critical issue between the parties related to the determination of the "appropriate date" for the purposes of sections 6(1) and (3) of the 1973 Act, i.e. when did the obligation become enforceable? [8] For the defenders it was maintained that this question fell to be determined by reference to section 11(1) of the 1973 Act, which provides:"11- (1) Subject to subsections (2) and (3) below, any obligation ..........to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 of this Act as having become enforceable on the date when the loss, injury or damage occurred."
Under reference to Dunlop v McGowans 1980 SC (HL) 73 counsel for the defender submitted that an obligation to make reparation for an act, neglect or default was a single and indivisible obligation occurring when injuria concurs with damnum. In the present case she submitted, the act, neglect or default was the passing of the 1986 Order. On the basis of the pursuer's pleadings there had been concurrence of injuria and damnum during 1986 by which time it is averred that a loss of some materiality had been sustained. Since the present action had not been raised until 1995, it followed that it was defeated by the operation of sections 6 and 11 of the 1973 Act.
[9] For the pursuer it was argued that the case was one of a continuing act, neglect or default to which Section 11 (2) of the 1973 Act applied. That subsection provides:"11 (2) Where as a result of a continuing act, neglect or default loss, injury or damage has occurred before the cessation of the act, neglect or default the loss injury or damage shall be deemed for the purposes of subsection (1) above to have occurred on the date when the act, neglect or default ceased."
The argument for the defenders was that this was a continuing act, neglect or default which ceased only in 1996 when the earlier Order was revoked. The basic argument was that the defenders had acted unlawfully throughout the period, incompatibly with EU law, and that this constituted the "act, neglect or default" on which the pursuer relied. The case, counsel submitted, was either one of a continuing act - the maintenance in force, prosecution and enforcement of the provision; or it was a continuing neglect or default in failing to revise or revoke the provision prior to 1996.
[10] Counsel relied on a number of cases in employment or discrimination law from which he sought to draw principles which by analogy he submitted applied to the present case. He referred to R v Secretary of State for Employment Ex parte Equal Opportunities Commission and Another [1995] 1AC 1 in which a declaration was pronounced that certain provisions of the Employment Protection (Consolidation) Act 1978 were incompatible with EU law. The provisions had been on the statute books for 12 years and Counsel relied on the decision for submitting that the correct analysis was that the provisions had been incompatible throughout - that it was and remained incompatible on a continuing basis. Counsel also sought to draw analogies with various cases in discrimination law on the basis of a comparison with section 68 of the Race Relations Act 1976 which provided as follows:" (1) An industrial tribunal shall not consider a complaint......unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done......
(7) For the purposes of this section (a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and (b) any act extending over a period shall be treated as done at the end of the period; and (c) a deliberate omission shall be treated as done when the person in question decided upon it;..."
This, he said, effectively amounted to a continuing act and was useful for addressing the question of what is a continuing act for the purposes of section 11(2). He referred to Barclays Bank Plc v Kapur and Others [1991] 2 AC 355 which related to a decision of the bank not to credit re-located employees, for pension purposes, with their previous service in East Africa. The employees had been re-located to the United Kingdom some time in the early 1970s all upon terms that their prior service was not to count towards their pension entitlement. In 1987 they complained to an Industrial Tribunal that they had been discriminated against on the grounds of race. It was held that the decision not to credit their previous service was an "act extending over a period" and that the employees' complaints to an Industrial Tribunal were not time-barred. The decision was considered to be a "continuing act" and by analogy the continuation in force of a legislative provision was to be treated as a continuing act for the purposes of the 1973 Act. The distinction, he submitted, was between a continuing state of affairs and a one-off decision. He also referred to Owusu v London Fire & Civil Defence Authority [1995] IRLR 574 another case under section 68 of the Race Relations Act 1976 where the distinction between a one-off situation and an act extending over a period of time was considered. Under reference to this case Counsel submitted that an act extends over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. A series of decisions made under a discriminatory policy would be capable of constituting an act extending over a period of time - Cast v Croydon College [1998] ICR 500. Finally on this part of the case, counsel relied upon Phonographic Performance Ltd v Department of Trade and Industry and another [2004] EWHC 1795(Ch) in which the failure to implement an EU directive by the due date was considered for the purposes of the Limitation Act 1980 to be a continuing act.
[11] In reply Counsel for the defenders concentrated attention on the wrong which the pursuer complained of in the pleadings, namely that the making of the order was in breach of European law. She submitted that the defenders, in the capacity of legislators, require to balance various interests - salmon lobby, gill nets lobby, their own policy etc - and such an exercise was of necessity a "snapshot" exercise. When the order was passed the act was finished. "Enactment, maintenance and enforcement" cannot all constitute the same "continuing act" when they are not themselves actings of the same character. Enactment and enforcement are acts of a different character. Maintenance is not in any ordinary way an "act" at all. A continuing act for the purposes of section 11(2) would be something of the same character throughout. The Pursuer is failing to distinguish between a continuing act and an act with continuing effects. A "continuing act" means something like nuisance. Looking at non-implementation cases does not help - non implementation is an omission, a continuing neglect and would probably fit into section 11(2). Nor are the discrimination cases a helpful aid to statutory construction - this would generally be helpful only if the same phrase was used. [12] Counsel then referred to Marriage v East Norfolk River Catchment Board [1949] 2KB 456 a case decided under the Limitation Act 1939, section 1(1) of which provided that "...........where the act, neglect or default is a continuing one, no cause of action in respect thereof shall be deemed to have accrued, for the purposes of this subsection, until the act, neglect or default has ceased." An action of damages was raised against defendants who had dredged a river, depositing material on the bank raising the level thereof and thus leading to flooding. The allegedly wrongful act of depositing material on the bank had stopped in 1944. Any action after that date would require to be based on a different breach of duty and since there was no duty on the defendants to remove the dredged material there was no continuing act, neglect or default. Counsel drew an analogy by referring to the different duties here: the duty not to pass the order and then the duty to do something about it once passed. [13] In response, counsel for the pursuer maintained that the Order had created a state of affairs contrary to European law and that state of affairs was maintained. The Pursuer's position covers failure to implement, refusal to do so or improper implement. No distinction fell to be made between an act and an omission. Aspects of the duty to act lawfully are to review and to monitor. The responsibility on the defenders is to ensure that an act is lawful when passed and remains so while in force.If a measure is unlawful there follows both the duty to repeal and the duty to keep under review. If a measure is lawful only the second duty arises, but this aspect of the case, he said, is in answer to the Defenders' argument that the Order was proportional at the date of enactment.
Relevancy and Specification
[14] Counsel for the defenders also advanced the subsidiary argument centred around the wording of the pursuer's third plea in law, submitting that the suggestion that there was an obligation on a legislative organ to keep examining statutory measures to ensure that they are in accordance with European law was "radical". She submitted that before an action based on such grounds could be sent to proof there would require to be clear averments as to how the duty arose and when it arose, which she claimed were missing in the present case. Implicit in the plea was the suggestion that the 1986 Order should have been reviewed and remedied but the pleadings give no indication of what should have triggered the review or change. [15] In respect of this aspect of the case, Counsel for the pursuer relied on R vSecretary of State for Employment Ex parte Seymour-Smith and Another [2000] 1 WLR 435 for the proposition that there was a duty to continue to monitor legislation once it was passed to ensure that it always remains compliant with community law. This aspect of the case was introduced to deal with the defenders averments that the 1986 Order was proportional when introduced.
[16] With reference to this latter case, counsel for Defenders accepted the possibility of supervening incompatibility But it would not be enough, she submitted, merely to point to the possibility of supervening incompatibility, or indeed to actual supervening incompatibility. A party relying on this would require to go on to identify a point at which he says the legislation had become disproportionate, to explain why it was disproportionate and to suggest the timescale within which action should reasonably have been taken. It would only be failure to respond to a trigger which might lead to responsibility in damages.
Discussion
Prescription
[17] In determining whether an action comes within the ambit of section 11(1) or 11(2) one must first identify what the act, neglect or default is. Then one must consider whether it is continuing. The pursuer is no doubt correct that in other contexts no difference falls to be drawn between an act and an omission. However, in my view for the purposes of the sections of the Prescription and Limitation (Scotland) Act 1973 presently under consideration one does require to address the question of what the act, neglect or default complained of is, which necessarily involves ascertaining whether it relates to an act or an omission. It is quite clear that the pursuer's case is predicated on an alleged illegality in the 1986 Order ab initio. That can be seen from the passages from the pleadings quoted above. The case is presented on the pleadings as one where the wrong complained of is the making of the order. The wrong to which the pleadings are directed is the one-off act of promulgating an allegedly ultra vires Order, not, as the pursuer now submits, the "maintenance, prosecution or enforcement" of the Order. The promulgation of the Order in 1986 was a completed act at that date and cannot properly be seen as a "continuing act". The fact that the 1986 Order had continuing consequences does not make the passing of the Order a "continuing act". I did not find that reference to the quite different provisions of the Race Relations Act 1976 and the two cases thereunder to which reference was made assisted me in interpreting the 1973 Act. Given the very different wording of the Race Relations Act I did not find the analogy which counsel for the pursuer sought to draw with section 11 to be a sound one. [18] The case R v Secretary of State for Employment Ex parte Equal Opportunities Commission and Another supra did not offer any assistance on the specific aspect of the case which I was called upon to determine. It does not deal with the question of whether the passing of incompatible legislation would mark the terminus a quo for prescription purposes or whether the maintenance in force of an act that was incompatible from the start would constitute a continuing act for those purposes. [19] Nor did I find it helpful to consider cases of non-implement of directives in this connection. Non-implement would not be an "act" for the purposes of the legislation under consideration, although it would constitute a neglect. Where such a neglect has been persisted in it is not difficult to categorise it as a continuing neglect. That is quite different from saying that the existence of a piece of legislation constitutes a continuing act. The non-implement case to which I was referred, the decision in Phonographic Performance Ltd v Department of Trade and Industry and another, supra, does not sit well with our understanding of the obligation to make reparation as a single and indivisible one. The question for the court is stated thus:"Whether the failure of the Crown ....[to implement the Directive by the due date].......gives rise to a single cause of action accruing on that date with continuing consequential damage or successive causes of action accruing when and as often as further damage in consequence of the continuing failure is sustained".
Relevancy and Specification
[21] The averments in Article 8 and the third plea in law for the pursuer relate to an alleged failure by the defenders to keep the 1986 Order "under proper review". In making averments that there was no good reason for the 1986 Order to be more restrictive than the 1996 Order the pursuer emphasised that the real thrust of his case is that the 1986 Order was ab initio illegal. Even in this part of his pleadings the pursuer's case is in reality founded on the argument that the 1986 Order should never have been passed in the first place. The argument is that it was disconform from the very first. It was not then in accordance with European law and never became so at any time thereafter. The submission of counsel for the pursuer was that the Order was from the very start contrary to European law because of its indiscriminate and disproportionate nature. I do not think that the case for a duty to review the Order sits easily with the pursuer's main allegation that the Order was never compatible with European law. In some respects it undermines the pursuer's argument in respect of section 11(2). If the Order was ultra vires when passed, the passing of it would constitutes a wrong at that time and no question of review or monitoring arises. Counsel for the pursuer explained that this aspect of the case was really in answer to the Defenders averments that the Order was proportional at the date of enactment, and this can be seen to some extent from the averments at page 18A-C relating to the original justification for the Order as advanced by the Defenders and the lack of explanation for the change. It is almost as if the pursuer has been seeking to present an esto case - esto the Order was originally in conformity with European law it became, at some unspecified time, disconform and should have been changed. However, that it not what the pursuer avers and such a case would require to be supported by detailed averments of the time at which the measure is said to have become disproportionate, the event or events which triggered it, the steps which the Defenders might have been expected to take and the period of time in which they might have been expected to act. The duty to review may arise when a measure at one time proportional becomes for some reason disproportionate, which is the situation described in R v Secretary of State for Employment Ex parte Seymour-Smith and Another, supra. I do not think that a separate duty to review relevantly arises on the pleadings in the present case.Decision
[22] In my view the promulgation of the Order in 1986 was a completed act at that date and cannot properly be seen as a "continuing act". The fact that the 1986 Order had continuing consequences does not make the passing of the order a "continuing act". The action has accordingly prescribed. [23] Whilst I accept that a duty to review legislation may arise from time to time I do not consider that such a duty relevantly arises in the circumstances of the present case. [24] In all the circumstances I will sustain the first and second pleas in law for the defenders and dismiss the action.