Act: O'Neill Q.C; Thompsons

Alt: Muir Q.C., Smith; Scottish Government Legal Directorate

29 January 2010

[1] There is a motion before the court on behalf of the petitioner to recall the sist and to allow the Minute of Amendment No 31 of process to be received and to allow the respondent to lodge Answers to it within 28 days if so advised. There is no controversy regarding the recall of the sist; it was granted on 18 November 2008 in a situation in which the petitioner's enjoyment of Legal Aid was in issue. The substantial part of a motion is opposed. Before us it was argued on behalf of the petitioner that the reception and allowance of the Minute of Amendment was necessary to focus the real issue in controversy between the parties. It was accepted, rightly in our view, that, if the amendment were to be allowed, the case would require to be remitted to the Lord Ordinary to hear further argument after a formal recall of her interlocutor of the 16 November 2007, all in terms of Rule of Court 38.2. It was pointed out that there were precedents for amendment at a late stage of proceedings such as this, which process, in any event, the Rule of Court just referred to contemplates. It was suggested that the purpose of the Minute was to clarify the real issues that were in controversy. The case had been presented to the Lord Ordinary primarily on the basis of the possibility of some breach of private law and concerns relating to that. However, it was now intended to expand the basis of the petition, so as to rely on aspects of the State's duty to enquire into the circumstances of a death unrelated to those particular concerns, more focussed upon the possibility of inappropriate practices within the National Health Service in relation to persons having learning difficulties and who were otherwise vulnerable such as the deceased.

[2] Several authorities were relied upon which were said to clarify the scope of the State's duty under Article 2 of the European Convention to enquire into the circumstances of deaths; particularly reference was made to L v The Secretary of State for Justice which had been decided in the House of Lords in November 2008. It was argued that the amendment would not necessitate investigations into new areas of fact by the respondent. There would be procedural difficulties in the face of the petitioner if, as an alternative, she were to be forced to bring a new Petition for Judicial Review now.

[3] Counsel for the respondent opposed the motion in relation to the proposed amendment. He analysed the effect of the Minute of Amendment, if allowed to be received. It would necessitate factual enquires in several areas with different authorities. However, his main objection to its reception was that this Minute of Amendment was no more than an elaboration of the Minute of Amendment which had been refused by this court on 25 September 2008. If the court were to take another course now and allow reception of the Minute, in effect, it would be reviewing its own decision made on that earlier date, which was illegitimate. It was emphasised that this process was a Judicial Review in which expedition was to be expected and was necessary. That aspect of the matter had been ignored. If appropriate, there could be a fresh Petition for Judicial Review.

[4] In the light of the arguments presented to us, in our judgment, the motion for the reception of the Minute of Amendment must be refused. Our principal reason for reaching that conclusion is that we are persuaded that the Minute No 31 of process amounts to no more than an elaboration of the earlier Minute No 26 which was refused on 25 September 2008. Furthermore, the elaboration is based on material which was available at that earlier date, in particular, the affidavits of Elizabeth Downie and the petitioner herself, which had been available prior to 25 September 2008. In addition, the Minute now tendered reflects contentions which previously were expressed, not in the pleadings in the case, but in a statement of arguments which was put before the court in the earlier hearing. We also regard the delay which has occurred in the proper formulation of the petitioner's contentions in this Petition for Judicial Review unacceptable. There is no real justification, in our view, for that delay.

[5] In addition we are quite satisfied that, were the Minute No 31 to be received, that would compel the respondent to undertake factual enquires in a number of areas years after the relevant events. We do not consider that that is a responsibility that can be properly imposed upon her. So, for these reasons the motion, so far as controversial, is refused.