Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 160

P886/09

OPINION OF LORD BONOMY in the Petition of IAN J COOPER Petitioner; for Judicial Review of decisions of Forth Ports plc dated 23 March 2009, 24 March 2009, 15 May 2009, 4 June 2009 and 10 June 2009; of a Notice under section 3(5)(a) of the Pilotage Act 1987; and of certain provisions of the Pilotage Code of Practice issued by Forth Ports plc and Answers for FORTH PORTS PLC Respondents: ­­­­­­­­­­­­­­­­­________________

Petitioner: C Mackenzie; Burness, LLP

Respondents: Currie, Q.C.; McGrigors LLP

27 November 2009

Background

[1] Following a career as a master of commercial ships, in October 2007 the petitioner took up duties as a pilot authorised by the respondents in terms of section 3 of the Pilotage Act 1987.

[2] On three occasions in March 2009 vessels under the pilotage of the pursuer were involved in incidents. On 4 March the petitioner was undertaking the pilotage of a barge BD6074, in the company of Motor Tug Napia, when the barge struck, damaged, and caused to be written off, a main channel buoy. On 14 March he was undertaking the pilotage of the Wec Van Eyck, a container ship, when the ship struck a fender, both were damaged and damage was also caused to a shore crane. Following these two incidents no disciplinary steps were taken against him.

[3] Then on 23 March a more serious incident occurred. The petitioner was piloting the Frisian Trader, a container ship loaded with containers stacked four to five high and presenting a high profile to the wind. The master of the Frisian Trader executed his own navigational manoeuvres despite being in an area of compulsory pilotage. He ordered a tug to assist in manoeuvring the Frisian Trader into a berth at Grangemouth Docks. The ship was to proceed through a lock into a part of the docks referred to as the Eastern Channel, then through a narrow gap known as the East Cut, into the Grange Dock. The ship made contact with the wall at the lock causing minor damage. The petitioner advised that a second tug be ordered, but the master of the Frisian Trader declined to accept that advice. Thereafter on leaving the lock the ship was pushed into some dolphins by the force of the wind. At that point, having formed the view that the wind had moderated, the master took the ship ahead across the Eastern Channel to the East Cut. There he decided that, because of the prevailing wind, the Frisian Trader should go astern into the Eastern Channel. For that manoeuvre he required the tug to disengage and move to forward. The petitioner advised against moving the tug, but the master declined to accept that advice. While the tug was disengaged, the wind forced the Frisian Trader into another vessel, the Fionia Swan. An investigation concluded that the power available from the bow thrusters of the Frisian Trader was equalled by the force of a 20 knot wind blowing broadside against the high profile container load, and that the bow thrusters proved inadequate in the circumstances. The Fionia Swan contained petroleum products. The collision was within a closed dock area close to a refinery. When the master of the Frisian Trader declined to act as advised the petitioner did not notify the Duty Harbour Master.

[4] Later that day the petitioner received an e-mail from the Chief Harbour Master stating that preliminary investigations into the incident involving the Frisian Trader had been completed and that, considering the serious nature of the incident and taking into account other recent incidents, the respondents had decided to suspend the petitioner from pilotage duties with immediate effect pending a full investigation and inquiry, and that the said investigation and inquiry would be in line with the procedure in the Pilotage Code of Practice. A letter the following day confirmed the terms of the email and further explained:

"Forth Ports consider it necessary to suspend you not only due to the serious nature of this incident, but also your involvement in the incident on 14 March 2009 with Wec Van Eych [sic] and the incident on 4 March involving the tug and barge".

That decision is one of two decisions which are at the heart of the petitioner's challenge to the actions of the respondents.

[5] Following this there were three stages to the disciplinary process. When the investigation was completed the petitioner was required to attend a preliminary inquiry. The preliminary inquiry took place on 1 April and was conducted by the Chief Harbour Master and Captain Kelley. Their detailed findings were passed to the convenor of the Disciplinary Committee, Rear Admiral Roger Lockwood, who decided to convene a disciplinary hearing and sent a copy of the report of the preliminary inquiry findings and conclusions to the petitioner. The hearing before the Disciplinary Committee took place on 20 April 2009. The Committee decided to recommend the disciplinary measure provided for in section 6.2.5(vi)(3) of the respondents' Pilotage Code of Practice, namely a caution to last for a period of one year. In addition, he should be ordered to undergo three assessment trips.

[6] The final say on discipline lay, however, with the respondents. The steps they took were the third stage of the disciplinary process. By letter dated 29 April 2009 the respondents gave notice of intention to revoke the authorisation of the petitioner, rather than limit the sanction to a caution. The decision to issue that notice is the other decision at the heart of the petitioner's challenge. That letter states:

"Pursuant to Section 3(5)(a) of the Pilotage Act 1987 Forth Ports PLC, as the competent harbour authority for the River Forth, hereby gives notice of its intention to revoke your authorisation as a pilot on the River Forth.

This decision has been reached following the recent investigation and hearing into your competence resulting from the following incidents in which you were the authorised pilot.

4 March 2009 Tug and barge running down a navigation buoy.

14 March 2009 Container vessel 'Wec Van Eych' contacting a container crane at Grangemouth.

23 March 2009 Collision between the 'Frisian Trader' and the 'Fionia Swan' at the Port of Grangemouth.

You have the right to make representations in respect of this decision under Section 3(6) of the Pilotage Act 1987 and should you wish to do so you should provide these in writing within six days of the date of this letter."

Correspondence between solicitors acting for the petitioner and the respondents ensued, including a letter dated 15 May 2009 in which the respondents intimated that a hearing in respect of the notice would take place on 15 June 2009 and that two hours were set aside for that hearing.

[7] As well as seeking reduction of the interim suspension decision intimated on 23 and 24 March and the notice of 29 April intimating intention to revoke the petitioner's authorisation to act as a pilot, the petitioner seeks certain further orders. As support for reduction of the interim suspension, the petitioner also seeks declarator that paragraph 6.2.1 of the Forth Ports plc Pilotage Code of Practice 2008 is ultra vires and invalid. In relation to the notice of 29 April, which he seeks to reduce on a number of grounds, he also seeks suspension or reduction of what he describes as a "decision" of the respondents on 15 May to confine the hearing of 15 June to two hours, their "decision" on 4 June to confine the hearing of 15 June to factual submissions, and their "decision" on 10 June to refuse to adjourn that hearing. Finally he seeks to interdict the respondents from suspending or revoking his authorisation in light of the invalidity of the notice of 29 April and the unfairness of the arrangements for the meeting on 15 June.

The Challenge to the Decision to Suspend Pending Investigation

[8] I deal first of all with the decision to suspend the petitioner from pilotage duties with immediate effect pending a full investigation and inquiry. It should be noted immediately that the decision is restricted to suspension "from pilotage duties". The petitioner maintains that that decision to suspend was ultra vires the respondents because section 3(5) and (6) of the Pilotage Act 1987 sets out the procedure for suspension which was not implemented in this case. Section 3(5) and (6) is in relevant part in the following terms:

"(5) A competent harbour authority may suspend or revoke an authorisation granted by it under this section if it appears to it -

(a) that the authorised person has been guilty of any incompetence or misconduct affecting his capability as a pilot;

....

(6) Before suspending or revoking an authorisation under sub-section (5)(a) ... above, a competent harbour authority shall give written notice of its intention to do so to the authorised person, stating the reasons for which it proposes to act, and shall give him a reasonable opportunity of making representations."

As can be seen from the terms of the intimation of the suspension of the petitioner from pilotage duties, no opportunity of making representations was afforded to him before the decision took effect.

[9] In my opinion this challenge is misplaced. The respondents did not, in making this interim decision, purport to apply a sanction for incompetence or misconduct, but were following the procedure laid down in their Pilotage Code of Practice to apply during all stages of the investigation and determination of all serious cases of incompetence or misconduct. Paragraph 6.2.1 of the Code is in these terms:

"6.2.1 In serious cases Forth Ports may require a pilot to immediately cease pilotage duties under his authorisation pending a formal inquiry to consider the representations of the pilot concerned by giving written notice to the pilot stating:-

(i) he is suspended from carrying out pilotage duties with effect from the date of receipt of such notice;

(ii) details for the reasons for the immediate suspension of pilotage duties; and

(iii) that Forth Ports may suspend/revoke the authorisation.

Forth Ports may immediately suspend a pilot from carrying out pilotage duties in the event of Forth Ports, in good faith, considering it necessary to preserve safety of navigation in the Forth or for any other reason where Forth Ports, in good faith, considers it necessary having regard to its own statutory duties.

Immediate suspension of pilotage duties will not prejudice the rights of a pilot to make representations in terms of Section 3(5) of the 1987 Act."

While it is unfortunate that no mention of the possibility that the respondents may "suspend/revoke the authorisation", requirement (iii) above, was made in the e-mail and letter intimating the decision, that omission is of no significance in this case, since both e-mail and letter made it clear that the matter was viewed as a serious one, the terms of the provision and the sanctions were well known to the petitioner, and the petitioner does not in any event rely on that omission for his challenge to the decision.

[10] The petitioner also challenges the decision on the ground that, since the authorisation of pilots is part of a statutory scheme regulating the provision of pilotage services, a pilot may be suspended even on an interim basis only on the strength of statutory authority. For support for this proposition Mr McKenzie for the petitioner relies upon a decision of the Supreme Court of Canada - McGillivray v Kimber (1915) 26 DLR 164 - that a pilot cannot be "arbitrarily dismissed" and is entitled to follow his calling unless condemned in disciplinary proceedings for any of the offences for which pilotage authorities may try him and suspend or dismiss him. Under reference to Esso Petroleum Co Ltd v Hall Russell & Co Ltd [1989] AC 643 at page 26 et seq, he submitted that the status of a pilot in the United Kingdom was the same as that of a pilot in Canada, an independent professional man, and that reliance could accordingly be placed on McGillivray as authoritative as to the circumstances in which a pilot might be suspended. If Parliament had intended to change that situation when it passed the Pilotage Act 1987, then it would have been bound to do so explicitly.

[11] I reject this submission for two reasons. In the first place, as I have already said, the respondents did not purport to suspend the petitioner's authorisation, but confined the decision to suspension from "pilotage duties" with immediate effect "pending a full investigation and inquiry" which, I was advised in Court, had no adverse financial consequences for the petitioner. This was not a sanction and did not alter his status.

[12] Secondly, an adequate statutory foundation for the respondents' decision does actually exist. The petitioner's authorisation, signed by the petitioner and on behalf of the respondents in October 2007, is specifically stated to be subject to inter alia the Forth Ports Pilotage Code of Practice. In the introductory section the Code provides that "Forth Ports' principal duty under the Pilotage Act is to provide a pilotage service, which secures the safety of ships navigating in its harbour." The foundation for that statement is to be found in section 2(1) of the Act, which is in the following terms:

"(1) Each component harbour authority shall keep under consideration -

(a) whether any and, if so, what pilotage services need to be provided to secure the safety of ships navigating in or in the approaches to its harbour; and

(b) whether in the interests of safety pilotage should be compulsory for ships navigating in any part of that harbour or its approaches and, if so, for which ships and in which circumstances and what pilotage services need to be provided for those ships.

(2) Without prejudice to the generality of sub-section (1) above, each competent harbour authority shall in performing its functions under that sub-section have regard in particular to the hazards involved in the carriage of dangerous goods or harmful substances by ship.

(3) Each competent harbour authority shall provide such pilotage services as it considers need to be provided as mentioned in sub-section (1)(a) and (b) above."

The respondents' duty to "keep under consideration" pilotage services "to secure the safety of ships navigating in or in the approaches to its harbour", along with the provisions of section 3(5) relating to the suspension or revocation of an authorisation, provide authority for the respondents, in the prudent exercise of their responsibilities, to impose an immediate suspension from pilotage duties (as distinct from a suspension of the pilot's authorisation) pending investigation and determination of any allegation of a serious case of incompetence or misconduct. I therefore reject the petitioner's claim that paragraph 6.2.1 of the Code of Practice is ultra vires the respondents, and will refuse his application to suspend the interim suspension decision.

The Challenge to the Decision to Issue Notice of Intention to Revoke Authorisation
[13] Since the petitioner makes no criticism of the preliminary investigation, the preliminary inquiry, the Disciplinary Committee hearing, or the recommendation flowing therefrom, I can move straight to the second decision at the heart of the petitioner's challenge to the actions of respondents, namely the decision to give notice of intention to revoke the petitioner's authorisation as a pilot.

[14] The petitioner highlights the provisions of the Pilotage Code of Practice setting out the action to follow upon the hearing before the Disciplinary Committee. Paragraph 6.2.5(v) and (vi) is in these terms:

"(v) After closure of the hearing the Convenor and members of the Disciplinary Committee shall consider all the information available and shall then make a recommendation to Forth Ports regarding disciplinary measures which may either be notified to the pilot in writing or immediately communicated to him by Forth Ports.

(vi) The recommendations which may be made are as follows:

(1) that the allegations are baseless and that no further action be taken,

(2) that a letter from the Chief Harbour Master advising of concerns raised by the incident is sufficient,

(3) a caution to last for a period of one year,

(4) a warning to last for a period of three years,

(5) a reprimand to last for a period of five years,

(6) suspension/revocation of the pilot's authorisation under section 3(5(a) or (b) of the 1987 Act in accordance with the provisions below".

The "provisions below" are set out in paragraph 6.2.6 as follows:

"(i) Before suspending or revoking an authorisation, Forth Ports shall give written notice by recorded delivery ...to the pilot stating that Forth Ports intends to suspend/revoke the authorisation as appropriate and providing details of the reasons for its intention.

(ii) In addition to the terms of the preceding paragraph such notice shall also invite the pilot to reply within a specified time limit...whether or not he wishes to make representations at a formal hearing".

There then follow provisions relating to arrangements for, and procedure at, the hearing. The petitioner challenges the validity of the notice on a number of grounds based on these provisions.

[15] Logically the challenge which should be addressed first is that based on the petitioner's submission that the doctrine of legitimate expectation applied so that it was to be "expected" that the ultimate decision-maker would follow the recommendation of the Disciplinary Committee in the absence of a compelling reason to depart from it. He described legitimate expectation as a "developing theory" and sought to apply it here to the situation where the recommendation was made by a Disciplinary Committee composed of members endowed with expert knowledge and experience not possessed by the ultimate decision-makers.

[16] I agree with Mr Currie for the respondents that the core principle of legitimate expectation is clear and does not arise on the averments or submissions of the petitioner in this case. As Lord Hodge pointed out in John Findlay, Petitioner [2006] CSOH 188 at paragraph 24, legitimate expectation requires as a trigger some representation as to future conduct that has been expressly stated or can be inferred from previous practice. Mr Mackenzie for the petitioner failed to identify any circumstances amounting to such a representation. In any event it is clear from the terms of the Code that, in the event that a pilot makes representations in response to the notice, the executive directors of the respondents have a fact finding role.

[17] The petitioner's primary challenge to the validity of the notice is based on a submission that no adequate reasons for revocation are set out therein. Implicit in that and the preceding submission taken together, may be the contention that the respondents were bound to state reasons for departing from the recommendation of the Disciplinary Committee and considering a more serious sanction. I do not consider that to be the import of the provisions quoted above read together. In terms of paragraph 6.2.6(i) the respondents are bound to provide details of "the reasons for its intention" to revoke the authorisation. The question that arises is whether the notice sets out adequate reasons therefor. Mr Mackenzie referred in particular to the foundation of that provision, namely section 3(6) of the Pilotage Act 1987, quoted in paragraph 7 above. He maintained that the notice failed to satisfy the well known requirements for such a notice, summed up clearly and succinctly by the Lord President (Emslie) in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 348:

"...(the decision makers) must give proper and adequate reasons which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the Court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it".

The terms of the notice of 29 April are set out in paragraph 5 of this Opinion.

Mr Mackenzie acknowledged that the respondents' reasons in relation to the third incident were discernible because that had been the subject of full discussion in the report of the preliminary investigation; however, the reasons were quite inadequate in relation to the other two which were simply referred to briefly in the final paragraph of that report as events that had occurred without any mention of the circumstances.

[18] What that submission ignores is the cumulative effect of three incidents within such a short period. Mr Currie referred to the first two incidents as the background against which the more serious third event was viewed. I consider that the notice set out clearly that it was on the basis of the whole circumstances of three incidents in a relatively short period culminating in what they regarded as a serious incident on 23 March, all as notified to the petitioner in the findings and conclusions of the preliminary investigation, that the respondents regarded the whole circumstances as grave enough evidence of incompetence to warrant revocation of the petitioner's authorisation.

[19] It was also submitted by Mr Mackenzie that the inadequacy of the reasons in relation to the first two incidents was such that the petitioner did not have sufficient notice to enable him to prepare his response. It has to be borne in mind that the petitioner was involved in, and had full knowledge of, all three incidents and that the first two were discussed, albeit briefly, before the Disciplinary Committee. Both involved collisions with resultant damage. At no stage did the petitioner or his solicitor complain that they did not understand the case to be met. And, of course, they had the report of the findings and conclusions of the preliminary investigation. I therefore reject the petitioner's contention that the notice failed to give adequate reasons for the respondents forming the intention to revoke the authorisation.

[20] Mr Mackenzie referred me to Conway v Clyde Pilotage Authority 1951 SLT (ShCt) 74 as a case in which the circumstances bore some resemblance to those of the present case. It seems to me that that decision depends on its own particular facts and does not provide assistance in resolving the issues that arise in the present case where the sequence and nature of events were quite different.

[21] The petitioner also suggested that another way of looking at the inadequacy of the notice in relation to the first two incidents was to regard them as irrelevant to the issue of the petitioner's competency and thus as material that ought not to have been taken into account by the respondents. For the reasons already given I do not consider these two events to have been inadequately identified or to be irrelevant to the issue of competency.

[22] The petitioner further argues that no pilotage authority acting reasonably could have come to the view that the relevant material presented could justify a finding of incompetence or misconduct within the meaning of section 3(5) of the Act meriting revocation of the authorisation. The petitioner relied for support for this submission on the judgment of the Divisional Court in England in The Empire Antelope [1943] 79, in particular at 84 and 85. The provision under construction there was section 471(1)(b) of the Merchant Shipping Act 1984 which gave tribunals of inquiry power to cancel a pilot's certificate "if they find that he is incompetent or has been guilty of any gross act or misconduct, drunkenness or tyranny". The issue there was whether the master was "from incompetency unfit to discharge his duties". The Court expressed the opinion that "the circumstances must be quite exceptional to justify a finding of unfitness to discharge his duties by reason of incompetency against a master with an unimpeachable record in relation solely to an isolated incident". Mr Mackenzie emphasised the overwhelming significance to the respondents' decision of the single incident involving the Frisian Trader; but the circumstances of that event were not so exceptional as to merit a finding of unfitness through incompetency. He argued, in the alternative, that the matter could only be resolved properly after hearing evidence about the particular circumstances of the incident and expert evidence about its significance. The petitioner offered to prove that the incident was not of the exceptional nature envisaged in The Empire Antelope. The conclusion of the preliminary investigation that the petitioner displayed "a lack of decisiveness" when dealing with the master of the Frisian Trader was so vague as to be meaningless, as was the conclusion that the petitioner should have reported the persistent refusal of the master to accept his advice to the Duty Harbour Master. That duty depended on there being an obvious danger and the petitioner offered to prove by evidence that there was no such danger. His obligation to immediately inform the Chief Harbour Master or other nominee, set out in paragraph 2(e) of the conditions of his authorisation, did not apply to transient dangers such as those that arose from a dangerous manoeuvre, but arose only in relation to more substantial features or happenings that had an effect on navigation in general. He pointed to the terms of paragraph 2(e) obliging the petitioner to inform the Chief Harbour Master "in the event of the Pilot observing any alteration in the channel, that any of the navigational marks are damaged or out of place, or any other circumstance which the Pilot reasonably considers may have an adverse or prejudicial effect on navigation". He further offered to prove that an inference of incompetence could not be drawn from the facts relied upon.

[23] That analysis fails to have regard to the cumulative impact of the three events combined with the gravity of the third. Mr Currie pointed out that the preliminary inquiry relied, for the conclusion that the contact with the Fionia Swan should have been reported immediately, on the fact that the vessel was a tanker loading at an oil jetty with potentially serious consequences, circumstances of obvious danger. In Answer 4 the respondents make averments relying on that finding; the petitioner's averments in response do not set out a factual basis for leading evidence to challenge that finding. In my opinion the application of paragraph 2(e) is not restricted to any particular category of circumstance. The two circumstances mentioned specifically are simply examples of situations in general which may have an adverse or prejudicial effect on navigation. One is in itself fairly general in nature and the other is limited to "navigational marks". I consider that the expression "any other circumstance" includes events relating to the manoeuvring of a vessel where the pilot reasonably considers they may have an adverse or prejudicial effect on navigation. In my opinion paragraph 2(e) certainly includes dangerous manoeuvres which could cause damage to port structures or other shipping in the vicinity. Against that background and the description of events in the report of the findings and conclusions of the preliminary inquiry, it is easy to understand that the reference to "a lack of decisiveness" when dealing with the master of the Frisian Trader is a description of his failure to take any steps such as informing the Duty Harbour Master to overcome his own inability to impress upon the master of the Frisian Trader the risks of not following his advice. Indeed at the Disciplinary Committee the petitioner acknowledged that he should have been more assertive. I agree with Mr McKenzie that the judgment in The Empire Antelope has a bearing. However I note that section 3(5) of the Act relating to suspension or revocation refers to the authorised person being "guilty of any incompetence or misconduct affecting his capability as a pilot", and that the lesser sanction of suspension is available, in addition to that of revocation. That suggests that in the context of the Pilotage Act 1987 "incompetence" is not confined to cases of complete unfitness. However I acknowledge that in this particular case the core question remains whether three incidents involving collisions resulting in damage and culminating in the collision with the Fionia Swan provide an adequate basis for a pilotage authority acting reasonably to conclude that a pilot is unfit to continue to be authorised as a result of incompetency. There was some debate about whether "incompetency" had been accepted by the petitioner since he was content to accept the sanction of a caution, a sanction arguably dependent upon a finding of incompetency. The matter was not developed and it is therefore unnecessary to analyse that issue further. The vital question is whether the circumstances that were the subject of material before the respondents entitled them to make the decision to issue the notice of intention to revoke. In my opinion they did.

[24] The petitioner also submitted that the respondents took account of other irrelevant material in arriving at their decision, namely information about training that the petitioner undertook on a simulator. Prior to the Disciplinary Committee hearing on 20 April the petitioner had arranged to undergo simulator training at South Tyneside College. He thought that that would impress the Disciplinary Committee. The simulator training took place on 21 and 22 April, the two days immediately following the hearing. The petitioner avers that the training did not go well for him. He further avers that it was supervised by a senior pilot who at the end of the exercise told him that he was concerned about his ability and that he might require to undergo more than the three assessment trips that had been recommended by the Disciplinary Committee in addition to the caution. Later that day the petitioner received an e-mail from an employee of the respondents in the following terms:

"Please be advised that for the sake of good order, your assessment trips should not start until the Forth Ports Board accept the Disciplinary Hearings recommendations."

[25] That does not provide a basis for concluding that in their role as decision-makers the executive directors of the respondents took account of the results of the simulator training. The notice of 29 April 2009 states clearly that the decision to issue the notice "has been reached following the recent investigation and hearing into your competence resulting from the following incidents in which you were the authorised pilot" and then sets out the three incidents.

[26] The petitioner also founds on the contents of a bundle of papers sent by the respondents to his solicitors a few days before the 15 June hearing in which was included a letter dated 11 May from South Tyneside College concerning the simulator training. Mr Currie explained that it was the duty of the respondents to disclose to the petitioner all relevant material in their possession in case the petitioner might wish to make use of that material. Bearing in mind modern practice in relation to disclosure which tends to err on the side of transparency, the terms of the notice of 29 April and the particular form of procedure being followed where a preliminary determination would have become effective but for challenge by the petitioner triggering the hearing and appropriate arrangements in preparation therefore, these events also do not warrant an inference that the results of the simulator training exercise were improperly taken into account by the respondents in making the decision to issue the notice of intention to revoke.

The Challenge to Decisions Relating to Final Hearing

[27] As I indicated in paragraph [7] of this Opinion the petitioner made submissions in support of his pleas that the respondents acted unfairly and in breach of the rules of natural justice in making arrangements for the ultimate hearing on 15 June 2009. He seeks suspension and reduction of decisions of 15 May and 4 and 10 June relating to these arrangements and interdict against the respondents suspending or revoking his authorisation.

[28] In the period leading up to the final hearing on 15 June the petitioner made representations in response to the notice intimating intention to revoke. These were submitted in letters dated 5, 7, 13 May and 3 and 9 June from his solicitor. Following the letter of 13 May, which included representations of a legal nature, the respondents replied by letter dated 15 May intimating that a hearing would be convened by two executive directors of the respondents on 15 June at 11am and that two hours had been set aside for the hearing. The letter requested "written representations and supporting evidence no later than a week before the hearing".

[29] Following further written submissions made on 3 June 2009, the respondents intimated by letter dated 4 June 2009, under reference to the Code of Practice, section 6.2.6(vi) [sic] that the hearing was to be fact finding and informal in nature and that it was expected that submissions would be factual in nature. The petitioner's solicitor protested about this in a reply dated 5 June, in which he contended that the case gave rise to serious issues of public law.

[30] The solicitor followed up with further submissions of a factual nature on 9 June. Then on 10 June a bundle of papers was sent by the respondents to the solicitor, which included some material not previously seen, in particular the letter of 11 May 2009 referred to above concerning the simulator training and certain radar prints relating to the incident on 4 March and photographs relating to 14 March. On receiving these documents on 10 June the solicitor responded immediately, making a request for a two week adjournment to allow for proper preparation. The respondents replied that same day to state that it was not possible to adjourn the hearing due to the unavailability of one of the panel. The letter went on to state that the respondents did not believe there were any matters disclosed in the bundle which required any adjournment. In his letter of 3 June the solicitor stated that "if by 1pm on the day of the meeting it remains your intention to penalise Captain Cooper in any way then, in that event, we have instructions to refer the matter immediately to the High Court by way of an Application for Judicial Review". He went on to state that he had arranged a meeting with counsel in Edinburgh at 2pm on the day of the hearing. The letter of 10 June requesting an adjournment again mentioned meeting counsel at 2pm on 15 June as well as reserving the right to be represented by counsel at any resumed hearing. In their reply the respondents stated that neither of the executive directors considered it appropriate, given the hearing would be fact-finding and informal in nature, that counsel should be present in addition to the solicitor.

[31] The solicitor representing the petitioner attended on 15 June but simply to present a letter setting out a number of reasons why he submitted that the proceedings were illegal and stating that he could not take further part in illegal proceedings. He therefore withdrew.

[32] Since the petitioner's solicitor made no attempt to raise the three matters complained of at the hearing on 15 June, it is not possible for me to conclude that the respondents made final decisions in relation to the procedure for the hearing that were unfair to the petitioner or denied him natural justice. In any event the decision to allocate two hours did not on the face of it preclude extending that time or indeed allocating later time should that turn out to be necessary and appropriate. Similarly the statement that the hearing should be fact finding and informal in nature and that the submissions should be factual in nature does not amount to a statement that no consideration will be given to oral submissions at the hearing or written submissions preceding the hearing which may raise legal issues. Indeed in response to letters from the solicitor dated 5, 7 and 11 May containing submissions which might be described as of a legal nature, the respondents stated that no doubt these matters would be explored at the hearing. Apart from anything else, there is considerable room for debate about what are issues of law, what are issues of fact, and what are issues of mixed fact and law. As Mr Currie pointed out, in Moore v Clyde Pilotage Authority 1943 SC 457 at 464 to 465 the Lord President (Normand) stated that all findings of breach of duty or error of judgment are necessarily set forth as findings in fact and in law because they involve the legal notion that there is a duty or a standard to be observed, but that that formula does not make the question whether a pilot is guilty of negligence or error of judgment a question of law. I do not read in the correspondence a statement that any issue shown to be relevant would not be considered at the hearing. The letter stating that it was not possible to adjourn the hearing went on to state that the respondents did not consider that any of the matters contained in the bundle sent on 10 June required any adjournment. The respondents' decision on that matter was based on their paper assessment of the situation. Adjournment is a judicial remedy which should remain available as necessary throughout proceedings. It cannot be said on the material available that, if the petitioner's solicitor had been able to make out an adequate case at the hearing, he would have been refused an adjournment that was necessary to ensure that the petitioner was treated fairly. As the solicitor pointed out in the letter of 5 June to the respondents, section 6.2.6 (v) provides that the rules of natural justice shall apply to any such hearing.

[33] In addition, so far as prejudice to the petitioner resulting from refusal of the request for adjournment is concerned, Mr Mackenzie for the petitioner was unable to identify any matter that could not be adequately addressed on behalf of the petitioner prior to 15 June. The information about the simulator training was already known to him albeit he had not received it in writing, and he was well placed to object to any reference being made to it at the hearing if he so wished. It was not submitted that the additional material relating to the first two incidents, in particular the radar prints and the photographs, contained information which required analysis and interpretation with a view to establishing facts different from those already established.

[34] For these reasons I reject the petitioner's contention that the respondents acted unfairly or contrary to natural justice.

Interlocutor

[35] Since I have rejected all the challenges advanced for the petitioner and since no argument has been advanced that the actual conduct of the hearing on 15 June was unfair, there is no basis for interdicting the respondents from suspending or revoking the petitioner's authorisation to act as a pilot proceeding upon the notice of 29 April 2009.

[36] In light of the preliminary pleas, the hearing before me proceeded in part as a debate on relevancy in which Mr Currie made the initial submissions. However the merits were also fully addressed. In all the circumstances I consider it appropriate to determine the issue on the basis of the pleas addressed to the merits. In the course of the hearing Mr Mackenzie departed from the part of the case that is reflected in the second plea-in-law for the petitioner. To give effect to the various determinations I have made in this opinion, I shall sustain the third and fifth to eleventh pleas for the respondents and repel the remaining pleas for the respondents and all pleas for the petitioner, and refuse the prayer of the petition.