Act: Johnston Q.C., McBrearty; Balfour + Manson LLP (for Taylor & Kelly, Glasgow)

Alt (First): Shand Q.C.; Simpson & Marwick;

Alt (Second): Anderson Q.C, Ross.; Scottish Government Legal Directorate

2 March 2011

[1] This appeal is taken against an interlocutor of the Sheriff Principal at Glasgow, whereby he excluded from probation the appellant's averments in Article 12 of Condescendence and otherwise adhered to an interlocutor of the Sheriff whereby he refused Crave 2 "insofar as it relates to the first named defender" and dismissed the action insofar as directed against the second defender.

[2] The foundation of these proceedings are allegations by the appellant that officers of Strathclyde Police, on 6 September 2004, assaulted him in various ways which are set out in Article 3 of Condescendence in the initial writ. The first defender is said to be vicariously liable for these assaults. In Article 5 of Condescendence it is averred as follows.

"The actings of the Strathclyde Constables on or about 6 September 2004 were not justified by the behaviour of the pursuer. They were concerted, deliberate and malicious. They amounted to an assault on the pursuer".

In Article 7 of Condescendence, it is averred:

"As a result of the Strathclyde Constables' actings, the pursuer suffered loss, injury and damage. He suffered the affront and insult of being assaulted. He suffered tenderness and scratching to the head. He suffered bruising, scratching and abrasion to the body. The sum sued for in Crave 1 is a reasonable estimate of the pursuer's loss, injury and damage."

The sum sued for in Crave 1 is £10,000. The appellant's first plea in law is in the following terms:

"The pursuer having suffered loss, injury and damage through being assaulted by officers for whose conduct the first defender is responsible, he is entitled to reparation from him therefor".

The truth, or otherwise, of the allegations of assault has not yet been established. Allegations of this kind, made by persons being taken into custody by police officers, may be investigated in a proof in a common law action for damages for assault. In the event that liability is established, damages may be awarded

[3] The appellant has, however, gone further in his writ than seeking such a determination. In Article Six of Condescendence he avers:

"The actings of the Strathclyde Constables on or around 6 September 2004 were not made strictly necessary by the conduct of the pursuer. They diminished his human dignity and amounted to degrading treatment incompatible with the (sic) his rights under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention')."

It should be noted that in Article Seven of Condescendence, as well as having averred that the sum sued for in Crave 1 is a reasonable estimate of the pursuer's loss, injury and damage arising from the alleged assaults, the averments continue:

"The award of damages sued for in Crave 1 is necessary to afford just satisfaction to the pursuer in terms of Section 8(3) of the Human Rights Act 1998 in respect of the loss, injury and damage that he suffered as a result of actings of the Strathclyde Constables incompatible with his rights under Article 3 of the Convention".

The pursuer's third plea in law is in the following terms:

"The treatment of the pursuer on or about 6 September 2004 being degrading treatment contrary to Article 3 of the Convention by a public authority and the award of damages sued for in Crave 1 being necessary to afford just satisfaction to the pursuer in terms of Section 8 of the Human Rights Act 1998 for that treatment, decree for damages should be pronounced against the first defender as craved."

Thus far, then, it would appear that the appellant is seeking against the first respondent a total sum of £10,000, cumulatively, in respect of two separate legal wrongs for which the first respondent is said to be responsible. Matters do not rest there, however, for in Article 8 of Condescendence the appellant sets out the following averments:

"At around November 2004 the pursuer made a complaint to the first defender about his treatment by the Strathclyde Constables. He complained that they had treated him in the manner hereinbefore condescended upon. On or about 23 December 2004 the Complaints and Discipline Branch of Strathclyde Police, Police Headquarters, 173 Pitt Street, Glasgow ("the Complaints Branch") sent a report about the pursuer's complaint to the Procurator Fiscal, Procurator Fiscal's Office, 10 Ballater Street, Glasgow ("the Procurator Fiscal"). On or about 10 January 2005 the Procurator Fiscal instructed the Complaints Branch to carry out an enquiry into the pursuer's complaint. On or around 13 January 2005 the Complaints Branch appointed Inspector Darroch of Strathclyde Police to carry out that enquiry..."

The appellant then goes on to criticise, in some detail, both in Article 8 and Article 9 of Condescendence, the nature of that investigation and the enquiry, and the outcome of it which was that the Procurator Fiscal decided that the available evidence would not justify criminal proceedings being brought against any of the police officers. The Complaints Board of Strathclyde Police, furthermore, decided that no disciplinary action be taken against any of the police officers involved in the matter.

[4] In Article 10 of Condescendence the appellant avers:

"The Complaint Branch's and Procurator Fiscal's acts and omissions as hereinbefore condescended upon were incompatible with the petitioner's (sic) right under Article 3 of the Convention to a thorough and effective investigation of his complaint by the state"

There then follow averments purportedly supporting that contention. Articles 11 and 12 of Condescendence set out averments to the effect that Strathclyde Police were in breach of the Article 3 investigatory obligation and the Lord Advocate was also in breach of that Article 3 obligation in respect of the acts and omissions of the Procurator Fiscal in considering the matter and deciding that no criminal proceedings should be brought against the police officers. This chapter of the case appears to be supported by a general plea, plea in law 4, directed against both respondents in respect of alleged breaches of Article 3 of the Convention and a crave (Crave 2) for payment by them of £10,000 in damages sought from them "severally" as "just satisfaction" in terms of Section 8 of the Human Rights Act 1998.

[5] Any practitioner in the business of civil litigation might, when faced with this omnibus approach to several claims in a single action, query the appropriateness of this approach. He or she might reflect that in a single sheriff court action a straightforward claim for damages for assault finds itself coupled with (a)  a claim for breach of the substantive obligation under Article 3 of the European Convention on Human Rights and (b)  claims against two defenders "severally" for breaches of the obligation arising under the Article as regards investigation and inquiry. One action is being brought against two separate defenders with three distinctive juristic bases of claim being made. Closer and more considered attention to what is being sought in this single action might give further concern as to what is contemplated. In the first place, as has been noted, the factual basis upon which the claim of assault is made has not yet been established in any civil litigation. The pursuer seeks to achieve that in this litigation. If the court were to hold that there was no substance at all in his allegations then it is hard to see how the rest of the edifice piled onto this writ would not simply collapse. Any complaint about his treatment would have been held to have been baseless.

[6] Secondly it is reasonably clear that the claims in respect of failure to carry out an Article 3 compliant investigation involve firstly, an attack on the quality of the actual investigations that were undertaken in this case because of alleged defects in the procedure adopted, and secondly, on the one view of matters at least, a systemic attack on established procedures in the system for dealing with police complaints. Those complaints, in any event, clearly raise important questions of administrative law which normally at least, would require to be made the subject of judicial review proceedings in the Court of Session. What the appellant's averments in Articles 8, 9, 10 and 11 seek, in substance, is to have reviewed the investigatory proceedings that have been carried out so far, to have a finding that these proceedings were incompatible in some way with Article 3 of the Convention and consequently that the appellant is entitled to damages for breach of Convention rights, not because of any assault. That is quite simply a separate and distinct claim in law from a claim based on common law assault and deals with quite distinct subject matter in fact and law. This claim, when properly analysed, involves an attack, in administrative law, on administrative acts and decisions, namely the administration of the complaints procedure in the instant case and possibly also an attack on the adequacy or otherwise of established procedures in general.

[7] Notwithstanding these difficulties, neither of the defenders thought fit to raise any of them as at least providing grounds for suggesting that the proceedings were, as brought, incompetent. Instead, without further ado, it seems that parties agreed that there should simply be a debate before the Sheriff restricted to the relevancy of the averments in relation to the complaint regarding the defenders' actings under Article 3 of the Convention. A debate of several days took place before the Sheriff followed by a three day appeal before the Sheriff Principal where again the focus, it appears, was entirely on the appellant's averments regarding Article 3 infractions.

[8] It appeared to this court, on considering the papers before the appeal hearing, that fundamental questions of competency arose, on the lines just set out. Before the parties were invited to make their submissions the concerns of the court as to the form and nature of the proceedings were raised. It was apparent that none of the representatives of the parties had, even at that stage, seen any difficulty in that regard. Having raised the possibility of such difficulties the court recognised that counsel should be given time to consider them and a short adjournment was allowed.

[9] On resuming, senior counsel for the appellant contended that there was nothing incompetent in the proceedings seeking damages in respect of alleged breaches of Article 3 rights as well as simply suing for damages at common law for assault which might be the source of the complaint made under the complaints procedure. Moreover, and in particular, the claim for damages in respect of alleged breaches of the appellant's human rights in an ordinary action for damages for assault, did not constitute an illegitimate attempt to have the proceedings and decision taken under the complaints procedure judicially reviewed. The appellant was simply asserting that a wrong had been committed against him which was a competent way of proceeding. The wrong was that the investigation carried out had failed as counsel put it "to reach the relevant standard". The appellant was not now seeking to have reviewed the procedures and decisions, he was simply seeking damages on the basis of what had happened in his case.

[10] Senior counsel for the first respondent did not seek to take up any point of competency against the appellant's case. Her attack, she said, was to the effect that no relevant claim against the State had been averred. In addition she would be contending that the duplicate crave in respect of the human rights claims was irrelevant. She advised the court that she would simply be seeking to support the decisions of the Sheriff and the Sheriff Principal.

[11] Senior counsel for the second respondent advised the court that, in the time made available to him, he had not been able to arrive at a considered view in relation to competency. He did, however, tentatively, see some force in what the court had said because, on one reading of the appellant's pleadings there was, in effect, an attack, in the generality, on established procedures. If that were so the claim was not one confined to the appellant's private interest but, if correct, would have wider implications.

[12] The court advised parties that it would take further time to consider and reflect upon what had been raised and discussed. On further consideration the problems with regard to the shape of this action appeared to be even greater than had been discussed. The craves in this action are directed against different defenders based on different causes of action, although one of the defenders is apparently being sued for breaches of three distinct causes of action. It is a well established principle of our law of practice and procedure that "one pursuer cannot sue two or three defenders for separate causes of action, and put into his summons a conclusion for a lump sum, and then by means of putting in the words 'jointly and severally, or severally', as the case may be, ask the court to split up this lump sum of damages and give a several decree for what the court thinks proper" see Ellerman Lines Limited v Clyde Navigation Trustees 1909 SC 690 at 691 to 692 - see also Barr v Neilson (1868) 6 M 651, MacLaren: Court of Session Practice p 266; Thomson and Middleton: Manual of Court of Session Practice pp 56-57, p 65. The present proceedings seek to address three distinct issues, distinguishable in fact and law, against two separate defenders. Our system of pleading does not provide, nor should it provide, for such an approach. To countenance such a procedure would, among other things, fly in the face of the practice in relation to conjunction of processes. Where two or more actions have been raised in relation to the same subject matter consideration may be given as to whether the actions should be conjoined. As is pointed out in Macphail Sheriff Court Practice (2^nd Edition) at para 13.43:

"Conjunction may be appropriate if the actions raise the same issue, and conjunction will achieve convenience and economy in the conduct of the actions. It is not appropriate, however, if there is at least risk that conjunction may produce confusion, perplexity, embarrassment or prejudice because of the complexity of the actions or because of the shades of distinction between the questions which they raise".

This attempt at an "omnibus" approach to pleading distinct causes of action against different defenders in the same action also runs counter to the approach of the court in relation to counter-claims. The case of Ellerman Lines Limited involved a claim by a ship owner for damages which he alleged had been caused to his ship by reason of the actings of two separate defenders which actings were said to have contributed to the damage in question. At page 693 Lord McLaren made the following point:

"If, for example, it could be shown in either of the cases that the pursuer had sustained damage - I will suppose at two different times, say in the morning of the day and again in the afternoon, and when only one defender's vessel was present - you could not possibly have one action against both defenders, because that would be a case of unconnected wrongs".

What the appellant is seeking to do in the present proceeding is to bring an action against two defenders in a case of unconnected wrongs.

[13] Legal systems, like ours, devise forms of action and rules of procedure relating to them. They do so for the obvious good purposes of avoiding undue complexity and keeping good order in litigation. Omnibus pleadings of the sort sought to be employed in this case would defeat these ends. If permitted they would result in litigation bedlam.

[14] We should say that, in addition, we heard nothing from what was said to us to dissuade us from the view that, in any event, the claims, in this case, in respect of alleged breaches of the appellant's human rights would require to be brought by way of judicial review, having regard to the considerations already referred to in this opinion. While senior counsel for the appellant referred us to certain passages from Clyde and Edwards on Judicial Review, to the effect that attacks on administrative procedures or decisions may be taken "collaterally", we are of the view that, once unshackled from the claim of damages for assault, the claims by the appellant involving human rights questions require him to have reviewed the procedures in question and to have these tested in accordance with administrative law principles before any question of "wrongs" sounding in damages arises. This is not a case where, as it is put in Clyde and Edwards at page 331 para 8.16:

"...the substance of the action is a private right or the issue is raised as a properly pleaded defence, the exclusivity of judicial review is not a ground for insisting that questions as to the legality of a decision maker's decision only be raised in judicial review".

As was pointed out in Cocks v Thanet District Council [1983] 2 AC 286 any private law right which the plaintiff in those proceedings claimed depended first on establishing the ultra vires character of the Council's decision, which is a question solely for the judicial review procedure. Similarly in the present case before any question of a remedy in damages being available to the appellant arises, the illegal nature of the respondents' actings and decisions are questions solely for judicial review procedure.

[15] Finally we should say that although senior counsel for the first respondent elected to describe the issue as one of relevancy, it seems to us that another problem of competency was, perhaps, raised in the present case. It is this - can there be two distinct defenders in relation to alleged breaches of a State's obligations under Article 3 of the Convention? This matter, however, was not discussed before as at all and we express no concluded view on that issue. It is an issue, however, which we consider may merit further consideration.

[16] It is regrettable that the points of competency which, in our view, are fundamental, and which have been addressed in this opinion, were not raised previously. Instead very lengthy proceedings have taken place first before the Sheriff and then the Sheriff Principal, no doubt at very considerable public expense. Matters of competency are, of course, pars judicis and the matters raised by the court in this case are of such fundamental importance and significance that we are of the view that the action falls to be dismissed as incompetent. We are conscious, however, that this opinion has gone into matters further, and in greater detail, than was the case when the discharged hearing took place. Accordingly, we shall have this opinion issued to the parties and the case will thereafter be put out By Order to allow any representations that may appear to be appropriate to be made on behalf of the parties before we pronounce any further interlocutor.