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Cite as: [2007] ScotCS CSOH_103, [2007] CSOH 103

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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 103

A682/06

OPINION OF LORD MALCOLM

in the cause

MARTIN DEVLIN

Pursuer;

against

THE CHIEF CONSTABLE OF STRATHCLYDE POLICE

Defender:

________________

Pursuer: Skinner; Balfour & Manson, (for Hughes Dowdall, Glasgow)

Defender: Dawson; Simpson & Marwick, W.S.

24 April 2007

[1] In October 2003 the pursuer was injured in the course of his duties as an officer of Strathclyde Police. The force was concerned about repeated violent robberies involving the use of knives in the vicinity of Ibrox Underground Station in Glasgow. On the evening in question the pursuer was part of a six officer team involved in "Operation Overnight 2" - a plan specifically devised to apprehend those carrying out the attacks. The pursuer attended in an unmarked police car parked close to the station. He was called to assist at the scene of a robbery during which the victim was stabbed. The pursuer gave chase in an attempt to apprehend the assailant. In the course of this he was stabbed on the shoulder and hand. The pursuer avers that as a result of his injuries, and their effect upon him, he was retired from the police force on medical grounds. He has raised this action seeking substantial damages from the Chief Constable on the basis that Operation Overnight 2 was poorly planned and under-resourced in terms of equipment and numbers of properly trained personnel. It is claimed that no proper risk assessment had been carried out in respect of an obviously hazardous project. The Chief Constable avers that a proper risk assessment had been carried out and that the pursuer's own failure to follow proper procedures contributed to his injuries.

[2 ] The case came before me on the By Order (Adjustment) Roll in terms of Rule of Court 22.3(5)(b). By way of further procedure counsel for the pursuer indicated that he sought a proof before answer. Mr Dawson for the Chief Constable informed me that this was not his case. However, his information was that the counsel instructed in the matter wished to argue his preliminary plea to the relevancy at procedure roll. I was given little information as to the nature of the argument intended to be presented at procedure roll. In retrospect perhaps this was because those instructing counsel did not consider it necessary to go beyond indicating that the defender wished a hearing on the procedure roll. In the event I allowed a proof before answer. A reclaiming motion has been marked on the basis that I had no discretion to refuse a hearing on the procedure roll and that the invariable practice in such circumstances is to allow a debate. At the time it was my impression that both counsel were proceeding on the basis that I did have a discretion, and I decided the matter on that basis. In any event it was not submitted that I had no alternative but to send the case to the procedure roll. In general terms it seemed to me that on the face of the pleadings, and in the absence of the submission of any good reason to think otherwise, it was unlikely that a discussion on the procedure roll would avoid the need for inquiry into the facts of the matter. I note that the grounds of appeal do not specify why this conclusion was mistaken.

[3 ] As mentioned above, the grounds of appeal in support of the reclaiming motion proceed on the basis that I had no discretion to refuse a procedure roll debate. This was not the context of the discussion before me, nor did it come to my mind in the course of the short hearing that I might be bound to grant the defender's application. Thus, in allowing a proof before answer, I did not consciously decide to reject the submission now presented to the Inner House. This action began as an action for damages for personal injuries under chapter 43 of the Rules of Court. Last year, on the unopposed motion of the defender, it was remitted to the ordinary roll. It is at least possible that at the recent hearing nobody appreciated the potential implications of this for future procedure. In any event, having now been alerted to the issue, the following general comments might be of some assistance to the court hearing the reclaiming motion. They are made in case the Court wishes to reflect on whether there might be benefits in reviewing current practice.

[4 ] It may be helpful to consider how the relevant rules have developed over the years and how practitioners have described them from time to time. The Act of Sederunt of 10 March 1870 is a reasonable starting point. In section 1(3) it provided that:

"If the parties are at variance as to whether there shall be proof or as to what proof ought to be allowed, or if they or any of them shall maintain that one or more of the pleas stated on record should be disposed of before determining on the matter of proof, the Lord Ordinary shall appoint the cause to be enrolled in a roll to be called the procedure roll".

The Act of Sederunt (Rules of Court Amendment No.1) 1965 made provision in Rule 91 for parties to seek to agree on future procedure, failing which the cause would be appointed to a By Order (Adjustment) Roll hearing where:

"if the parties are at variance as to whether there shall be a jury trial or proof, or as to what proof ought to be allowed, or if any of them shall maintain that one or more of the pleas stated on record should be disposed of before determining the matter of proof, the court should appoint the cause to the procedure roll and after hearing parties on the said roll, the court shall pronounce such interlocutor as shall seem just, and may either approve of issues or appoint proof to be taken or dispose of such pleas on record as the court thinks ought to be disposed of at that stage".

[5 ] In his work on Court of Session Practice published in 1980 Mr David Maxwell discussed the By Order (Adjustment) Roll at page 160:

"At the appearance of the cause in the By Order (Adjustment) Roll, counsel for the parties are expected to state to the Court whether they have agreed as to future procedure and with what result. If no agreement has been reached, counsel for each of the parties is expected to state to the Court the considered attitude to be adopted by the party for whom he appears with regard to future procedure, and his contentions thereanent. The interlocutor pronounced by the Court specifies what the Lord Ordinary has decided as regards these contentions or any of them".

At page 161 the procedure roll is described as follows:

"The procedure roll is the roll in which the mode of inquiry into the facts is, in the absence of agreement by the parties, determined by the Court, which may either appoint proof to be taken or approve of issues. The Court may also in this roll, dispose of such pleas on record as it thinks ought to be disposed of at this stage, e.g. a plea to the competency or relevancy; order a preliminary proof, e.g. on the question of jurisdiction; or, on the averments of parties and the terms of documents which are not disputed, grant decree".

Mr Maxwell makes reference to a Practice Note of 1 June 1967 which stated:

"If no agreement has been reached (as to future procedure) counsel for each of the parties will be expected to state to the Court the considered attitude to be adopted by the party for whom he appears with regard to the future procedure in the cause, and in particular without prejudice to the right of any party to make at this stage any appropriate motion with regard to that future procedure whether that party is to contend -

(1) that any preliminary plea should be sustained or repelled without inquiry into the facts, or

(2) that certain of the averments should not be remitted to probation, in which event a specific plea directed to this matter shall be stated on Record, or

(3) that any preliminary plea should be reserved until after inquiry into the facts, or

(4) that any inquiry should be by way of proof rather than trial upon an issue, or

(5) that any proof allowed should be in any way restricted and if so to what extent.

The interlocutor pronounced by the Court in the By Order Roll shall specify what the Lord Ordinary has decided as regards these contentions or any of them", (emphasis added).

[6 ] The current relevant Rule of Court is Rule 22.3(5). It was introduced in 1982 and provides:

"The pursuer shall, on lodging copies of the Closed Record as required by paragraph (1)(b), enrol a motion craving the Court -

(a) where parties have agreed on further procedure, of consent,

(i) to appoint the cause to the Procedure Roll for consideration of all their preliminary pleas of parties or such of the pleas as may be specified;

(ii) to allow to parties a preliminary proof on specified matters or in respect of specified pleas;

(iii) to allow to parties a proof before answer of their respective averments under reservation of such preliminary pleas as may be specified;

(iv) to allow a proof;

(v) to allow issues for a jury trial; or

(vi) to make some other specified order; or

(b) where parties have been unable to agree on further procedure, to appoint the cause to the By Order (Adjustment) Roll".

The basic structure of the Rule is that either parties reach agreement on further procedure or the case is appointed to the By Order (Adjustment) Roll. Other than Rule 22.3(6) making provision for one of a number of causes to be appointed the leading cause, the Rules of Court make no provision as to what is expected to happen when the cause is heard on the By Order (Adjustment) Roll. The annotations to the Rule in the Parliament House Book state:

"The procedure roll is where preliminary pleas (e.g. objections to the instance, objections to jurisdiction, and pleas against the action itself such as competency, relevancy and specification of pleadings) are debated and disposed of, including whether inquiry is to be by proof or jury trial or whether there should be a preliminary proof if these matters are not agreed by the parties".

The author of the annotations proceeds:

"A cause will be appointed to the procedure roll where parties are agreed to send it there or, where parties are not so agreed, may be sent there when the case is heard (because of the lack of agreement) at the By Order (Adjustment) Roll ...." (emphasis added).

Rule of Court 28.1 deals specifically with hearings on the procedure roll, and in paragraph (3) states:

"The Court, after hearing parties on the procedure roll, may dispose of all or any of the preliminary pleas and may -

.....(b) allow parties a proof before answer of their respective averments under reservation of such preliminary pleas as may be specified".

The other options are a preliminary proof, a proof, issues, or such other order as the Court thinks fit.

[7 ] In Court of Session Practice, edited by Lord Macfadyen, at paragraph D/101 the author states:

"Where parties are unable to agree whether there ought to be inquiry, or what form the inquiry should take, or if one or more of the parties has a preliminary plea to be disposed of before inquiry can be determined, the cause will be sent to the procedure roll".

In a footnote one reads:

"This characterisation reflects a now repealed Act of Sederunt: section 1(3) of the AS 10 March 1870 and CJA MacLaren, Court of Session Practice (1916) pp.357-361. It has not been re-enacted in the current Rules of Court, though the purpose of the procedure roll remains as stated. MacLaren also has a discussion of the historical origin of this part of the procedure and the distinction between it and the obsolete debate roll".

At paragraph D/152 the author states:

"Where a case does call on the By Order (Adjustment) Roll the hearing is generally brief and formal, as the Court will send the case to the procedure roll in the event that parties are unable to agree on further procedure".

A footnote to this passage states:

"There appears to be no authority for this, which is, nevertheless, the invariable practice. The better view would appear to be that if parties are not agreed about the future course of the action, there must, ex hypothesi, at least be questions of relevancy and specification which fall to be determined. In ordinary procedure, if a party has stated a preliminary plea and wishes to maintain it, and is unwilling to have it reserved to proof before answer, the Court has no discretion to refuse to appoint the case to the procedure roll".

[8 ] The discussion mentioned above refers to the Act of Sederunt of 1870 and a consideration of it in MacLaren at pages 357 and following. However I note that at page 390 MacLaren states:

"When there is a plea of irrelevancy of want of specification, the cause is usually sent to the procedure roll, where such plea will either be disposed of or reserved". (emphasis added)

At page 357 of MacLaren reference is made to the debate roll, which was said to be in desuetude. It would appear from Shand's Practice of the Court of Session vol.1 at page 338, a work of 1848, that the previous normal practice was to send a case to the debate roll after closing of the record, but only when the facts were not in issue. Otherwise, as the author observes at page 348, it was "necessary that a proof be taken".

[9 ] The above no doubt incomplete historical resumé presents an unclear picture. However, there are references to a practice of the kind relied upon by the reclaimer. The authority for that practice; the extent to which it is open to the Inner House in this reclaiming motion to review it; and the scope of any discretion available to the Lord Ordinary at the By Order (Adjustment) Roll, are issues which the Inner House may (or may not) wish to consider in the reclaiming motion. For example, is it necessary, or might it be desirable, that it be incumbent upon the party seeking a hearing on the procedure roll to satisfy the judge at the By Order (Adjustment) Roll hearing that there is a prima facie or stateable point to be argued on the procedure roll? On the face of it an invariable practice of the kind relied on by the reclaimer would often rob the mandatory By Order (Adjustment) Roll hearing of any practical purpose. As the current Rules of Court stand, the court has an express discretion whether or not to allow a debate in a wide variety of cases, notably commercial and personal injury actions and intellectual property causes. The Review of the Business of the Court of Session conducted by Lord Cullen in 1995 noted that "to a significant extent" actions are being appointed to the procedure roll for no good reason (para.3.13) and that the appointed hearing proceeds "in only a relatively small number of cases" (3.11), all causing unnecessary delay and the waste of administrative resources and judicial time. The review recommended that in every defended action the court should have a discretion as to whether to allow a procedure roll hearing. Whether to allow a debate would be considered at the By Order (Adjustment) Roll stage and the discretion exercised in favour of a procedure roll hearing only if this was likely to dispose of all or part of a case (6.19 and 6.37(i)). It may be important to note that this specific proposal was but a small part of a much broader system of judicial case management

[10 ] A subsequent report in 2000 by Lord Coulsfield on Court of Session Procedure revealed that the judges considered that Lord Cullen's proposals for judicial case management in all defended actions would be unnecessarily cumbersome and expensive. The focus was narrowed to personal injury actions, ultimately resulting in the current chapter 43 of the Rules of Court. In relation to such actions Lord Coulsfield recommended that a debate should be allowed only if a judge was satisfied that it was in the interests of justice (page 22). This is now provided for in Rule 43.3(6) and Practice Note No.2 of 2003. In passing it can be noticed that, without any discussion of the matter, the Coulsfield Report referred to "a current right to a procedure roll hearing" (page 3).

[11 ] The overall result is that the simple and straightforward idea of avoiding unnecessary delay and waste of resources by abolishing a general right to a procedure roll hearing was not adopted, not because of any fundamental disagreement with that idea, but because it was part of a much broader and relatively sophisticated system of judicial case management which proved unpopular with the judges. Bearing in mind the current regime for intellectual property causes and commercial actions, it might be questioned whether there is any good reason why in ordinary actions the parties should have an absolute right to a procedure roll debate. Further, on the face of it, it could be implied from the current Rule that the purpose of a By Order (Adjustment) Roll hearing when the parties are not agreed as to further procedure is to provide for at least an element of judicial oversight on the matter.

[12 ] There is some evidence that the source of the practice relied upon by the reclaimer may be a comment of Lord President Inglis in Simpson v Stewart (1875) 2R 673. In his Manual of Practice of the Court of Session, published in 1893, Mackay cites this case as authority for the proposition that "the proper stage for determining whether a proof should be before answer is the procedure roll". The case concerned an interlocutor which allowed both parties a proof at large, notwithstanding that the defence was of such a nature that it could only be proved by writ or oath. While rejecting an argument on appeal that the parole evidence before the Lord Ordinary had been sufficient to establish the defence, the Lord President observed that there should have been a plea to the issue of which parts of the case required a restricted mode of proof. He described this as a matter which "falls to be disposed of when the case is in the procedure roll" (page 675). However this seems a flimsy foundation for any unassailable practice of the kind relied upon by the present reclaimer, in that the Lord President was doing no more than indicate that, for fairly obvious reasons, the issue of mode of proof should be dealt with before the proof takes place.