EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Hardie Lord Mackay of Drumadoon Lord Nimmo Smith

[2011] CSIH NO.36 P886/09 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in the Petition of IAN J COOPER Petitioner and ReclaimedReclaimer 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 Pilot agePilotage Act 1987; and of certain provisions of the Pilot agePilotage Code of Practice issued by Forth Ports plc _______

Act: Ellis Q.C.; Burnsess, LLP

Alt: Currie, Q.C.; McGriegor's, LLP

[Date of Issue]25 May 2011

Introduction

[1] The reclaimedreclaimer is a pilot authorised in terms of section 3 of the Pilot agePilotage Act 1987 ("the 1987 Act"). The respondents are Forth Ports plc. They are the competent harbour authority, within the meaning of section 1 of the 1987 Act for the River Forth. They have authorised the reclaimedreclaimer to act as a pilot within their area of jurisdiction as a harbour authority. In October 2007 the reclaimedreclaimer took up duties as a pilot in the Forth. The reclaimer's written authorisation, which was signed by the reclaimedreclaimer and on behalf of the respondents, is dated 11 October 2007 and 14 October 2007. It is subject to a number of terms and conditions. The reclaimer's authorisation as a pilot is subject to disciplinary procedures laid down and forming part of those terms and conditions.

[2] As a pilot the reclaimedreclaimer is self-employed. His services are provided to the respondents through a contract between the respondents and Golden Lion Pilot agePilotage & Marine Services Company Limited.

Statutory provisions

[3] The Pilot agePilotage Act 1987 provides:

" Provision of pilotage services.

3 Authorisation of pilots

(1) .... [A]a competent harbour authority may authorise such persons to act as pilots in or in any part of the area in relation to which its duty under section 2(1) above is exercisable as it considers are suitably qualified to do so; and such an authorisation shall specify the area within which it has effect and may specify that it only has effect in relation to ships of a particular description.

....

(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;

(b) that the authorised person has ceased to have the qualifications required from persons applying for authorisation by it under this section or has failed to provide evidence that he continues to have those qualifications;

....

(6) Before suspending or revoking an authorisation under subsection (5)(a) or (b) 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.

.... "

Pilot agePilotage authorisation

[4] The Pilot agePilotage Authorisation signed by the reclaimedreclaimer is subject to the terms and conditions of (i) the Conditions of Pilot agePilotage Authorisation and (ii) the Pilot agePilotage Code of Practice ("the Code of Practice"), which include the following:

"CONDITIONS OF PILOTAGE AUTHORISATION
By the Pilot's written acceptance of the foregoing Pilot agePilotage Authorisation (which is issued under the terms of the Pilot agePilotage Act 1987, and which recognises the respective rights and obligations of the Pilot and of the company under said Act) he acknowledges, accepts and agrees to be bound by the following conditions:-

1. The definitions contained within the foregoing Authorisation shall apply equally to those contained in these Conditions of Pilot agePilotage Authorisation.

2. The Pilot agrees as follows:-

(a) To exercise proper skill, care, attention and diligence to provide an efficient pilotage service and to conduct every vessel he pilots in such a manner so as to avoid the following:-

(i) endangering the safety of such vessel and those aboard it and such other vessels and those aboard them as the Pilot may encounter;

(ii) loss or destruction of or damage to such vessel, its machinery, navigational equipment or safety equipment and such other vessels, their machinery, navigational equipment or safety equipment and/or objects as the Pilot may encounter; and

(iii) death or injury to any person.

....

(c) To comply in all respects with all Forth Ports' Byelaws, General Directions for Navigation and Pilot agePilotage Directions and to comply in all respects with all other lawful published procedures applicable within the Forth, including such procedures either being issued to the Association of Forth Pilots or specified and contained in the Code of Practice which Code of Practice may be amended from time to time by agreement between the Company and the Association of Forth Pilots which Association the Pilot hereby appoints to act on his behalf in this respect.

(d) Tto keep himself fully acquainted at all times with all information affecting or which may affect the navigation of vessels in the Forth and in all the Company's docks and harbours.

(e) Tto immediately inform the Company's Chief Harbour Master or such other person or persons as the Company may nominate from time to time 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.

....

(l) In the event of the Pilot being involved in any collision, grounding, accident or significant incident involving a vessel under pilotage the Pilot shall be obliged to provide within 24 hours of such incident and/or accident a written report providing the information requested on the form agreed between the Company and the Golden Lion from time to time to the Company's Chief Harbour Master or such other person as the Company may nominate from time to time; Provided Always that the Company shall not disclose any information contained within such report to any third party without the Pilot's prior written consent unless required by a court of law or otherwise in connection with legal proceedings, but declaring that the foregoing proviso shall not prevent the Company from consulting its legal advisers or notifying the circumstances of a possible claim to its insurers;

....

3. Without prejudice to the Company's right to suspend and/or revoke the foregoing Authorisation in accordance with the terms of Clause 6 of the Code of Practice the foregoing Authorisation may be terminated in either of the following ways:-

(a) the Pilot surrendering the foregoing Authorisation to the Company; Declaring Always that as provided for in Clause 6.1.1(e) of the Code of Practice the Pilot shall surrender the foregoing Authorisation to the Company at his retirement, which shall be on or prior to the Pilots [sic] 65^th birthday but which shall not be prior to the Pilot's 60^th birthday unless agreed in writing by such Pilot; or

(b) the replacement by the Company of the foregoing Authorisation with an alternative authorisation, the terms of which shall be agreed between the Company and the Association of Forth Pilots which Association the Pilot hereby authorises to act on his behalf in this respect."

"CODE OF PRACTICE

....

6.                 DISCIPLINARY/REVOCATION PROCEDURE

6:1 SURRENDER/SUSPENSION/REVOCATION OF AUTHORISATION AND SUSPENSION OF PILOTAGE DUTIES

The efficiency of pilotage services in the Forth depends to a large extent on a high standard of service, co-operation and discipline. Forth Ports and the Pilots recognise that it may become necessary from time to time to take action towards individual Pilots whose performance or conduct is unacceptable or contrary to the efficiency of pilotage services.

The aims of this procedure are as follows:-

(a) To clarify the rights and responsibilities of Forth Ports and the Pilots in respect of actions resulting from breaches of rules and expected standards of (a) competency and/or (b) character and/or (c) conduct affecting or which may affect capability as a Pilot.

(b) Consistency and fairness of application.

(c) To provide the basis of an agreement between the Pilots and Forth Ports as to the circumstances in which the suspension and/or revocation of a pilotage authorisations may be appropriate by defining standards of (a) competence and/or (b) character and/or (c) conduct affecting or which may affect capability as a Pilot and by setting out circumstances in which both parties are agreed that a Pilot is no longer suitably qualified to be authorised under the Pilot agePilotage Act 1987 ("the 1987 Act").

(d) Without prejudice to the provisions of the 1987 Act, to set out a procedural framework which provides for suspension and/or revocation of a pilotage authorisation in circumstances, which have been defined and agreed by Forth Ports and the Pilots.

....

6.1.2 INCOMPETENCE/MISCONDUCT

In accordance with the terms of Section 3(5)(a) of the 1987 Act, a pilot's authorisation is liable to suspension and/or revocation if Forth Ports is satisfied that the pilot has been guilty of any incompetence or misconduct affecting his capability as a pilot. In this Clause 6, all references to "incompetence" and "misconduct" shall be construed accordingly.

Without prejudice to the provisions of the 1987 Act and for the purposes of illustration only, the following may be treated as matters of incompetence or misconduct:

(i) failure to exercise proper skill, care, attention and diligence;

(ii) violating a safety rule, which endangers the pilot or other people and causes damage to vessels, goods and/or equipment;

(iii) where a pilot gives up pilotage duty and/or leaves a vessel whilst on duty while the vessel is within the pilotage area and thereby endangering the safety or persons and property, unless the Master ofr the vessel gives the pilot express permission to do so or at the approved landing area to which he has been engaged to pilot the ship;

(iv) misconduct in accordance with the provisions of Section 21 of the 1987 Act or attending for or being on duty under the influence of alcohol and/or drugs;

(v) endangering the safety of persons and property by failing to comply with directions, bye-laws and procedures specified in this Code of Practice as may be amended from time to time between Forth Ports and the Association of Forth Pilots which Association shall act in this capacity on behalf of the pilots.

In the event that Forth Ports reasonably considers that a case does not involve incompetence or misconduct affecting the capability of a pilot, it shall refer the matter to the Association of Forth Pilots to be dealt with as such Association may think fit.

Following an initial review of the facts (as referred to in 6.2.3) by the Chief Harbour Master and a pilot member of the Pilot agePilotage Management Committee and taking into account comments from the pilot concerned, it may be decided that a letter from the Chief Harbour Master advising of concerns raised by the incident is sufficient.

....

6:2 PROCEDURES IN ALL CASES OF INCOMPETENCE/MISCONDUCT

Except where the alternatives are specifically stated below, the following procedure shall apply in all cases of incompetence or misconduct:-

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.

6.2.2 In cases where a pilot is involved in any collision, grounding or accident or significant incident involving a vessel under pilotage the pilot shall be obliged to deliver to Forth Ports' Chief Harbour Master a written report providing the information requested on the form agreed between Forth Ports and The Golden Lion Pilot agePilotage and Marine Services Company Limited within 24 hours of such accident and/or incident.

6.2.3. In all cases where the Forth Ports' Chief Harbour Master acting reasonably considers appropriate he, together with one of the pilots from the Pilot agePilotage Management Committee, will investigate the circumstances of the alleged incompetence or misconduct without delay.

6.2.4 In all cases a preliminary inquiry will take place as soon as practically possible and the pilot involved will receive written notification from Forth Ports requiring him to attend and stating the following:-

(i) the date, time and place of the inquiry,

(ii) that he may be accompanied by another pilot or in cases, which are reasonably capable of resulting in legal proceedings, by a legal adviser.

The inquiry shall also be attended by Forth Ports' Chief Harbour Master and the Pilot from the Pilot agePilotage Management Committee who investigated the circumstances of the incident. The inquiry will be in accordance with the requirements of natural justice and will be fact-finding and informal. As soon as possible after the inquiry its findings will be passed to the Convenor of the Disciplinary Committee.

6.2.5. If the Convenor considers it appropriate a disciplinary hearing will be convened and the following procedure shall apply:-

(i) Forth Ports shall given written notice by recorded delivery to the pilot (at the address last intimated in writing to Forth Ports) advising him that a hearing is to be held and inviting him to reply within a specified time limit (not less than six working days after issue of such notice) indicating whether or not he wishes to make representations at a disciplinary hearing.

(ii) In the event of the pilot not replying within the time limit specified in the notice or in the event of him indicating that he does not wish to make representations at a hearing Forth Ports may proceed to take such measures as it, acting reasonably, considers appropriate without further process.

(iii) If the pilot replies within the time limit indicating that he does wish to make representations at the disciplinary hearing, Forth Ports will notify him of a date for the hearing, which date shall be as soon as practicable, and shall advise that the pilot may make oral or written representations at the hearing and that he may be accompanied by another pilot and/or legal adviser.

(iv) the disciplinary hearing shall be convened and heard by the Disciplinary Committee, which consists of the Convenor, two Pilots from the Pilot agePilotage Management Committee and two of Forth Ports' Managers from the Marine Division and they shall review all facts, which may be relevant to the allegations of incompetence or misconduct in reaching a final decision. The hearing shall be conducted in accordance with the requirements of natural justice and shall be fact-finding and informal in nature. The rules of evidence which would apply in a Scottish court of law need not be adhered to.

(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.

6.2.6 (i) Before suspending or revoking an authorisation, Forth Ports shall give written notice by recorded delivery as aforesaid 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 (not less than six working days after issue of such notice) indicating whether or not he wishes to make representations at a formal hearing.

(iii) In the event of the pilot not replying within the time limit specified in the notice or in the event of him indicating that he does not wish to make representations at a formal hearing Forth Ports may proceed to suspend or revoke the authorisation as it sees fit without further process.

(iv) If the pilot replies within the time limit indicating that he does wish to make representations at a hearing, Forth Ports will notify him of a date for the hearing, which date shall be as soon as practicable and shall advise that the pilot may make oral or written representations at the hearing and that he may be accompanied by a pilot and/or legal adviser.

(v) The hearing shall be convened and heard by two Executive Directors of Forth Ports and they shall consider all facts, which may be relevant in reaching a final decision as to the suspension or revocation of the authorisation. The hearing shall be in accordance with the requirements of natural justice and shall be fact-finding and informal in nature. The rules of evidence which would apply in a Scottish court of law need not be adhered to.

(vi) After closure of the hearing the Directors of Forth Ports shall consider all the information available and shall then reach a decision, which may either be notified to the pilot in writing or immediately communicated to him. In the event of the authorisation being suspended or revoked, such notification or communication shall specify that the suspension or revocation shall take effect immediately and in the case of suspension of authorisation shall specify the period of suspension. "

Background to the present proceedings

[5] During March 2009 three vessels under the pilotage of the reclaimedreclaimer were involved in incidents, whilst they were approaching the Port of Grangemouth. On 4 March 2009 the reclaimedreclaimer was undertaking the pilotage of a barge, BD6074, which was being towed by mMotor tTug Napia. The barge struck and damaged a main channel buoy, which required to be written off. The reclaimedreclaimer was on the tug when the collision occurred. On 14 March 2009, the reclaimedreclaimer was undertaking the pilotage of a container ship, the Wec Van Eyck, when the ship struck a fender. Both were damaged and damage was also caused to a shore crane. Both those two incidents were reported to the Chief Harbour Master, but no disciplinary procedures under Clausessections 6.2.3, 6.2.4 or 6.2.5 were taken against the reclaimedreclaimer in respect of either incident.

[6] On 23 March 2009 a third incident occurred. The reclaimedreclaimer was piloting the Frisian Trader, a container ship loaded with containers, which were stacked four to five high and presented 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, and 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 reclaimedreclaimer 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 to move forward. The reclaimedreclaimer 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. The reclaimedreclaimer did not notify the Duty Harbour Master of either of the occasions when the master of the Frisian Trader declined to act as he advised. A subsequent 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 between the two vessels took place within a closed dock area, close to a refinery.

[7] Later on 23 March 2009 the reclaimedreclaimer received an e-mail from the respondents' Chief Harbour Master stating that preliminary investigations into the incident involving the Frisian Trader had been completed; that, considering the serious nature of the incident and taking into account other recent incidents, the respondents had decided to suspend the reclaimedreclaimer 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 procedures in the Code of Practice. A letter from the Chief Harbour Master, dated the following day, confirmed to the reclaimedreclaimer that he had been suspended from all pilotage duties pending further investigations into the events surrounding the Frisian Trader and the subsequent contact with the Fionia Swan. The letter 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".

[8] On 26 March 2009, the Chief Harbour Master wrote again to the reclaimedreclaimer. In his letter he referred to the ongoing investigation into the incident involving the Frisian Trader. He informed the reclaimedreclaimer that as required by Clause 6.2.3 of the Code of Conduct he had investigated the circumstances of the alleged incompetence/misconduct with the Pilot agePilotage Management Committee member Captain D. Kelley. The letter informed the reclaimedreclaimer that he was required to attend a preliminary inquiry on 1 April 2009. That was an inquiry to which the provisions of Clause 6.2.4 of the Code of Conduct applied. The letter of 26 March 2009 made no reference to either of the earlier incidents.

[9] The preliminary inquiry into the third incident took place on 1 April 2009 and was conducted by the Chief Harbour Master and Captain Kelley. The reclaimedreclaimer was present and was accompanied by a friend, who is a senior pilot. The preliminary inquiry's written findings and conclusions were passed to the convenor of the Disciplinary Committee, Rear Admiral Roger Lockwood, who decided to convene a disciplinary hearing under Clause 6.2.5 of the Code of Conduct. He also sent a copy of the report of the preliminary inquiry's findings and conclusions to the reclaimedreclaimer. Whilst the preliminary inquiry's findings referred to the occurrence of the two earlier incidents, those incidents were not investigated by the Chief Harbour Master and Captain Kelley and not inquired into during the course of the preliminary inquiry.

[10] The hearing before the Disciplinary Committee took place on 20 April 2009. The reclaimedreclaimer was present. The Committee decided to recommend to the respondents the disciplinary measure provided for in Clause 6.2.5 (vi)(3) of the respondents' Code of Practice, namely the imposition on the reclaimedreclaimer of a caution to last for a period of one year. In addition, the Disciplinary Committee ordered the reclaimedreclaimer to undergo three assessment trips. Whilst there is no dispute as to the terms of the Disciplinary Committee's recommendation to the respondents, neither party lodged any document vouching the making of that recommendation, the reasons for it, or its intimation to the reclaimedreclaimer. Indeed it was a matter of agreement between the parties that the recommendation of the Disciplinary Committee was not intimated in writing to the reclaimedreclaimer. Nor is any written record available of what took place during the hearing before the Disciplinary Committee.

[11] As is clear from the terms of Clause 6.2.6 of the Code of Conduct the final stage of the disciplinary procedures involves the respondents themselves. By letter dated 29 April 2009 addressed to the reclaimedreclaimer, the respondents gave notice in terms of section 3(5)(a) of the 1987 Act of their intention to revoke the authorisation of the reclaimedreclaimer as a pilot on the River Forth, rather than limit the sanction to the imposition of a caution. The letter dated 29 April 2009 ("the notice of intention") was in the following terms:

"Pursuant to Section 3(5)(a) of the Pilot agePilotage 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 (sic)' 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 Pilot agePilotage 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 ensued between solicitors acting for the reclaimedreclaimer and the respondents ensued, including a letter dated 15 May 2009 in which the respondents intimated that a hearing in respect of the notice of intention would take place on 15 June 2009. Following the respondents intimating further documentation to them on 10 June 2009, the reclaimer's solicitors sought an adjournment of the hearing scheduled for 15 June 2009. That application was refused.

[12] On 15 June 2009 the solicitor who had been acting for the reclaimedreclaimer, attended at the offices of the respondents and presented a letter to the respondents which protested about the illegality of the hearing scheduled for that day. He took no part in the hearing. The reclaimedreclaimer subsequently raised judicial review proceedings against the respondents. He sought a variety of remedies against the respondents, including reduction of the decision of 23 March 2009 to suspend him; reduction of the notice of 29 April 2009 intimating the respondents' intention to revoke his authorisation to act as a pilot; and interdict of the respondents from suspending or revoking his authorisation as a pilot under section 5(3) of the Pilot agePilotage Act 1987. The reclaimedreclaimer also sought certain further orders, the details of which it is not necessary to elaborate upon as they were not referred to during the submissions before this court.

[13] After a first hearing, during which the Lord Ordinary heard legal submissions on behalf of both parties, he rejected those submissions made on behalf of the reclaimedreclaimer that the notice of intention did not contain adequate reasons for the declared intention to depart from the recommendation of the Disciplinary Committee and revoke the reclaimer's authorisation as a pilot. In particular, the Lord Ordinary rejected the submission that whilst the respondents' reasons in relation to the third incident were discernible, because the third incident had been the subject of full discussion in the report of the preliminary inquiry, the reasons were quite inadequate in relation to the other two incidents. They were simply referred to as events that had occurred, without any details of the circumstances. The Lord Ordinary also rejected the submission that the earlier two incidents were irrelevant to the reclaimer's competency and ought not to have been taken into account when the decision was taken to intimate the notice of intention to revoke the reclaimer's authorisation as a pilot. The Lord Ordinary held that there was no basis for interdicting the respondents from revoking the reclaimer's authorisation to act as a pilot. He accordingly refused the prayer of the petition, and repelled a number of pleas on behalf of the reclaimedreclaimer, including the 5^th and 6^th pleas in law seeking reduction of the notice of intention dated 29 April 2009.

[14] The reclaimedreclaimer now reclaims against the Lord Ordinary's decision. His grounds of appeal are in the following terms:

" 1. The Lord Ordinary erred in repelling the fifth plea-in-law for the Petitioner. The Lord Ordinary should have sustained the said plea-in-law. The notice of intention to revoke the authorisation of the Petitioner dated 29^th April 2009, referred to at article 11 of the Petition, contained no reasons as required by section 3(6) of the Pilot agePilotage Act 1987. The Lord Ordinary erred in holding that the said notice did contain sufficient reasons, save in relation to the incident occurring on 23^rd March 2009 about which there took place a disciplinary hearing on 20^th April 2009 (see articles 7 to and 9 of the Petition). The Lord Ordinary stated at paragraph [18] of his Opinion:

'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.'

The said notice should have stated why the incidents of 4^th and 14^th March were relevant to the decision as to whether to revoke the Petitioner's authorisation by stating why they might infer competence on the part of the Petitioner, and have contained reasons as to why the earlier two incidents might affect any decision as to whether the incident of 23^rd March could reasonably yield an inference of incompetence within the meaning of section 3(5)(a) of the Pilot agePilotage Act 1987 on the part of the Petitioner. It was not for the Petitioner to guess or infer from known circumstances why these matters were relevant in that sense. It does not suffice that the Petitioner was actually able to guess or infer from known circumstances why these matters were relevant in that sense. At the hearing on the Petition before the Lord Ordinary the respondents stated that the incidents of 4^th and 14^th March 2009 were background against which the incident of 23^rd March was viewed. In the report of the Preliminary IEnquiry referred to at article 7 of the Petition, they were mentioned as having taken place, and did not give rise to any charge against the petitioner, or any criticism of the Petitioner. They were mentioned at the said disciplinary hearing on 20^th April 2009, as having taken place, but were then treated as having aggravated the seriousness of the incident of 23^rd March 2009. Reference is made to Answer 9 for the respondents. At the hearing on the Petition before the Lord Ordinary the respondents stated that the incidents of 4^th and 14^th March 2009 were background against which the incident of 23^rd March was viewed.

2. The Lord Ordinary erred in repelling the sixth plea-in-law for the Petitioner for the following reasons:

(a) The Lord Ordinary should have sustained the said plea-in-law. The notice of intention to revoke the authorisation of the Petitioner dated 29^th April 2009, referred to at article 11 of the Petition, mentioned incidents dated 4^th and 14^th March 2009. These incidents were irrelevant to the decision as to whether to intimate the said notice, and should not have been taken into account, because, although mentioned as having occurred in the report of the Preliminary IEnquiry referred to at article 7 of the Petition, they did not give rise to any charge against the petitioner, or any criticism of the Petitioner. Further the procedure necessary, to enable any inference of incompetence from said incidents to be taken into account, as set out by the Code of Practice, had not been followed. The incidents could only be of relevance in the event that they inferred incompetence on the part of the Petitioner. At the hearing on the Petition before the Lord Ordinary the respondents stated that the incidents of 4^th and 14^th March 2009 were background against which the incident of 23^rd March was viewed. But they were only relevant background in the event that they allowed an inference of incompetence to be made. The incidents of 4^th and 14^th March were mentioned at the said disciplinary hearing on 20^th April 2009, as having taken place, but were then treated as having aggravated the seriousness of the incident of 23^rd March 2009. The incidents could only provide such aggravation in the event that they were treated as inferring incompetence on the part of the Petitioner. Without the procedure under the Code of Practice for each instance of incompetence being followed, it was not legitimate to take them into account. Reference is made to Answer 9 for the respondents.

(b)(i) The Lord Ordinary erred in having regard to what he described as 'the cumulative effect of the three events' (paragraph [23] of his opinion). It was not lawful to take account of the incidents of 4 and 14 March 2009. Reference is made to the preceding Grounds.

(ii) In any event, the Lord Ordinary should not have decided this matter without hearing evidence and should have allowed a proof. He erred in rejecting a submission that the Petitioner should be allowed to lead expert evidence on the issue of whether no reasonable decision maker could ever have concluded that the said incident of 23^rd March 2009, whether considered in isolation, or along with the incidents of 4^th and 14^th March 2009 (if lawful to do so), inferred incompetence within the meaning of section 3(5)(a) of the Pilot agePilotage Act 1987 on the part of the Petitioner, et sepaaratism whether any such incompetence merited revocation of the petitioner's authorisation. The question of the competence of a pilot authorised under the Pilot agePilotage Act 1987 is a matter on which the Court requires to consider expert evidence. The requisite skills and abilities of pilots, whether they were displayed in particular circumstances, whether they were not displayed or were lacking to the extent of inferring such incompetence, and whether any reasonable decision maker could infer such incompetence on the part of a pilot, are part of a body of specialised knowledge obtained through study and practice."

Submissions on behalf of the reclaimer

[15] It was argued on behalf of the reclaimedreclaimer that the Lord Ordinary had erred in law in three respects: (a) by holding that the notice of 29 April 2009 contained sufficient reasons, save in relation to the incident on 23 March 2009, for the respondents' decision to intimate an intention to revoke the reclaimer's authorisation as a pilot; (b) by failing to hold that the respondents' decision to intimate an intention to revoke the reclaimer's authorisation as a pilot had taken account of irrelevant factors; and (c) by refusing the reclaimer's challenge to the respondents' decision to intimate their intention to revoke the reclaimer's authorisation as a pilot, which was based on Wednesbury unreasonableness, without having heard expert evidence on issues referred to in Article 18(iv) and (v) of the reclaimer's written pleadings.

[16] The Court was invited to recall the Lord Ordinary's interlocutor. If it did so on the basis of Ground 1, Ground 2(a) and/or Ground 2(b)(i) of the grounds of appeal, reduction of the notice of 29 April 2009 was sought. That would involve sustaining the reclaimer's 5^th and 6^th pleas in law. If the Court was only with the reclaimedreclaimer on Ground 2(ii), the reclaimedreclaimer sought to have the petition remitted back to the Lord Ordinary for further procedure involving the hearing of expert evidence. During the course of his submissions senior counsel for the reclaimedreclaimer intimated that it was no longer necessary to insist on the remedy of interdict, in view of the respondents' undertaking not to proceed with the disciplinary proceedings against the reclaimedreclaimer pending the current court proceedings.

Submissions on behalf of the reclaimed
[17] During the course of his submissions, senior counsel for the reclaimedreclaimer stressed that the facts of the first and second incidents had never been investigated in detail. In relation to each of those incidents it was agreed that the reclaimedreclaimer had been working as a pilot at the relevant time. It was agreed that during the first incident the reclaimedreclaimer had been on the tug towing the barge that had struck a buoy and that during the second incident he had been on the vessel that struck a fender. Whilst it was accepted that there had been contact between the barge and the buoy and between the vessel and the fender, there was no agreement that there had been any fault on the part of the reclaimedreclaimer. As far as the third incident was concerned, the factual circumstances were not in dispute apart from the extent of the blameworthiness on the part of the reclaimedreclaimer.

[18] The main thrust of the submissions of senior counsel for the reclaimedreclaimer was that if the three incidents were to figure in the disciplinary proceedings against the reclaimedreclaimer, it was necessary for each incident to be investigated separately; and, in any event, necessary for each of them to be investigated promptly and thoroughly in accordance with the disciplinary procedures in the Code of Conduct. That had not occurred in respect of the first and second incidents, even although the Chief Harbour Master had received a report about eachboth incidents within 24 hours of itstheir occurrence. Neither incident had been the subject of an investigation by the Chief Harbour Master, carried out without delay, under Clause 6.2.3 of the Code of Conduct; or a preliminary inquiry, held as soon as practically possible, under Clause 6.2.4; or a disciplinary hearing under Clause 6.2.5. It was clear from the provisions of the Code of Conduct that any incident involving circumstances giving rise to allegations of incompetence or misconduct should be investigated fully and without delay. Incidents could not be "parked" on one side by the respondents and resurrected later on, when it might not be possible to investigate them fully, for example because a vessel involved had sailed. Nor could such incidents be referred to in passing, and without proper investigation, when another incident was being investigated in accordance with the provisions of the disciplinary procedures. The detailed procedures laid down in the Code of Conduct were designed to recover evidence quickly and intended to protect pilots, by ensuring that any incident that fell to be considered by the respondents, after they had received a recommendation from the Disciplinary Committee, had been fully and promptly investigated.

[19] Senior counsel for the reclaimedreclaimer stressed that neither of the first two incidents had been investigated in accordance with the disciplinary procedures. All that had happened was that they had been referred to, as incidents that had occurred, in certain of the documents prepared during the disciplinary proceedings relating to the third incident. The letter of 6 April 2009 addressed to the reclaimedreclaimer, requiring him to attend a preliminary inquiry, and the report of that preliminary inquiry were examples of documents in which such references were to be found. However, none of those references explained why the earlier two incidents were relevant to disciplinary proceedings being taken against the reclaimedreclaimer in respect of the third incident. No attempt had been made to investigate or identify how either of the earlier incidents demonstrated any blameworthiness or lack of competence on the part of the reclaimedreclaimer, let alone any blameworthiness or lack of competence which was relevant to disciplinary proceedings in respect of the third incident. Furthermore there was no written record of the Disciplinary Committee's hearing or of the making of its recommendation to the respondent. Thus when the respondents come to rely on all three incidents in their notice of intention to the reclaimedreclaimer dated 29 April 2009, the notice failed to provide the reclaimedreclaimer with details of any allegations of incompetence against him in respect of the earlier two incidents. The respondents had thus failed to provide him with details of the full reasons for their stated intention to revoke the reclaimer's authorisation, as they were required to do by sections 3(5)(a) and 3(6) of the 1987 Act and Clause 6.2.6(i) of the Code of Conduct. That meant that whilst the reclaimedreclaimer had been able to put forward written representations to the respondents, following his receipt of the letter of 29 April 2009, he had not been given notice of any allegations of incompetence or misconduct related to the first and second incidents. He was entitled to know why incompetence was being alleged against him before he submitted any response.

[20] Turning to the next chapter of his submissions, which covered Grounds 2(a) and 2(b)(i), senior counsel for the reclaimedreclaimer stressed that the Code of Practice was applicable to all disciplinary proceedings and the respondents had been obliged to comply with it. They had failed to do so. The notice of 29 April 2009 had failed to detail any criticism of the reclaimedreclaimer in respect of the first and second incident. The mere occurrence of those incidents did not of itself infer incompetence. The Lord Ordinary had erred in Ppara [18] of his opinion in accepting a submission on behalf of the respondents that the letter of 29 April 2009 should be construed as giving notice that it was the whole circumstances of the three incidents in a relatively short period of time, culminating in what was regarded as a serious incident on 23 March 2009, which the respondents regarded as grave enough evidence of incompetence to warrant revocation of the reclaimer's authorisation. Such a construction of the terms of the letter of 29 April 2009 had not been open to the Lord Ordinary.

[21] The respondents had accordingly failed to give written notice to the reclaimedreclaimer of their reasons for their intention to revoke his authorisation as a pilot, as they were required to do by the provisions of section 3(6) of the 1987 Act. Indeed the provisions of Clause 6.2.6(i) of the Code of Conduct went further and required the respondents to provide the reclaimedreclaimer with written notice of the details of their reasons for their intention to revoke the reclaimer's authorisation. Standing the respondents' failure to provide details of the reasons for their declared intention, the proceedings had been irregular and the reclaimedreclaimer had been unable to prepare his defence for the hearing scheduled to place before the respondents on 15 June 2009 (see e.g. Conway v Clyde Pilot agePilotage Authority 1951 SLT 74).

[22] Furthermore, if the occurrence of the first two incidents was not capable of inferring incompetence on the part of the reclaimedreclaimer, those incidents were irrelevant and should not have been relied on by the respondents. If the first two incidents were to be relied upon as evidence of incompetence, the procedure laid down in the Code of Practice should have been followed.

[23] The third branch of the submissions on behalf of the reclaimedreclaimer arose out of the reclaimer's contention that no competent harbour authority, acting reasonably, could have come to the view that the relevant material before them could justify a finding of incompetence or misconduct on the part of the reclaimedreclaimer. Senior counsel for the reclaimedreclaimer addressed the question of whether the Lord Ordinary should have decided the petition on the basis of legal submissions and the documents lodged, or whether he should have allowed parties a proof. During a proof, the reclaimedreclaimer could have led expert evidence on the issues of whether a reasonable decision maker could ever have concluded that the third incident on 23 March 2009, whether considered in isolation, or along with the earlier two incidents (assuming it was lawful to do so) inferred incompetence on the part of the reclaimedreclaimer, within the meaning of section 3(5)(a) of the 1987 Act, et sepaeratim whether any such incompetence had merited revocation of the reclaimer's authorisation. The submission was that no Lord Ordinary could have decided such issues without hearing evidence. The Lord Ordinary had accordingly erred in refusing the prayer of the petition without allowing the leading of evidence.

Submissions on behalf of respondents
[24] Senior counsel for the respondents commenced his submissions by highlighting the importance of cCondition 2(e) of the Conditions of Pilot agePilotage Authorisation when assessing the third incident. That condition had required the reclaimedreclaimer to inform the Duty Harbour Master immediately about the refusal of the master of the Frisian Trader to take his advice. According to senior counsel for the respondents, it had never really been disputed by, or on behalf of the reclaimedreclaimer, that contacting the Duty Harbour Master was something the reclaimedreclaimer could and should have done.

[25] Senior counsel also submitted that when an incident was reported to the Chief Harbour Master and considered by him, under Clause 6.2.3 of the Code of Conduct, he had a measure of discretion whether to treat the information before him as an allegation of incompetence or misconduct on the part of the pilot concerned. If the Chief Harbour Master did so, it was also a matter within his discretion whether it was necessary to hold a preliminary investigation under Clause 6.2.4. It was not mandatory to do so. If no preliminary investigation took place there could not be a hearing before the Disciplinary Committee.

[26] Senior counsel accepted that although the occurrence of the first and second incidents had been taken into account in the decision to suspend the reclaimedreclaimer and had been referred to in the letter of 24 March 2009 confirming the reclaimer's suspension and the report of the preliminary investigation into the third incident, the first and second incidents had not been subject to investigation. He argued, however, that when the Disciplinary Committee were investigating the third incident, Clause 6.2.5(iv) entitled the Committee to review all the facts, including the two previous incidents for which the reclaimedreclaimer may have been responsible. It was open to the Committee to take account of circumstances that had not been the subject of formal investigation at a preliminary inquiry. Although no record or report of the hearing before the Disciplinary Committee was available, the respondents understood that the reclaimedreclaimer had accepted that the third incident was serious, particularly because of the previous two incidents. It was submitted that incidents do not become irrelevant merely because, when looked at in isolation, they would not form the basis for a finding of incompetence. In assessing a pilot's incompetence it was not irrational to look at more than one incident. The procedure the respondents had followed had been completely transparent. The first and second incidents had been mentioned in the notice of intention to revoke (the letter of 29 April 2009) because it was being contended that the reclaimedreclaimer had been in some way or another responsible for each of the first and second incidents. However, it had not been necessary to treat what happened during the first and second incidents as separate charges. The respondents were entitled to consider whether the earlier incidents supported the conclusion that the reclaimedreclaimer had a history of failing to exercise proper skill, care, attention and diligence. That was relevant to whether the respondents should make a finding of incompetence and the imposition of penalty. It had not been disputed that it had been open to the Disciplinary Committee to make a finding of incompetence on the part of the reclaimedreclaimer in respect of the third incident. What remained in issue was the what the penalty which shouldto be imposed on the reclaimedreclaimer in respect of such a finding of incompetence. In determining that matter, the respondents were able to take account of the earlier incidents. It was clear from the correspondence which had passed between the solicitors acting for the reclaimedreclaimer and the respondents, between 30 April 2009 and the solicitors' decision not to attend the hearing scheduled for 15 June 2009, that it had never been suggested that either the reclaimedreclaimer or his solicitors did not understand the relevance of the first and second incidents to the respondents' decision to intimate their intention to revoke the reclaimer's authorisation as a pilot.

[27] In response to the reclaimer's grounds of appeal, senior counsel for the respondents argued that the reasons contained in the notice of intention to revoke (the letter of 29 April 2009) had been adequate. From an early stage the respondents had been perfectly open that the first and second incidents were of relevance. That had not been disputed by the reclaimedreclaimer himself at the Disciplinary Committee meeting. There was nothing in the correspondence between the reclaimer's solicitors and the respondents indicating that the former were unable to deal with the relevance of the earlier two incidents during the representations they were entitled to make. The requirement for notice of the respondents' intention to revoke the reclaimer's authorisation was to put the reclaimedreclaimer in a position to challenge the relevance of the first two incidents.

[28] Senior counsel argued that reference to the two earlier incidents was relevant to the issue that would have been before the respondents at the meeting scheduled for 15 June 2009. At that stage all the respondents would have been concerned about was the imposition of penalty. The issue of the reclaimerappellant's competence had been determined by the Disciplinary Committee, although senior counsel did not contend that would have precluded the reclaimedreclaimer from arguing at the meeting of 15 June 2009 that there had not been any incompetence or misconduct on his part.

[29] As for the submission that the Lord Ordinary should have allowed a proof, was concerned, senior counsel argued that it was not disputed that the reclaimedreclaimer had failed to report matters to the Duty Harbour Master when the master of the Frisian Trader had, on two occasions, ignored the reclaimer's advice. Such failure to inform the Duty Harbour Master had been a breach of condition 2.(e) of the reclaimer's pilotage authorisation. Standing those undisputed facts, it could not be argued that the Lord Ordinary had not been entitled to reach the decision he did on the reclaimedreclaimer's challenge to the actions of the respondentsd without allowing a proof.

Discussion

[30] Mariners who seek to work in the River Forth as pilots require to be authorised as such in terms of section 1 of the Pilot agePilotage Act 1987. Such authorisation is granted by the respondents. As we have explained, the pilotage authorisation is subject to the terms and conditions of the Condition of Pilot agePilotage Authorisation and the Code of Practice. Those terms and conditions takes account of the public interest, the interests of the pilots and those of the respondents..

[31] In addressing the issues that arise in this reclaiming motion, the starting point is the legislation and the terms of certain clauses of the Code of Conduct. As is apparent from section 3(5)(a) of the Pilot agePilotage Act 1987, a competent harbour authority may suspend or revoke an authorisation granted by it if it appears that the authorised pilot has been guilty of any incompetence or misconduct affecting his capability as a pilot. Section 3(6) of the 1987 Act provides that before suspending or revoking an authorisation under section 3(5)(a) 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.

[32] Clause 6 of the Code of Conduct lays down disciplinary procedures. They are binding on pilots and the respondents and include a procedural framework for revocation of a pilotage authorisation. In our opinion, the details of those procedures are of importance. Clause 6.2 of the Code of Conduct sets out the procedures that apply in all cases of incompetence or misconduct, except those where alternatives are specifically stated. The procedure involves the various stages that have been discussed earlier in this Opinion. They afford protection to pilots by requiring that allegations of incompetence and misconduct are investigated through different stages, and by different individuals, before any decision can be taken in the name of the respondents to suspend or revoke the authorisation of a pilot on the ground of incompetence or misconduct. .

[33] The Code of Conduct does not require that the full procedures need be gone through every time an allegation of incompetence is raised. For example, the Chief Harbour Master having considered an allegation of incompetence, need not take matters any further that Clause 6.2.3. In our opinion, however, before an incident can be relied on by the respondents as supporting a finding of incompetence and forming a factual basis, in whole or in part, for revoking the authorisation of a pilot, the whole procedures requires to be followed through. In our opinion, that is necessary before the respondents are in a position to determine two matters which are for them to decide - (a) that the pilot concerned has been guilty of incompetence, affecting his capability as a pilot, and (b) that such finding of incompetence warrants revocation of the authorisation of the pilot. Whatever the terms of the Disciplinary Committee's recommendation, the final decisions on those matters are not for the Disciplinary Committee. They are for the respondents themselves. It follows, therefore, that before an allegation of incompetence or misconduct can form the basis for revocation of an authorisation, it must be investigated in accordance with the rules of natural justice by the preliminary inquiry, the Disciplinary Committee and, if a formal hearing is sought under the provisions of Clause 6.2.6, by the two Executive Directors of the respondents conducting that formal hearing. In our opinion, the respondents cannot base the revocation of a pilot's authorisation, in whole of in part, on allegations of incompetence (or of misconduct), which have not been investigated in accordance with the disciplinary procedures laid down in Clauses 6.2.3, 6.2.4 and 6.2.5. Nor can they do so on the mere fact that a pilot has been involved in an incident which has not been investigated at all. Standing the structure of the Code of Conduct, the investigation of an incident to determine whether it might form a basis for a finding of incompetence against a pilot cannot commence part way through the disciplinary procedures provided for by Clause 6. 1.2. Having considered the papers placed before us, it would appear that was what the respondents intended to do when they drafted and sent to the reclaimedreclaimer the notice of intention to revoke his authorisation.

[34] The notice of intention to revoke sent to the reclaimedreclaimer required to provide the reclaimedreclaimer with "the reasons for which" the respondents proposed to act (Section 1(6) of the 1987 Act) or, as Clause 6.2.6 (i) provides, the "details of the reasons" for the respondents' intention. In our opinion, the terms of the notice of intention are far from clear as to the reasons for the respondents' intention. Having regard to the history of events between first incident on 4 March 2009 and the date when the notice of intention to revoke was sent to the reclaimedreclaimer, 29 April 2009, there is real doubt as to the reasons for the respondent's' stated intention to revoke the reclaimer's authorisation as a pilot on the River Forth. The notice, which is signed by the respondents' Chief Harbour Master, does not state in clear terms what view the respondents are taking as to incompetence on the part of the reclaimedreclaimer. The notice does not provide any details of the nature of such incompetence or of the date and circumstances of the acts and omissions on the part of the reclaimedreclaimer, on which a view as to incompetence is being based. In our opinion, the notice of intention failed to satisfy the requirements of a notice in the name of a decision makers, as set out in the opinion of Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 348, to which the Lord Ordinary refers in para [17] of his own Opinion:

"[T.... (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 cCourt 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."

[35] Even if the notice of intention had been factually accurate in stating that there had been a recent investigation and hearing into the reclaimer's competence resulting from the three incidents in which the reclaimedreclaimer had been the authorised pilot, no details are given in relation to each incident as to the respects in which the reclaimedreclaimer had displayed incompetence. In our opinion, the Lord Ordinary was in error in construing the notice of intention as setting out clearly that it was the whole circumstances of all three incidents on which the respondents were basing their intention (para [18] of his Opinion). The whole circumstances of the first and second incidents and the reclaimer's involvement in them had not been investigated. In our opinion the cumulative effect of three incidents within a short period, to which the Lord Ordinary refers, could only have had a bearing if the first and second incidents had been properly investigated in accordance with the Code of Conduct and such investigation had disclosed acts or omissions on the part of the reclaimedreclaimer capable of supporting a finding of incompetence affecting his capability as a pilot. The report of the preliminary investigation into the third incident, whilst it mentions the occurrence of the first and second incidents, provides no assistance in that regard.

[36] It is clear that an allegation of incompetence on the part of the reclaimedreclaimer, which was based on the third incident, was considered by the Chief Harbour Master (under CSlauseection 6.2.3), a preliminary inquiry (under ClauseSection 6.2.4) and a Disciplinary Hearing (Clause Section 6.2.5). Despite the absence of any documentary records of what occurred at the Disciplinary Hearing, it may reasonablye be to assumed that the Disciplinary Committee's assessment of the events involved in the third incident was taken into account before the Committee made its recommendation to the respondents. In our opinion, however, it is also quite clear from the papers available that neither the preliminary inquiry into the third incident nor the subsequent Disciplinary Hearing into that incident, were intended to investigate (or did investigate) whether the reclaimedreclaimer had been guilty of incompetence during either or both of the first or second incidents.

[37] In these circumstances we are persuaded that the first chapter of the submissions of senior counsel for the reclaimedreclaimer is well founded. The notice of intention to revoke is invalid because it does not contain adequate details of the reasons for the respondents' intention, as required by the 1987 Act and the Code of Conduct. The respondents were obliged to comply with the 1987 Act and the terms and conditions applicable to their authorisation of the reclaimedreclaimer as a pilot.

[38] On reading the notice of intention to revoke, it appears quite probable that the respondents, in forming their intention to revoke the reclaimer's authorisation as a pilot, relied on the occurrence of one or both of the earlier incidents. In our opinion they erred in doing so. If one assumes that the notice of intention to revoke followed on a full investigation into the circumstances of the third incident, which had complied with the provisions of the Code of Conduct up until the Disciplinary Hearing made its recommendation, the mere occurrence of either or both of the earlier incidents should not have played any part in the respondents forming the intention they notified. In these circumstances the respondents appear to have taken into account irrelevant factors. As we have discussed, no allegation of incompetence on the part of the reclaimedreclaimer in relation to either of these incidents had been investigated in accordance with the disciplinary procedures. For that reason, the earlier incidents should have been left out of account. In these circumstances we have reached the conclusion that the second chapter of the submissions on the part of the reclaimedreclaimer is also well founded.

[39] Standing the conclusions we have reached, we shall allow the reclaiming motion for review, recall the Lord Ordinary's interlocutor, sustain the 5^th and 6^th pleas in law on behalf of the reclaimedreclaimer and grant decree reducing the notice of intention to revoke the reclaimer's authorisation as a pilot dated 29 April 2009. In these circumstances, we do not consider it necessary, or indeed appropriate, to express any views on the third chapter of the submissions on behalf of the reclaimedreclaimer. That is because the practical effect of our decision will be to return to the parties the issues outstanding between them as to the reclaimer's authorisation as a pilot. We will reserve all questions of expenses.