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Cite as: [2007] ScotCS CSOH_151, [2007] CSOH 151
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OUTER HOUSE, COURT OF SESSION [2007] CSOH 151 |
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P1525/04 |
OPINION OF LORD
KINCLAVEN in the petition of RAMZAN BIBI Petitioner; for Judicial Review of
a purported determination of the Scottish Ministers in terms of
Section 50(5) of the Planning ( Respondents: ннннннннннннннннн________________ |
Petitioner: Barne, Advocate; Drummond
Miller WS
Respondents: Mure, Advocate: The
Solicitor to the Scottish Executive
Introduction
[1] My
decision in relation to the merits of this petition is contained in my earlier
opinion dated
[6] Mr Barne appeared for the Petitioner and argued that the determination should be reduced.
[10] I was prepared to proceed on that basis.
[12] I am not satisfied that this in an appropriate case for reduction.
[13] My reasons are outlined below.
Background
[14] At the first hearing, Mr
Barne had presented three arguments on behalf of the Petitioner, namely:-
1. that there has been a
breach of Article 6(1) of the European Convention on Human Rights (the
"ECHR") because of unreasonable delay by the Scottish Ministers;
2. that the Scottish
Ministers failed to take into consideration relevant factors; and
3. that the Scottish Ministers acted
irrationally.
[18] In my earlier opinion, at paragraphs [211] - [212], I stated inter alia:-
"I propose to
sustain the first plea-in-law for the Petitioner by granting the declarator
sought in paragraph 3(d) of the Petition, namely, that in delaying until
[19] I also stated, at paragraph [237]:-
"I am not satisfied (questions of delay apart) that the Respondents erred in their approach such as to justify reduction of their determination. ...
[21] I turn now to the Petitioner's motion for reduction.
Authorities and references
[22] At the By Order hearing
counsel referred me to the following authorities and references:-
1. Grahame v Magistrates of Kirkaldy (1882) 9R (HL) 91 (particularly Lord Watson at pages 91-93, the Lord Chancellor at pages 96-97, Lord O'Hagan at page 98, Lord Blackburn at page 99 and the order of the House of Lords which is set out on page 100).
2. King v East Ayrshire Council 1998 SC 182 (particularly at page 183F-G and the Lord President (Roger) at pages 194C to 196G).
3. Tehrani v Home Secretary 2006 SLT 1123.
4. Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315 (Lord Reed particularly at paragraph 47, page 326H- 327D).
5. Attorney-General's Reference (No. 2 of 2001) [2004] 2 AC 72 (particularly Lord Bingham of Cornhill at paragraphs 9, 23-24, and 30 and Lord Roger of Earlsferry at paragraph 172 - pages 84C-F, 88H to 90B, 91H to 92D and 130G-131E).
6. R v H M Advocate 2003 SC (PC) 21 (particularly at page 22H-23B, Lord Hope of Craighead at paragraphs 53, 59, 66, 69 and 70, Lord Clyde at paragraphs 86 and 97, and Lord Roger of Earlsferry at paragraphs 126 to 128 and 151 - pages 40C-E, 42B-C, 43H-44B, 44G-45D, 49G-50B, 53B-D, 63C-64B and 72A-C).
7. William Grant & Sons Ltd v Glen Catrine Bonded Warehouse Ltd 2001 SC 901 (particularly the Lord President (Roger) at paragraphs 58 and 61 - page 929A-B and 929H-930D).
8. Malloch v Aberdeen Corporation 1971 SC (HL) 85.
9. London & Clydeside Estates Ltd v Aberdeen District Council 1980 SC (HL) 1 (particularly at pages 2-3, the Lord Chancellor at pages 30-31, Lord Fraser of Tullybelton at page 36, and Lord Keith of Kinkel at pages 43-44).
10. Hoffman v South African Airways 2001 (1) SA 1 (particularly Ngcobo J. at paragraphs 42 to 46).
11.
12. The Human Rights Bill, White Paper, Chapter 2.
13.
14. Human Rights Act 1998 (c. 42), section 6.
15. Planning (
16. Blair, Scots Administrative Law: Cases and Materials, 1999, pages 159 and 574 to 580.
17. Stair Memorial Encyclopaedia, The Laws of Scotland, pages 158, 160-162, and 169-171.
18.
19. Andrew Somerville and Others (Petitioners) v The Scottish Ministers [2006] CSIH 52 (particularly at paragraphs 22, 33-34, 40, 57, 71-72, and 80).
[23] Reference was also made to Lafarge Redland Aggregates Ltd v Scottish Ministers 2001 SC 298.
Article 6(1) ECHR
[25] Article 6(1) of the
Convention for the Protection of Human Rights and Fundamental Freedoms (the
"Convention") provides that:-
"In the
determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by
law."
The Human Rights Act 1998
[26] Section 6(1) of the
Human Rights Act 1998 provides:-
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
[27] Section 8 of the Human Rights Act 1998 relates to "Judicial remedies"
and is to the following effect:-
"8(1) In relation to any act (or proposed act) of
a public authority which the court finds is (or would be) unlawful, it may
grant such relief or remedy, or make such order, within its powers as it
considers just and appropriate.
(2) But damages may be awarded only by a
court which has power to award damages, or to order the payment of
compensation, in civil proceedings.
(3) No award of damages is to be made
unless, taking account of all the circumstances of the case, including - (a)
any other relief or remedy granted, or order made, in relation to the act in
question (by that or any other court), and (b) the consequences of any decision
(of that or any other court) in respect of that act, the court is satisfied
that the award is necessary to afford just satisfaction to the person in whose
favour it is made.
(4) In determining - (a) whether to award
damages, or (b) the amount of an award, the court must take into account the
principles applied by the European Court of Human Rights in relation to the
award of compensation under article 41 of the Convention.
(5) A public authority against which damages
are awarded is to be treated-(a) in Scotland, for the purposes of section 3 of the Law Reform (Miscellaneous Provisions)
(Scotland) Act 1940 as if the award were made in an action of damages in which
the authority has been found liable in respect of loss or damage to the person
to whom the award is made; (b) for the purposes of the Civil Liability
(Contribution) Act 1978 as liable in respect of damage suffered
by the person to whom the award is made.
(6) In this section-'court' includes a
tribunal; 'damages' means damages for an unlawful act of a public authority;
and 'unlawful' means unlawful under section 6(1)."
The
[28] Section 57(2) of the Scotland Act 1998 provides that:-
"A member
of the Scottish Executive has no power to make any subordinate legislation, or
to do any other act, so far as the legislation or act is incompatible with any
of the Convention rights or with Community law."
[29] Section 103(1) of the Scotland Act 1998 also provides
that:-
"Any decision
of the Judicial Committee in proceedings under this Act shall be stated in open
court and shall be binding in all legal proceedings (other than proceedings
before the Committee)."
The Rules of the Court of Session
[30] Rule of Court 58.4 was
also referred to in the course of argument.
[31] It relates to "Powers of court in judicial review" and is to the following effect:-
"58.4 The court, in exercising its supervisory
jurisdiction on a petition for judicial review, may-
(a) grant or refuse any part of the
petition, with or without conditions;
(b) make such order in relation to the
decision in question as it thinks fit, whether or not such order was sought in
the petition, being an order that could be made if sought in any action or
petition, including an order for reduction, declarator, suspension, interdict,
implement, restitution, payment (whether of damages or otherwise) and any
interim order;
(c) subject to the provisions of this
chapter, make such order in relation to procedure as it thinks fit."
The submissions for the Petitioner
[32] At the most recent By
Order hearing, Mr Barne advanced essentially three propositions, namely:-
"1. that in the circumstances of the present case the appropriate remedy is one of reduction in addition to declarator;
2. that this type of case is not the sort of case where there is a discretion of the court as to remedy; and
3. that if there is such a discretion, then that discretion should not be exercised in favour of withholding decree of reduction."
[33] Those submissions were developed along the following lines.
[34] Mr Barne relied heavily on the case of R v HM Advocate 2003 SC (PC) 21 which he contrasted and compared with Attorney General's Reference (No. 2 of 2001) [2004] 2 AC 72, [2003] UKHL 68.
[43] In relation to his first two propositions, Mr Barnes
highlighted various features of R v H M Advocate 2003 SC (PC) 21 (case
number "6" on the list of authorities outlined above). The underlying principle, submitted Mr Barne,
was that a member of the Scottish Executive has no power to act incompatibly
with any Convention right. The act being
ultra vires is necessarily void and
of no effect. If the court refused
reduction in the present case, then the court would be allowing a nullity to
continue to have some form of legal existence.
That might be an option in
"It may be that
the days of R v H M Advocate are numbered but for the time being, in terms of
section 103(1) of the Scotland Act, this court is bound by that decision."
[47] Mr Barnes highlighted features of Grahame v Magistrates of Kirkaldy (1882) 9R (HL) 91 (case number "1" on the list of authorities). He submitted that there must be "some very cogent reason" for depriving litigants of the ordinary means of enforcing their legal rights. It is a power that has been "very rarely exercised". The Petitioner in the present case is not pursuing an actio popularis (as in Grahame - page 93). The only person affected by reduction is Glasgow City Council and the Council undertook the works in the knowledge that they might not be able to recover what they spent. No reliance has been placed on the determination. It does not fall within the circumstances envisaged in the Grahame case.
[51] Glasgow City Council would also be entitled to seek "just satisfaction".
[52] The correct approach involves granting decree of reduction.
[54] In the normal course of things reduction would be the appropriate remedy,
[55] The common law discretion was only exercisable where there were compelling or cogent reasons.
[56] Section 57(2) of the Scotland Act applied to prospective and to retrospective breaches.
[57] The
[61] Attorney General's Reference (No. 2 of 2001) is an English case.
[62] The law has developed differently in
[63] Lafarge Redland Aggregates Ltd v Scottish Ministers pre-dates R v H M Advocate.
[65] Accordingly, submitted Mr Barne, the court should grant decree of reduction.
The submissions for the Scottish Ministers
[66] On behalf of the
Scottish Ministers, Mr Mure opposed the motion for reduction.
[68] The submissions for the Scottish Ministers fell into three chapters.
[69] In the first chapter, Mr Mure dealt with the background - which I have already summarised above.
[72] I can outline chapters two and three as follows.
[75] The timing of the determination is the only aspect that has been found to be challengeable.
[77] There was nothing wrong with the merits of the determination.
[78] On the face of it, the Council should be paid for the necessary work which they undertook.
[80] Scottish Ministers cannot now make a timeous determination. That much was not disputed.
[83] Despite section 57 of the Scotland Act 1998 and R v H M Advocate there is a range of remedies.
[85] Reference was made to Rule of Court 58.4 and to section 8 of the Human Rights Act 1998.
[87] The White Paper is also referred to by Lord Roger of Earlsferry in Attorney-General's Reference (No. 2 of 2001) [2004] 2 AC 72 at paragraph 172 (page 130G et seq).
[89] The facts are highly relevant to the choice of remedy.
[90] There is a wide discretion and a range of possible outcomes.
[91] One possible remedy is plainly damages.
[92] Mr Mure referred me to case of
[93] In certain circumstances damages might be available.
[94] In others, a bare declarator may be sufficient.
[96] In the present case the outcome of the determination would not have been any different.
[97] There cannot be a re-determination. A "re-trial" is not possible in the present case.
[98] The delay in the present case has not cost the Petitioner г53,000 or thereby.
[101] Why should the Petitioner in the present case not look for "just satisfaction" - asked Mr Mure?
[102] Mr Mure also founded upon Andrew
Somerville and Others (Petitioners) v
The Scottish Ministers [2006] CSIH 52 (case number "19" on the list of
authorities). I was referred, in
particular, to paragraphs [22], [33]-[34], [40], [57], [71]-[72], and [80] of
the Opinion of the Court - which was delivered by the Lord President on
[107] Reduction is a common law remedy involving a discretionary power.
[108] In any event, this court has a broad discretion as to remedy in judicial review.
[109] In support of his submission, Mr Mure referred me to various cases - as follows.
[110] In relation to Grahame v Magistrates of Kirkaldy (1882) 9R (HL) 91 (case number "1" on the list of authorities set out above) I was referred in particular to pages 91-93, 96-97, 98, and 99 and to the order of the House of Lords on page 100. In Grahame, the magistrates had no power to erect the stables but the court chose not to order their removal. It was decided (having regard to the offer made by the magistrates to provide substitute ground) that it was not expedient or for the interest of the community of the burgh that decree should be granted for the removal of the stables. In the present case, there were very cogent reasons for not granting decree of reduction. The sum of г53,000 or thereby would be lost to the public purse and there would be a windfall benefit to the Petitioner - even although the decision itself has not been found to have been erroneous. There was delay but the decision itself was correct. Reduction of the decision would deprive both parties of the appeal mechanism laid down by Parliament. Reduction would also place the rights and obligations of the parties in something of a limbo situation. The Council would be left with an invoice for work done. The Petitioner would have decree for reduction but would have no opportunity for re-determination. There would be a degree of uncertainty for all parties as to what the true position was. In short, the case of Grahame supports the view that the court does have a discretion.
[113] William Grant & Sons Ltd v Glen Catrine Bonded Warehouse Ltd 2001 SC 901 (case number "7" on the list ) particularly at paragraphs 58 and 61 (page 929A-B and 929H-930D) suggests that the court has a discretion.
[114] Lord Reed's comments in Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315 (case number "4" on the list at paragraph 47, page 326H- 327D) support of the view that legal pigeon-holes are not particularly helpful and that the court does have a discretion in the field of remedies in judicial review.
[116] Similar considerations are reflected in Attorney-General's Reference (No. 2 of 2001) [2004] 2 AC 72 (case number "5" on the list). I was referred to paragraphs 9, 23-24, and 30 and paragraph 172 (pages 84C-F, 88H to 90B, 91H to 92D and 130G-131E). Lord Bingham of Cornhill, in paragraph 24, encapsulated the conclusions of the majority.
[117] Having regard to the opinion of the Court in the case of Somerville Petitioner [2006] CSIH 52, I was not bound by the decision in R v H M Advocate.
Summary of Scottish Minister's
position
[118] In summary, and for the reasons outlined above, the Scottish Ministers invited the court to hold:-
1. that the court does have discretion as to what remedy is just and appropriate in the present case;
2. that in the present case there is no good reason for giving the Petitioner what is in essence a windfall of some г53,000;
3. that where the court has held that the merits of the determination are good and unchallengeable, the court should see reduction as the last resort (rather than the first) and that this conclusion is reinforced by the consideration that reduction would deprive both parties of a statutory mechanism to which both parties have a right;
4. that if the determination were to be reduced, then prima facie the Council would be unable to recover the monies concerned and, at best, there would be legal uncertainty for all parties leading to further delay and expense; and
5. that the court has a range of remedies available - including damages by way of "just satisfaction".
[119] In the result, submitted the Scottish Ministers, the motion for reduction should be refused.
[120] In that event, the appropriate course would be to put the case out By Order.
[122] Questions of expenses should be reserved meantime.
Discussion
[123] I can take as my starting
point the fact that this is a petition for judicial review.
[126] In general terms, relation to judicial review, I agree with counsel for the Scottish Ministers:-
- That the facts are relevant to the choice of remedy,
- That there is a wide discretion and a range of possible outcomes open to the court; and
- That one possible remedy is plainly damages.
[131] However, it might be helpful to highlight the following features from those cases.
Attorney-General's
Reference (No. 2 of 2001) (Case 5 on the
list of authorities)
[132] Attorney-General's Reference (No. 2 of 2001) [2004] 2 AC 72 supports the Scottish Ministers.
[133] In that case Lord Roger of Earlsferry stated at paragraph 172 (page 130G et seq) inter alia:-
"172 In the White Paper, Rights Brought Home: The Human Rights Bill (1997) (Cm 3782), the Government set out proposals for the legislation which eventually passed into law as the Human Rights Act 1998. The relevant aspects of the Act do not differ significantly from those of the original Bill that followed the White Paper. In para 1.18 the Government expressed the view that the time had come "to enable people to enforce their Convention rights against the state in the British courts". In other words people were going to be given remedies in our domestic courts for the breach of their Convention rights. The Government went on to say, in para 2.6:
"A public authority which is found to have acted unlawfully by failing to comply with the Convention will not be exposed to criminal penalties. But the court or tribunal will be able to grant the injured person any remedy which is within its normal powers to grant and which it considers appropriate and just in the circumstances. What remedy is appropriate will of course depend both on the facts of the case and on a proper balance between the rights of the individual and the public interest. In some cases, the right course may be for the decision of the public authority in the particular case to be quashed. In other cases, the only appropriate remedy may be an award of damages."
This passage contains a number of signposts. First, it confirms that, when commending the Bill to Parliament, the Government's intention was that, if a public authority acted unlawfully in terms of section 6(1), the court or tribunal should be able to grant the injured person any remedy which was within its normal powers and which it considered appropriate and just in the circumstances. Secondly, what was appropriate by way of remedy was to depend on the facts of the case and on a proper balance between the rights of the individual and the public interest. Therefore, finally, even though an act of a public authority that was incompatible with the Convention would always be unlawful, this did not mean that it would always have to be quashed. In some cases the appropriate remedy would be an award of damages and nothing more. In short, the Bill was to mirror the Convention and, as a general rule, it would not prescribe any specific remedy for a violation. Like the Convention, the Bill would leave it to the courts to choose the appropriate remedy in the circumstances. Moreover, nothing suggests that, exceptionally, the Government envisaged that the courts would always have to grant a stay or equivalent administrative law remedy to prevent a future act in violation of the Convention, even though the courts would not have had to quash the self-same act if it had once occurred."
[134] The case of
"Just
satisfaction and damages ...
6. The
Convention has always ... made provision for affording just satisfaction to the
injured party. Article 41 of the Convention,
repeating the substance of article 50 of the original version, now provides:
"Just satisfaction: If the court finds that
there has been a violation of the Convention or the protocols thereto, and if
the internal law of the high contracting party concerned allows only partial
reparation to be made, the court shall, if necessary, afford just satisfaction
to the injured party."
Article 41 is not one of the articles scheduled
to the 1998 Act, but it is reflected in section 8 of the Act, which is to this
effect ... (I have set out above the provisions
of section 8 which were quoted by Lord Bingham) ...
It is evident that under article 41 there are
three preconditions to an award of just satisfaction: (1) that the court should
have found a violation; (2) that the domestic law of the member state should
allow only partial reparation to be made; and (3) that it should be necessary
to afford just satisfaction to the injured party. There are also preconditions to an award of
damages by a domestic court under section 8: (1) that a finding of unlawfulness
or prospective unlawfulness should be made based on breach or prospective
breach by a public authority of a Convention right; (2) that the court should
have power to award damages, or order the payment of compensation, in civil
proceedings; (3) that the court should be satisfied, taking account of all the
circumstances of the particular case, that an award of damages is necessary to
afford just satisfaction to the person in whose favour it is made; and (4) that
the court should consider an award of damages to be just and appropriate. It would seem to be clear that a domestic
court may not award damages unless satisfied that it is necessary to do so, but
if satisfied that it is necessary to do so it is hard to see how the court
could consider it other than just and appropriate to do so. In deciding whether to award damages, and if
so how much, the court is not strictly bound by the
principles applied by the European court in awarding compensation under article
41 of the Convention, but it must take those principles into account. It is, therefore, to
Damages for
breach of article 6
7. It
is desirable for present purposes to concentrate on the
8. In
the great majority of cases in which the European court has found a violation
of article 6 it has treated the finding of the violation as, in itself, just
satisfaction under article 41. Very many
examples could be cited ...
Where article 6 is found to have been breached,
the outcome will often be that a decision is quashed and a retrial ordered,
which will vindicate the victim's Convention right.
10. The
court has acknowledged the principle of restitutio
in integrum (see Piersack v
"The court recalls that it is well
established that the principle underlying the provision of just satisfaction
for a breach of article 6 is that the applicant should as
far as possible be put in the position he would have enjoyed had the
proceedings complied with the Convention's requirements. The court will award monetary compensation
under article 41 only where it is satisfied that the loss or damage complained
of was actually caused by the violation it has found, since the state cannot be
required to pay damages in respect of losses for which it is not
responsible."
11. As appears from the passage just cited, the court has ordinarily been willing to depart from its practice of finding a violation of article 6 to be, in itself, just satisfaction under article 41 only where the court finds a causal connection between the violation found and the loss for which an applicant claims to be compensated. Such claim may be for specific heads of loss, such as loss of earnings or profits, said to be attributable to the violation. The court has described this as pecuniary loss, which appears to represent what English lawyers call special damage. This head does not call for consideration here. It is enough to say that the court has looked for a causal connection, and has on the whole been slow to award such compensation."
R v H M Advocate (Case 6)
[136] I agree with counsel for the Scottish Ministers that the ratio of R v H M Advocate 2003 SC (PC) 21 does not apply in the circumstances of this particular case so as to exclude the court having a range of remedies.
[137] R v H M Advocate can be distinguished on its facts.
[140] In R v H M Advocate Lord Hope of Craighead stated inter alia:-
"53. I
turn now to the main issues in this case. These are whether prosecution of the appellant
on charges 1 and 3 would be incompatible with his right to a hearing within a reasonable time under article
6(1) and, if so, whether he is entitled to have these charges dismissed on the
ground that the Lord Advocate has been deprived of the power to prosecute him
on those charges by section 57(2) of the Scotland Act 1998. I wish to concentrate first on the second
issue, which raises the question of remedy. I do so in order to demonstrate that the
effect of section 57(2) is that, once it has been established that a proposed or continuing act is
incompatible with a person's article 6(1) Convention right, the Lord Advocate
is prohibited from doing that act by the statute. The only course which the court can take is to
order him not to do it and bring the proceedings to an end. ...
59. ... Past breaches of article 6 can be dealt with
by applying the principle which, as the European court has held, underlies the
provision of just satisfaction for the breach of that article. This is that the victim should as far as
possible be put in the position which he would have enjoyed had the proceedings
complied with the Convention's requirements: Kingsley
v
[141] Lord Hope went on to state:-
"69. In
Dyer v Watson
[2004] 1 AC 379 Lord
Millett observed that little attention had so far been given to the content of
the rights which are set out in article 6(1) of the Convention. ... I
agree with what he said in the last two sentences of para 131 about the effect
of section 57(2) of the Scotland Act 1998:
"Section 57(2) of the Scotland Act 1998 imposes a vires control by providing that the
Lord Advocate has no power to act in a way which is incompatible with an
accused's Convention rights. If the Lord
Advocate threatens to exceed his powers, there is no discretion to withhold a
remedy." ...
70. Nor, in my opinion, in cases of threatened or continuing acts by the Lord Advocate which are incompatible with any of the Convention rights is there any discretion as to the appropriate remedy. Section 57(2) says that the Lord Advocate has no power to do any such act. If he proposes to act, or to continue to act, in a way that is incompatible with any of the accused's Convention rights, the accused is entitled to apply to the court for an order that he be stopped from doing so. ..."
[142] Lord Clyde, in R v H M Advocate, also stated
inter alia:-
"97. Before leaving the matter of the Convention right I should say something about the consequences of a violation of the right, stressing at the outset that the right and the consequences of violating the right are distinct and separate matters. Plainly the stage at which the matter of the consequences of a violation is raised calls for differences in approach. Viewed, as the European Court of Justice must view the case, at the latest stage there may well be remedies other than setting aside a conviction. It is sufficient to refer to the decision of the Board in Mills v HM Advocate [2004] 1 AC 441 where the delay occurred after conviction in the course of the appeal process. In these circumstances it was recognised that the discontinuance of a prosecution was only one possible remedy, and indeed not the normal one. The alternatives noted in the jurisprudence of the European Court of Human Rights include such things as a reduction in sentence, monetary compensation, or even a finding that a violation had occurred. ..."
[148] In my opinion, the Petitioner's approach is too rigid and inflexible.
Hoffman
v South African Airways (Case10)
[149] I am attracted to the
flexible approach outlined by Ngcobo J
in Hoffman v South African Airways 2001 (1) SA 1 (particularly at paragraphs 42
to 46) but the background to that case is different from the one before me.
[150] It does not follow, however, that the Scottish Minister's submissions fall to be rejected.
[152] The very detailed Opinion of the Court was delivered by the Lord
President on
[153] The case is reported at [2006] CSIH 52 - which I can refer to brevitatis causa.
[156] That is not the situation in the case before me.
[157] In the result, I agree with Mr Mure's conclusion in the present case.
London
& Clydeside Estates Ltd v Aberdeen District Council (Case 9)
[158] In relation to London & Clydeside Estates Ltd v Aberdeen District Council 1980 SC (HL) 1 I gratefully adopt the helpful comments provided by Lord Reed in Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315 (case number "4" on the list).
"that even where an administrative body has erred in such a way as would invalidate its decision the court is not bound to quash that decision, since 'the jurisdiction to grant decree of reduction of administrative decisions is "inherently discretionary"' (King v East Ayrshire Council at 1998 SC 194, 1998 SLT 1294)"
[160] A similar conclusion can be reached in the present case - in relation to legal remedies.
[161] In my opinion, discretion does have a part to play in this case.
[162] I was not persuaded that the Petitioner's arguments were well founded.
[165] On the contrary, I agree with the arguments advanced by the Scottish Ministers.
[166] R. v HM Advocate can be distinguished - for the reasons outlined above.
[171] Each case falls to be determined on its own particular facts and circumstances.
[172] The salient features of the present case are as follows:-
- The breach consists of the unreasonable delay in obtaining a determination from Scottish Ministers.
- The Petitioner has suffered a completed breach of her Convention rights - rather than a threatened infringement.
- Questions of delay apart, the determination itself was correct in fact and law. The Petitioner's challenges to the merits of the decision have failed.
- I was not satisfied that the delay cause prejudice in relation to the presentation of the Petitioner's claim - and there were no averments to that effect.
- On the basis of the information before me, I am not satisfied that reduction is an appropriate remedy - in the sense of a remedy which is fair and just and proportionate.
- On the contrary, in my view, reduction (if granted) would have the following undesirable consequences:-
- There would be no means of obtaining a re-determination; and
- The Petitioner would receive a windfall gain of г53,000 or thereby - from Glasgow City Council.
- Those are sufficiently compelling and cogent reasons for withholding the remedy of reduction.
- The breach of Article 6 clearly entitles the Petitioner to a remedy by way of decree of declarator - which I propose to grant.
- For aught yet seen, the breach of Article 6 may also give rise to "just satisfaction" damages - but it would be premature to express any view on such issues. Those are matters for a further hearing - as agreed between the parties.
[174] Accordingly, I shall refuse the Petitioner's motion for reduction.
Decision
[177] I shall refuse the Petitioner's motion for decree of reduction - for the reasons outlined above.
[179] I shall reserve meantime further questions of "just satisfaction" and damages.
[180] I shall also reserve the question of expenses.