FIRT DIVISION, INNER HOUSE, COURT OF SESSION

Lord President Lady Smith Lord Wheatley

[2011] CSIH 58 XA48/10, XA49/10 and XA50/10 OPINION OF THE COURT delivered by THE LORD PRESIDENT in Appeals by (1) STUART DOCHERTY Pursuer and Appellant; against THE SCOTTISH MINISTERS Defenders and Respondents: and (2) JAMES PHILBIN Pursuer and Appellant; against THE SCOTTISH MINISTERS Defenders and Respondents: and (3) PAUL LOGAN Pursuer and Appellant; against THE SCOTTISH MINISTERS Defenders and Respondents: _______

Act: Collins, Pirie; Balfour + Manson LLP (for Taylor & Kelly)

Alt: Drummond; Scottish Government Legal Directorate

2 September 2011

Introduction

[1] The appellants are all former prisoners who, for part at least of their sentences, were held at HMP Barlinnie, Glasgow. They have each raised an action under ordinary cause procedure in Glasgow Sheriff Court, claiming that the conditions in which they were held within that prison during their detention were incompatible with their rights under Articles 3 and 8 of the European Convention on Human Rights, and that the circumstances of their detention were accordingly ultra vires of the respondents under section 57(2) of the Scotland Act 1998.

[2] The last date on which the appellants were detained in the conditions complained of was 17 July 2000 in respect of Stuart Docherty, 3 February 2002 in respect of James Philbin, and 15 December 1999 in respect of Paul Logan. Their actions were raised respectively in July 2006, August 2007 and August 2006. The remedy sought in respect of each appellant was initially limited to an award of damages as just satisfaction for the infringement. It was accepted by all parties that the statutory basis of that claim was section 100(1) and (3) of the Scotland Act 1998. In February 2009 minutes of amendment in respect of each of the appellants were allowed by the sheriff, which sought to add a new crave in each action for a declarator that the respective appellant's Convention rights had been breached. Amendment to that effect was allowed in April 2009. On 17 February 2010, following a diet of debate, the sheriff dismissed each of the appellants' crave for damages as having prescribed in terms of section 6 of, and Schedule 1 paragraph 1(d) to, the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act"), but allowed parties a proof as regards the declarators sought.

[3] Against that decision the appellants now appeal. The respondents have lodged a cross appeal, claiming that the sheriff ought to have refused each crave for declarator as unnecessary and inappropriate and granted decrees of absolvitor, standing their acknowledgement, as set out further below, that the appellants' rights under Article 3 of the Convention had been breached.

The respondents' acknowledgement of breaches of Article 3 of the Convention

[4] On 15 September 2006 the Scottish Prison Service issued a general public statement which acknowledged that, where two prisoners had been detained in a relatively small cell for a significant part of the day, and had to use a chamber pot or similar arrangement to perform bodily functions in one another's presence in that shared cell ("doubled up slopping out conditions"), their Article 3 Convention rights had been breached and they would, in general, be entitled to payment in satisfaction of that breach. The appellants' pleadings relied on, but were not restricted to, the fact that they had been detained in such conditions. Nevertheless, before the sheriff the respondents' pleadings denied that the appellants' conditions of detention were, at any time, such as to violate their Article 3 or Article 8 Convention rights. On 24 May 2010, following the debate before the sheriff, the respondents wrote to each of the appellants acknowledging that their Article 3 Convention rights had been violated when they were detained in doubled up slopping out conditions. However, they maintained that their right to damages had prescribed in terms of the 1973 Act. Prior to the hearing in the present appeals, the respondents' pleadings in each case were amended to reflect this position.

The legislation
The Scotland Act 1998 and Human Rights Act 1998

[5] At the time at which the present actions were raised, section 100 of the Scotland Act 1998 was in the following terms:

"(1) This Act does not enable a person-

(a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or

(b) to rely on any of the Convention rights in any such proceedings,

unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights.

(2) Subsection (1) does not apply to the Lord Advocate, the Advocate General, the Attorney General or the Attorney General for Northern Ireland.

(3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied.

(4) In this section "act" means-

(a) making any legislation,

(b) any other act or failure to act, if it is the act or failure of a member of the Scottish Executive"

The section has since been amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, which, read shortly, inserted a new time limit of one year in which to bring proceedings, subject to exceptions based on consideration of equity. That time limit only applies to actions raised after 2 November 2009. Section 57(2) of the Act, in so far as material, provides:

"A member of the Scottish Executive has no power ... to do any ... act, so far as the ... act is incompatible with any of the Convention rights ...".

[6] Section 8(3) and (4) of the Human Rights Act provides:

"(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including-

(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b) the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4) In determining-

(a) whether to award damages, or

(b) the amount of an award,

the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention."

The Presciption and Limitation (Scotland) Act 1973

[7] Section 6(1) and (2) of the 1973 Act provides:

"(1) If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of five years-

(a) without any relevant claim having been made in relation to the obligation, and

(b) without the subsistence of the obligation having been relevantly acknowledged,

then as from the expiration of that period the obligation shall be extinguished:

...

(2) Schedule 1 to this Act shall have effect for defining the obligations to which this section applies."

Schedule 1, paragraph 1 of the 1973 Act provides, inter alia:

"Subject to paragraph 2 below, section 6 of this Act applies-

...

(d) to any obligation arising from liability (whether arising from any enactment or from any rule of law) to make reparation;

...".

Section 11(1) and (2) of the 1973 Act provides:

"(1) Subject to subsections (2) and (3) below, any obligation (whether arising from any enactment, or from any rule of law or from, or by reason of any breach of, a contract or promise) to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 of this Act as having become enforceable on the date when the loss, injury or damage occurred.

(2) Where as a result of a continuing act, neglect or default loss, injury or damage has occurred before the cessation of the act, neglect or default the loss, injury or damage shall be deemed for the purposes of subsection (1) above to have occurred on the date when the act, neglect or default ceased"

Competency of the actions
Submissions on behalf of the respondents

[8] As a preliminary point, Ms Drummond invited us to dismiss the present actions as incompetent. Relying on Ruddy v Chief Constable of Strathclyde 2011 SLT 387, she submitted that any proceedings in respect of alleged breaches of Convention rights ought to be brought by a petition for judicial review and not by ordinary action (per Lord Clarke at para [14]). The true nature and substance of the present actions was an attempt to show that the respondents had acted ultra vires under section 57(2) of the Scotland Act. That was a matter for the supervisory jurisdiction, exclusive to the Court of Session (West v Secretary of State for Scotland 1992 SC 385, per Lord President Hope at pages 412-413; Brown v Hamilton District Council 1983 SC (HL) 1, per Lord Fraser of Tullybelton at pages 41-45). While, prima facie, the appellants sought to challenge the acts and omissions, as opposed to decisions, of the Scottish Ministers, nothing turned on that distinction: the continued detention of the pursuers in the conditions complained of had involved implicit decisions. Nor was there authority that the supervisory jurisdiction was inappropriate where, as here, the alleged ultra vires act had since ceased.

[9] Ms Drummond referred to other cases in which it had been held incompetent to proceed other than by a petition for judicial review (McDonald v Secretary of State for Scotland (No.2) 1996 SC 113; Sidey Ltd v Clackmannanshire Council 2010 SLT 607). She submitted that where the substance of the complaint fell within the supervisory jurisdiction, it could not be brought in the sheriff court even if the appropriate remedy would otherwise be available (Clyde & Edwards: Judicial Review, at paras 8.15-8.16). The present were not cases where an issue of judicial review arose collaterally in an ordinary action; the damages sought were directly consequential to the main claim that the Ministers had acted ultra vires. It was the Scotland Act itself which had enabled the pursuers to bring a claim for damages. That could be described as a "public law" remedy (R v HM Advocate 2003 SC (PC) 21, per Lord Hope of Craighead at para [38] and Lord Rodger of Earlsferry at paras [17] - [18]), which supported the contention that it involved the supervisory jurisdiction of the Court of Session.

[10] While it was regrettable that the competency point had not been raised until this late stage, it was not accurate to suggest that the Scottish Ministers had abandoned any reliance on such a plea following the decision in Somerville v Scottish Ministers 2008 SC (HL) 45. Rather the illustrative cases in which it had been raised prior to that decision had since been settled. The failure to raise the point in other cases (cf Thomson v Scottish Ministers [2011] CSOH 90) was not a bar to its being raised in the present actions. It was a matter of fundamental competency, and thus pars judicis.

[11] If we were not minded to dismiss the action, Ms Drummond's esto position was that the case be adjourned for further enquiry as regards the legal aid application made in the Ruddy case in respect of a proposed appeal to the Supreme Court.

Submissions on behalf of the appellants

[12] Mr Collins conceded that Ruddy was authority for the proposition that any claim for damages for an alleged violation of Convention rights, whether raised under the Scotland Act or the Human Rights Act, had to be brought by judicial review. However, he submitted that that proposition was not correct as a matter of law. The appellants had been correct to proceed by way of ordinary action. Their actions had, from the outset, been truly about damages as a form of just satisfaction for alleged breaches of Convention rights. They related to periods and conditions of detention which had long since ceased and did not involve an attempt to reduce or strike down decisions of a public authority (cf Brown v Hamilton District Council; McDonald v Secretary of State for Scotland). Similarly, no orders were sought to regulate the respondents' present conduct, or to ensure that they acted in a Convention-compliant manner (cf Napier v Scottish Ministers 2005 1 SC 307). One could not simply determine the appropriate forum by reference to the fact that the actions involved alleged ultra vires acts as a constituent part of the claims. Such matters might competently arise as a collateral matter in an ordinary action for damages (Clyde & Edwards: Judicial Review, paragraphs 8.14-8.16).

[13] While accepting that the decisions of one Division of the Inner House were generally considered binding on another Division of equal number, Mr Collins submitted that that was simply a matter of practice. In exceptional circumstances a Division might refuse to follow such a precedent (Smith: The Doctrines of Judicial Precedent in Scots Law at pages 27-28; cf Stair Memorial Encyclopaedia, Vol.22, paragraphs 292-294, particularly paragraph 293 at footnote 8). He sought to identify such exceptional circumstances in relation to the present actions. He submitted that the issue of competency now raised was not new. It had been pled in a number of cases, even before the decision in Ruddy, only to be abandoned by the Scottish Ministers. In Davidson v The Scottish Ministers 2002 SC 205, it had been suggested in obiter dicta that an ordinary action was the correct procedure to adopt (per Lord Marnoch at paragraphs [3]-[5] and Lord Hardie at paragraph [1]). Since the decision in Napier v The Scottish Ministers there had been a large number of claims by former and existing prisoners, many of which had been brought in the Sheriff Court by way of ordinary action. The present cases had been sisted to await the decision in Somerville v The Scottish Ministers 2008 SC (HL) 45, which concerned the discrete issue of time bar. There had been nothing to prevent the point now relied on being raised at a much earlier stage. Moreover, in Thomson v The Scottish Ministers counsel for the Ministers had expressly disavowed any reliance on it (at paragraph [11]).

[14] One had also to take into account a number of exceptional circumstances in Ruddy: none of the parties had been willing to raise this point; nor had they had adequate time to prepare or present full argument on it; the Court's Opinion suggested that it had considered matters upon which it had not been addressed by the parties (per Lord Clarke at para [12]); and no further argument had been made at the By Order hearing. Moreover, the Court's reasoning was unclear. At first instance the sheriff had not dismissed the pursuer's action for damages for a breach of Article 3 in relation to the allegation of assault, or the associated common law claim. That aspect of his decision had not been appealed, yet the Court had dismissed the whole action. The Opinion did not distinguish claims raised under the Scotland Act from those raised under the Human Rights Act, or ordinary actions raised in the Sheriff Court from those raised in the Court of Session. Thus, even if a claim did not involve a matter of public importance, or the damages claimed were at the Small Claims level, a petition for judicial review was, according to that approach, required. The resultant cost of litigation would often be wholly disproportionate to the issues and value of the claim. For those ineligible for legal aid such costs would be prohibitive, arguably denying a victim an appropriate remedy. Moreover, it raised the possibility of multiple actions, with pursuers having to raise judicial review proceedings before raising an action for damages in the Sheriff Court.

[15] The decision in Ruddy was also inconsistent with the terms of the Human Rights Act, which spoke only of the possibility of any action being raised by way of application for judicial review (section 7(3)) and provided for proceedings being raised in the "appropriate court or tribunal", defined as "any civil court or tribunal which has jurisdiction to grant the remedy sought" (sections 7(1) and (2); Human Rights Act 1998 (Jurisdiction) (Scotland) Rules 2000, Rule 3). In the present actions that would include the Sheriff Court. If the appellants could competently have raised the actions in the Sheriff Court under the Human Rights Act, it was not clear why they could not have done so under section 100 of the Scotland Act. They ought to have had a choice as to the statutory basis of their claim (Somerville v The Scottish Ministers, per Lord Hope at paragraph 31 and Lord Rodger at paragraph 108). The decision in R v HM Advocate did not assist the respondents. If anything, the language it employed was consonant with an ordinary action for damages (see Lord Rodger at paragraph 18).

[16] The Court in Ruddy had placed undue reliance on Cocks v Thanet District Council [1983] 2 AC 286 as regards the rule of exclusivity of jurisdiction for judicial review. One had to take account of the distinction drawn between public and private law as the test for the judicial review proceedings in England, which did not apply in Scotland (West v Secretary of State for Scotland, per Lord President Hope at page 413). In any event, subsequent authorities suggested that the exclusivity rule in England did not require that all damages claims for breach of Convention rights had to be brought by judicial review (Clayton & Tomlinson: The Law of Human Rights (2^nd ed.) at paragraph 22.61). The touchstone of English procedure was flexibility, not the strict demarcation of proceedings. Provision was made for cases to be transferred between procedures where necessary (CPR 54.20). The exclusivity rule was subject to exceptions, the overriding principle being to prevent the abuse of process (Steed v Home Secretary [2000] 1 WLR 1169, per Lord Slynn of Hadley at pages 1173-1175; Supperstone, Goudie and Walker: Judicial Review (4^th ed.) at paragraphs 5.11.1 - 5.11.5; De Smith's Judicial Review (6^th ed.) at paragraphs 16-011 and 19-006-19.010). In England a public law issue could arise as part of a private action for damages which involved no quashing order (BA and Others v Home Office [2011] EWHC 1446 (QB), per HH Judge Anthony Thornton, QC at paragraphs 10-12 and 55-58).

[17] In all of these exceptional circumstances, Mr Collins submitted that the decision in Ruddy ought not to be followed by this Court. He invited us to refuse the invitation to dismiss these actions as incompetent.

Reply on behalf of the respondents

[18] Ms Drummond submitted that the procedure adopted by litigants had been inconsistent. It was not correct that ordinary actions had been raised for historical cases, with those seeking coercive orders being brought by judicial review. In any event, the present actions, as now pled, were truly about obtaining declarators that Scottish Ministers had acted beyond their powers, upon which declarators the claims for damages were consequential. The correct procedure was therefore judicial review. Section 7 of the Human Rights Act did not assist. The Sheriff Court did not have "jurisdiction" to grant the remedy sought where the action really involved an appeal to the supervisory jurisdiction of the Court of Session. In Scotland there remained a clear demarcation of the judicial review procedure (Rule 58.3 of the Rules of the Court of Session). This Court should be slow to follow the approach to procedure adopted in England and Wales. The decision in Ruddy was binding on this Court. There was no real authority for the assertion that, in exceptional circumstances, one Division might decline to follow a decision of another. The actions should be dismissed.

Discussion of the competency issue
[19] In Ruddy the pursuer sued two defenders, the Chief Constable and the Lord Advocate. Against the first defender alone he sought damages (crave (1)) on two bases - vicariously for assault at common law and for breach of Article 3 of the Convention. He further sued both defenders, apparently severally, for breaches of Article 3 in respect of alleged failures in the carrying out of an investigation into his complaint about police conduct. A separate sum of damages (crave (2)) was sought against both defenders in respect of the latter breaches. All this was done in a single action. The Extra Division described this as an "omnibus" approach. In these circumstances it dismissed the whole action as incompetent on the basis that the proceedings sought to address three distinct issues, distinguished in fact and law, against two separate defenders.

[20] That was sufficient for disposal of the case. However at para [14] the Division goes on to say:

"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."

This appears to be a reference back to para [6] where the Division analyses certain of the pursuer's averments as involving an attempt to have reviewed (their emphasis) the investigatory proceedings in respect of the complaint. At para [14] the Division continues:

"... 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."

It is not altogether clear whether this is a separate ground of judgment for disposal of the action. It would be surprising if it were since, if the difficulty was solely the administrative law basis for crave (2), the appropriate disposal would have been to dismiss that crave and to allow the action to proceed on crave (1). The reference to the claims "unshackled from the claims for damages for assault" seems to point to these observations being concerned only with the claims in relation to the complaints procedure. The reference to "the claims of the appellant involving human rights questions" must, read in context, be to these claims - against both defenders. The passage, when fairly construed, accordingly does not involve the proposition that any claim whatsoever against a public authority alleging an infringement of a Convention right must be brought in Scotland by judicial review. Such a process would be quite inept for certain proceedings - for example, proceedings simply for damages for an infringement of Article 3 by reason of isolated physical torture by a public official for whose actings the public authority was vicariously responsible. Such proceedings could, and should, be initiated by action. They might be so initiated in the sheriff court.

[21] Likewise the present actions were and are, in our view, competent. Each action was initiated with a single substantive crave - for damages. The crave for a declarator was added later, by amendment. But we are not persuaded that that addition makes any difference. It does not involve the invocation of the supervisory jurisdiction.

[22] Ms Drummond relied on the circumstance that the actions were founded on the Scotland Act 1998 and proceeded on the basis that the Scottish Ministers had acted "beyond their powers" (as envisaged in Somerville v Scottish Ministers). That is so, but there is a danger of confusing an allegation that Scottish Ministers have gone beyond their powers by conduct in infringement of the Convention and the quite separate jurisdictional question as to whether, in terms of West v Secretary of State for Scotland at pages 412-3, a decision "taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted ..." is one amenable, and only amenable, to judicial review. In McDonald v Secretary of State for Scotland (No.2) Lord Clyde observed (at pages 116-7) that the issue of jurisdiction or competency fell to be answered "essentially by identifying the issue which is raised in the case" and that the final answer was to be found "in a proper understanding of what the action is truly about" (see also Clyde and Edwards: Judicial Review paras.8.14-15).

[23] The present proceedings are truly about whether the appellants' rights under Article 3 have been infringed by the custodial arrangements the Scottish Ministers made for them (an infringement they now concede) and whether, by reason of that infringement, the appellants should, by way of just satisfaction, be awarded damages. Such proceedings may, in our opinion, be brought by action. Whether there was (or was not) at some point of time an identifiable policy decision by the Scottish Ministers that the appellants and those like them should be held, or continue to be held, in conditions which were not Convention-compliant is not, in the circumstances of these cases, in our view, critical. No party has put in issue the validity of any such decision (cf McDonald v Secretary of State for Scotland). We were accordingly not prepared to dismiss the actions as incompetent and announced that decision in the course of the hearing. We found it unnecessary, and inappropriate, to await the outcome of any further proceedings in Ruddy.

[24] It will be plain from this analysis that we did not accept Mr Collins' opening concession that Ruddy determined that any claim for breach of a Convention right required to be brought by judicial review. It was accordingly unnecessary to consider whether, and if so, in what circumstances a Division of the Inner House might depart from an earlier decision of another Division.

[25] We were referred by Mr Collins to a number of English authorities where consideration was given to the form of proceedings when Convention rights were in issue. We find it unnecessary to discuss these, other than to note that English practice has developed significantly since Cocks v Thanet District Council, on which the Extra Division relied.

Appeal on the application of the shorter negative prescription to the appellants' claims
Submissions on behalf of the appellants

[26] Mr Collins submitted that the shorter negative prescriptive period in section 6 of the 1973 Act did not apply to a claim under section 100 of the Scotland Act. One had to consider whether, reading the statute as a whole and in its historical context, particularly Parliament's understanding of an obligation to make reparation as at 1973, such a claim was of the same species or genus as those to which Schedule 1, paragraph 1(d) was directed. If so, he accepted that one could give effect to Parliament's intention despite the particular claims not having been in contemplation in enacting the 1973 Act ((R) Quintavalle v Health Secretary [2003] 2 AC 687, per Lord Bingham of Cornhill at paragraphs 6 - 10). However, an expansive interpretation in the present case was inappropriate for a number of reasons. The provisions were restrictive, extinguishing obligations which were otherwise enforceable. Where Parliament intended that the prescriptive period should apply to a new statutory obligation it had amended the Schedule. Alternatively, it had imposed a time limit within the principal statute as it had done in section 7(5) of the Human Rights Act and, by recent amendment, in section 100(3B) of the Scotland Act. If it had intended that section 6 of the 1973 Act should apply to claims made under the Scotland Act, Parliament would have amended Schedule 1 accordingly (MRS Hamilton v Keeper of the Registers of Scotland (No.1) 1999 SLT 829, per Lord Hamilton at page 837).

[27] Moreover, Schedule 1 was very specific as regards the rights which did or did not prescribe under section 6, employing technical legal terms. Properly understood, the term reparation in paragraph 1(d) was used to denote a pecuniary remedy afforded by the law of Scotland for loss caused by prior civil delictual wrong, the essential purpose of which was restitution (reparatio injuriarum). It was broadly equivalent to the English term "tort" and neither concerned a remedy for breach of contract nor was it a general term used to describe a remedy to make good any civil wrong (Miller v Glasgow District Council 1988 SC 440, per Lord Grieve at pages 442-445; Walker: Prescription and Limitation of Actions, 6^th ed., pages 62-63; Johnston: Prescription and Limitation, paragraphs 6.23 to 6.25). The background material to the 1973 Act supported that assertion (Report on Reform of the Law Relating to Prescription and Limitation of Actions, Scot. Law Com. No.15, 1970 at paragraphs 94-97 and 164). The enforceable date for the obligation was set by reference to the date on which the "loss, injury or damage" occurred due to "an act, neglect or default" (section 11 of the 1973 Act). Again, that suggested that one required a loss, a wrong and a causal connection between the two. Without a compensatable loss, there could be no liability for reparation (Watkins v Home Secretary [2006] 2 AC 395, per Lord Hope at paragraph 31). However, not all losses were compensatable by reparation (AXA General Insurance Ltd, Petitioners 2010 SLT 179, per Lord Emslie at paras [5]-[8]). Therefore, where, as here, a liability to pay damages arose in respect of a matter falling short of a loss compensatable at common law it would not truly involve a liability to make reparation.

[28] Damages under section 100 of the Scotland Act were of a different species to reparation. They were a remedy in "public law" (R v HM Advocate, per Lord Hope at paragraph [38]; cf Davidson v Scottish Ministers 2006 SC (HL) 41, per Lord Rodger, para [76]-[77]). They provided a discretionary remedy not for acts which were wrongful, but for acts which were invalid or ultra vires, the remedy being limited to what was required for "just satisfaction" (Somerville v Scottish Ministers, per Lord Hope at paras [2]-[4] and [13]-[19] and Lord Rodger at paras [126]-[127]; cf Lord Scott of Foscote at paras [77]-[78] and Lord Mance at para [176]). Public law remedies played a distinctly different role from awards made under private law proceedings, the former being primarily directed to ending violations of human rights abuses (Anufrijeva v London Borough of Southwark [2004] 1 QB 1124, per Lord Wolffe CJ at paras 49-50, 52-55 and 74; R (Greenfield) v Home Secretary [2005] 1 WLR 673, per Lord Bingham of Cornhill at paras 3, 5, 6, 8, 9, 10 and 18-19).

[29] A critical feature of damages under the Scotland Act was their discretionary nature. While the respondents might be obliged not to act incompatibly with the appellants' Convention rights under section 57(2) of the Scotland Act, no obligation to pay damages under section 100 of that Act arose should they fail to do so unless and until such damages were awarded. The word "obligation" in Schedule 1, paragraph 1(d) of the 1973 Act had to be given its ordinary meaning. It implied mutual rights and duties, requiring the respondents to be bound to make payment to the appellants (section 15(2) of the 1973 Act; Johnston: Prescription and Limitation para 2.03; Walker: Prescription and Limitation of Actions 6^th ed., at page 58). That legal relationship was not present in these actions.

[30] As the Scotland Act was a constitutional instrument, an analogy could be drawn with the principles of interpretation for constitutions of former colonies developed by the Privy Council (Somerville v Scottish Ministers 2007 SC 140, per Lord President Hamilton at paras [47]-[49]). In particular, an analogy could be drawn with damages awarded for breaches of constitutional rights (Beatson et al, Human Rights: Judicial Protection in the United Kingdom at paragraphs 7.169-7.172). Such damages were vindicatory rather than compensatory (Att-Gen of Trinidad and Tobago v Ramanoop [2006] 1 AC 328, per Lord Nicholls of Birkenhead at paras 18-19). An analogy with common law damages was therefore not apt (R (WL (Congo)) v Home Secretary [2011] 2 WLR 671, per Lord Dyson at paragraphs 97-101). Similarly, in awarding Convention damages United Kingdom courts had to take into account the case law, under Article 41, of the European Court of Human Rights (Human Rights Act, section 8(3) and (4)), which involved considerations of equity and a completely different understanding of the term "restitution" (Varnava v Turkey (Application 16064/90), unreported, 18 September 2009 at para 224; Arvanitaki-Roboti v Greece (Application 27278/03), unreported, 15 February 2008 at paras 27-36).

[31] The sheriff had therefore erred in law. The authorities did not support his wider interpretation of the term "reparation". He had conflated the Ministers' obligation under section 57 of the Scotland Act not to breach Convention rights with an obligation to pay damages under section 100 of that Act. Majrowski v Guy's & St Thomas's NHS Trust [2007] 1 AC 224 did not support his reasoning. It involved a statutory tort created by the Protection from Harassment Act 1997 and an entitlement to damages; the enabling words "may be awarded" in that statute simply extended the possible heads of claim (per Lord Nicholls at paras 20-22). In Scotland, were it not for the specific provision made at section 10 of the 1997 act, such a remedy would have been subject to the shorter negative prescriptive period by virtue of Schedule 1, paragraph 1(d) of the 1967 Act (per Lord Hope at paragraph 48). Unlike the present case, it was not concerned with damages which were discretionary.

[32] Mr Collins moved that the appeal be allowed and the case remitted to the sheriff to proceed as accords.

Submissions on behalf of the respondents

[33] Ms Drummond did not take issue with Mr Collins' analysis of R (Quintavalle) v Health Secretary. However, she submitted that damages under section 100 of the Scotland Act could be considered as being of the same species as those exigible under an obligation arising from a liability to make reparation under Schedule 1, paragraph 1(d) of the 1973 Act. Part of the background to the statutory provisions on prescription and limitation was a recognition of the public interest in legal certainty and in public bodies being able to arrange their affairs with confidence that there were no pending claims against them (Scottish Law Commission Discussion Paper on Personal Injury Actions: Limitation and Prescribed Claims, Discussion Paper No. 132 at paras 1.24-1.29). She also made reference to the six month time limit for applications to the European Court of Human Rights (ECHR, Article 35(1); Clayton & Tomlinson: The Law of Human Rights, para 23.71), the one year time limit for claims brought under the Human Rights Act (section 7(5)), and the three year limitation for claims brought in delict for personal injury (1973 Act, section 17). She submitted that one had to consider the legislative scheme against that background.

[34] The respondents' position was that a claim for damages as just satisfaction under the Scotland Act provided a remedy for an ultra vires, and so unlawful, act; it was an independent cause of action arising under an enactment leading to a liability to pay damages (Somerville v Scottish Ministers (HL), per Lord Rodger at para [131], cf Lord Scott at para [78]; R v HM Advocate, per Lord Rodger, para [18]). That was consistent with the respondents' construction of the word "reparation". Schedule 1, paragraph 1(d) of the 1973 Act was broadly framed. No distinction was drawn between public law or private law claims, or between delictual and non-delictual claims. Thus, "reparation" was used to denote damages for a wrongful act, albeit not every statutory claim would fall within its ambit (Hobday v Kirkpatrick's Trustees 1985 SLT 197, per Lord Cowie at page 199; Holt v City of Dundee District Council 1990 SLT (Lands Tr) 30 at page 32; MRS Hamilton v Keeper of the Registers of Scotland, per Lord Hamilton at pages 836-837). In so far as Miller v Glasgow District Council was authority for that proposition, it was relied on by the respondents (see Lord Grieve at page 444). However, it was of note that the court refused to consider section 11 of the 1973 Act, which employed the term "reparation" in a very broad sense (ibid at page 442).

[35] It was accepted that damages would not always be awarded under the Scotland Act. However, when they were awarded, one of their purposes was to provide restitutio in integrum and they shared many common features with an award of damages in tort (The Law Commission and Scottish Law Commission Report on Damages under the Human Rights Act 1998 (Law.Com. No 266, Scot Law Com. No 180 at paras 3.19 and 4.12 - 4.15). Just satisfaction damages were, broadly speaking, awarded for damage which a victim had suffered (R (Greenfield) v Home Secretary, per Lord Bingham at paragraph 10; Kingsley v United Kingdom (2002) 35 EHRR 10, at para 40). A distinction could be drawn between the purpose and nature of such damages: they might be vindicatory, but that was not to say that they did not provide restitution for a legal wrong. That was not the same as a separate vindicatory award of damages (R (WL (Congo)) v Home Secretary, per Lord Dyson, at para 100 and Lord Collins of Mapesbury at para 236). The jurisprudence of the European Court on Human Rights, which this court had to take into account, suggested that damages could be awarded to compensate for stress and anxiety, factors averred in the present case. The 1973 Act had to be interpreted in light of this new form of damages.

[36] While discretionary, where damages under the Scotland Act were awarded, an obligation to pay them arose. The term "obligation" was not defined in the 1973 Act, but, as indicated, was employed in very broad terms in section 11(1). Moreover, section 15(2) made clear that it was to be understood as also referring to any correlative right or obligation. The word ought to be given its ordinary meaning of "something which binds one person to another" (Johnston: Prescription and Limitation, para 2.02 to 2.04). For the purposes of section 6, the obligation became enforceable on the date when the loss, injury or damage occurred (section 11(1)). Section 6 applied to other obligations involving equity and discretion, such as redress for unjustified enrichment, which might involve an obligation of restitution, repetition or recompense. Majrowski v Guy's & St Thomas's NHS Trust showed that the exercise of such discretion did not strip a requirement to pay damages of its character as an obligation (per Lord Nicholls at para 22). In the absence of express provision otherwise, a claim for damages based on a new statutory civil wrong, even where not restricted to traditional delictual remedies, would prescribe under Schedule 1, paragraph 1(d) of the 1973 Act (ibid, per Lord Hope at paras 47-48).

[37] Parliament had created a new civil wrong under section 57(2) of the Scotland Act, namely acting incompatibly with an individual's Convention rights. Where such rights were breached, it gave rise to remedies, including damages under section 100 of that Act. Any obligation to pay damages in terms of that section was an obligation arising from liability to make reparation. That liability arose at a point in time when the victim's human rights were breached, as that was when the "damage" occurred. It was from that point that the period of prescription began. The claims in the present actions had prescribed. The appeals should be refused.

Reply on behalf of the appellants

[38] Mr Collins questioned any reliance placed by the appellants on Miller v Glasgow District Council, which made clear that one could not simply equate reparation with damages for a wrongful act (per Lord Grieve at pages 442 and 444). Rather, reparation involved a delictual or quasi-delictual wrong. Once that was understood, the respondents' argument collapsed. It made no sense to interpret section 11 to the effect that, where damages were awarded, the prescriptive period ran from the date on which the wrong was inflicted: a court may decline to award Convention damages. Instead, an obligation arose when the court ordered the damages to be paid; that was the point in time from which the prescriptive period ought to run. In the present case it had not even started. The analogy which had been drawn with other obligations relating to equity was not appropriate. In the case of redress for unjustified enrichment, considerations of equity arose at the stage of ascertaining whether or not a right existed: if it did, there was an obligation to provide restitution. As indicated, Majrowski did not involve a statutory discretion as to whether or not damages should be awarded. Rather, the statute broadened the scope of the possible heads of claims for such damages. Moreover, it involved a new tortious or delictual remedy (per Lord Hope at para 46). It was not correct to say that the House of Lords had confirmed that reparation involved any civil wrong.

Cross-appeal on the need for declarators to be granted
Submissions on behalf of the respondents and cross-appellants

[39] Ms Drummond observed that there was no need for a proof on the merits in the present proceedings, standing the admissions as regards the breach of the appellants' Convention rights. In those circumstances, if the prescription argument on damages was sustained, the only outstanding matter concerned the declarators which the appellants sought. She submitted that they were not necessary. There having been an acknowledgement of the breach in a public statement by the Ministers and in personal correspondence addressed to each of the appellants, the matter was now academic. There had been sufficient vindication of the appellants' Convention rights. There being no live dispute, the public interest would not be served by issuing such declarators (Clarke v Fennoscandia Ltd 2008 SC (HL) 122, per Lord Rodger at paras [26] to [31]).

Submissions on behalf of the appellants

[40] Mr Collins submitted that the declarators sought were necessary. The respondents had, for a period of three or four years, maintained a denial of any violation of Convention rights. That had been their position before the sheriff. It was only prior to this hearing that there had been any acknowledgement of such violations. That was simply not good enough. In those circumstances a declarator might be necessary in order to accord just satisfaction. The acknowledgement of the violations did not prevent such a remedy being granted (R (Greenfield) v Home Secretary, per Lord Bingham at paras 1, 26 and 31; Kantyrev v Russia (Application 37213/02) Unreported, 21 June 2007).

Discussion of prescription
[41] In 1970 the Scottish Law Commission published its Report on Reform of the Law Relating to Prescription and Limitation of Actions. This was a fundamental review of the law of positive prescription, of negative prescription and of limitation of actions. It was followed by legislation - the Prescription and Limitation (Scotland) Act 1973. Sections 6 to 13, as read with Schedules 1 to 3 and with sections 14 to 16, dealt with negative prescription. On the face of it, the statute sought to deal with prescription comprehensively, including identifying, in Schedule 3, rights and obligations which were imprescriptible. With the exception of certain specific rights (relating to property) in section 8 and certain rights identified as imprescriptible in Schedule 3, prescription, as provided for, was concerned with the prescription of obligations: section 6 provided for the prescription of certain obligations on the expiry of "a continuous period of five years" (unless a relevant claim had been made or the obligation had been relevantly acknowledged); section 7 provided for prescription (subject again to a relevant claim or acknowledgement) on the expiration of twenty years of an obligation of any kind, not being an imprescriptible obligation. The term "obligation" was not defined. The law of prescription as there provided for ex facie was concerned with the private law of Scotland. Earlier consideration by the Commission of the prescription of crimes (an aspect of public law) had not been taken further by the Commission in its Report (para 4); nor was such prescription addressed in the legislation.

[42] In R v HM Advocate (a criminal case, of course) views were expressed, particularly by Lord Hope and by Lord Rodger, about remedies under the Scotland Act 1998. Lord Rodger at para [18], observed that "Convention rights and the remedies for vindicating them belong in the sphere of public rather than private law". He cited certain Commonwealth cases in support of that proposition - where rights and remedies were conferred on citizens against the state under constitutional instruments. In one of those cases, Maharaj v A-G of Trinidad and Tobago (No.2) [1979] AC 385, Lord Diplock at page 400 distinguished between such rights and remedies and a claim in private law for damages for tort. Lord Hope at para [38] of R, approving of an explanation given in Clayton and Tomlinson: The Law of Human Rights (1^st ed.) in relation to the Human Rights Act, said that an award of damages (under the Scotland Act) is regarded "as a public law remedy". (This explanation in Clayton and Tomlinson is somewhat modified in subsequent editions. In R (Greenfield) v Secretary of State for the Home Department Lord Bingham, referring to the Human Rights Act, observed that it "is not a tort statute" (para 19)).

[43] In Somerville v Scottish Ministers these views were revisited in the context of civil litigation. Lord Hope (at paras [36]-[38]) and Lord Rodger (at para [121]), with whom Lord Walker of Gestingthorpe with, apparently, some hesitation agreed, reaffirmed their views that the Scotland Act itself provided for a remedy - in essence, a "public law remedy".

[44] These conclusions, while well supported by argument, might possibly have surprised the framers of the Scotland Act itself. The notion of a "public law remedy", in the sense used by Lord Hope and Lord Rodger, might certainly have surprised the framers of the 1973 Act. Parliament at neither stage made any express prescription or limitation provision in respect of it - though the arguments that it nonetheless falls within the ambit of the 1973 Act, and in particular section 6, will require to be examined. When, ultimately, the Scottish Parliament came to make a time-related provision in relation to that remedy, it did so not by amending the prescription provisions of the 1973 Act but by introducing a limitation provision into the Scotland Act (Convention Rights Proceedings (Amendment) (Scotland) Act 2009, section 1).

[45] While between 1985 and 1992 the expression "public law remedy" was on occasion used, judicially but loosely, to refer to the process of review of administrative action by a petition for judicial review (a use which also confused the process itself with the remedy or remedies which might be afforded under it), that usage was disapproved by Lord President Hope in West v Secretary of State for Scotland at pages 405 and 411 (see also Davidson v Scottish Ministers 2006 SC (HL) 41, per Lord Hope at para [47]). So far as appears, the use of the expression to describe damages which may be awarded under the Scotland Act was first used in Scottish authority in November 2002, when Lord Hope and Lord Rodger in R v HM Advocate recognised the basis of the remedy.

[46] In R (Quintavalle) v Health Secretary Lord Bingham of Cornhill, addressing the general issue of statutory interpretation, said this:

"8 The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.

9 There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking. If Parliament, however long ago, passed an Act applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now. The meaning of 'cruel and unusual punishments' has not changed over the years since 1689, but many punishments which were not then thought to fall within that category would now be held to do so. The courts have frequently had to grapple with the question whether a modern invention or activity falls within old statutory language: see Bennion, Statutory Interpretation, 4^th ed. (2002), Part XVIII, Section 288. A revealing example is found is Grant v Southwestern and County Properties Ltd [1975] Ch. 185, where Walton J had to decide whether a tape recording fell within the expression "document" in the Rules of the Supreme Court. Pointing out, at p 190, that the furnishing of information had been treated as one of the main functions of a document, the judge concluded that the tape recording was a document."

In paragraph 10 his Lordship cited with approval the following passage from the speech of Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 at page 822:

"In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question 'What would Parliament have done in this current case - not being one in contemplation - if the facts had been before it?' attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself."

Lord Bingham observed that that passage could now be treated as authoritative.

[47] The object of Schedule 1 to the 1973 Act was to define the obligations to which the quinquennial prescriptive period under section 6 would apply. Although the list of obligations in that schedule is finite and accordingly any obligation not included in it is not affected by section 6, we do not consider that a "restrictive" interpretation should be applied either to the schedule as a whole or to the particular paragraphs within it. Nor is an "expansive" interpretation necessarily called for. As Lord Wilberforce said, it is proper and indeed necessary to have regard to the state of affairs existing, and known by Parliament to be existing, at the time the legislation was enacted. For present purposes one is concerned not with any factual state of affairs but with a classification of legal obligations - in particular what would Parliament have understood by the expression "any obligation arising from liability (whether arising from any enactment or from any rule of law) to make reparation"?

[48] In its summary of recommendations the Scottish Law Commission had proposed that a new shorter negative prescription should apply to, among other things, "rights and obligations based on delict and quasi-delict other than personal injury" (Report, para 164(9)). The background to that recommendation was that, under the existing law, "actions founded on delict or quasi-delict (other than those causing personal injury) may be brought at any time within the period of the long negative prescription ..." (then twenty years) (para 94). The view was expressed that that period was too long. At para 95 the Commission said:

"It is undesirable that a person who has committed a delict should remain under threat of an action for reparation for a lengthy period: the possibility of having to defend legal proceedings based on defamation or negligence is normally a cause for anxiety to the person concerned and there should be a limit of time after which he need no longer have such distracting fears."

After a reference to the (English) Limitation Act 1939 the Commission continued:

"We have looked at the various categories of delicts and have come to the conclusion that in general there is no reason why the pursuer in an action based on delict should not be required to commence it within a reasonably short period after the occurrence of the delict."

The Commission does not in its Report expand upon "the various categories of delicts" which it had looked at. It had, however, in its preceding Memorandum (Memorandum No.9) referred at para 78 to a survey of the various categories of delicts made by it under reference to the index to contents in Walker: Delict (1^st ed.) I: pages ix-xiv. These do not include remedies arising under a "constitutional" instrument.

[49] The Commission refers to "delict or quasi-delict". In Liquidators of Western Bank v Douglas (1860) 22 D 447, Lord Justice Clerk Inglis, delivering the Opinion of the Court, said at pages 475-6:

"Some writers in our law have made a distinction between delicts and quasi delicts as a ground for a civil action of reparation, giving the former name to those graver offences which might form the object of criminal proceedings, and the latter to those which will only found a claim for pecuniary reparation of damage sustained. But this distinction is of little importance to the present case, for we are of opinion that the same measure of reparation is due, on the same conditions, and by the same form of action, whether the cause of the damage be the one kind of delict or the other."

[50] By the time of the enactment of the 1973 Act the distinction was unimportant, so that Professor Walker could entitle his important work encompassing both kinds of delict as "Delict" (1^st ed., 1966) - see page 28. The prior standard work in this field of law was Glegg on Reparation (4^th ed., 1955). That work opens with the following observations:

"Reparation is the pecuniary remedy afforded by law for loss caused by a wrong. By a wrong is meant a breach of a private and not a public duty: and private duty is understood to include any obligations fixed by law, and to exclude those created by agreement. In other words, wrong is distinguished from crime on the one hand, and breach of contract on the other."

[51] While a wrong by way of a breach of a private right may include a breach of a statutory duty, including such a breach by a public authority, there is nothing to suggest that in 1973 "reparation" would have been understood as encompassing a "public law remedy" in the sense used by Lord Hope and Lord Rodger in R v HM Advocate and in Somerville v Scottish Ministers. It is doubtful whether, until the coming into force of the Scotland Act and its interpretation in R v HM Advocate, the existence of such a "public law remedy" would have been recognised in Scots law.

[52] The circumstance that such a remedy would not have been recognised in 1973 does not exclude the possibility that, it having come to be created and recognised subsequently, it falls with a statutory expression used in that year. One of the situations in which Lord Wilberforce in Royal College of Nursing contemplated that a new state of affairs might fall within the parliamentary intention was if there could "be detected a clear purpose in the legislation which can only be fulfilled if the extension is made". But no such clear purpose was satisfactorily identified for us in the discussion. While the 1973 statute was apparently comprehensive in its scope, it is not evident that Parliament intended that the words used in Schedule 1, para 1(d) should be understood in any wider sense than that in which they would have been understood at the time.

[53] The alternative mode identified by Lord Wilberforce is that the new state of affairs falls "within the same genus of facts as those to which the express policy has been formulated". But, in our view, "the public law remedy" under the Scotland Act is of a quite different category from the liability to make reparation for wrong contemplated by para 1(d). As Glegg observed, "reparation" was concerned with a remedy for loss caused by breach of a private duty. Moreover, the language used in para 1(d) does not readily square with that applicable to a Scotland Act right or remedy. Para 1(d) is expressed in terms of any obligation arising from liability [to make reparation]. That imports that the wrongdoer is, by force of the liability in question, bound to make pecuniary compensation to the person affected. By contrast, no obligation to pay damages is exigible from the Scottish Ministers by reason of an infringement by them of a victim's Convention right. Any such obligation arises only if and when a court decides, in the exercise of its discretion, that damages is an appropriate mode of affording to the victim just satisfaction. To adopt Lord Bingham's example, the remedy under the Scotland Act is a cat, not another (subsequently recognised) dog.

[54] Moreover, damages payable in reparation are in Scotland fundamentally compensatory in character (Walker: Damages p.4; Stewart - Reparation: Liability for Delict paras A.28.002-003). There is English support for the view that compensatory damage may in some (probably limited) circumstances include a vindicatory purpose - Ashley v Chief Constable of Sussex Police [2008] 1 AC 962, especially per Lord Scott of Foscote at para 22 and Lord Rodger at para 60; but it is far from certain that that purpose would be legitimate in respect of an award of damages in reparation in Scotland. Damages awarded for an infringement of the Scotland Act, like remedies under other constitutional statutes, appear to be essentially vindicatory in character (Att-Gen of Trinidad and Tobago v Romanoop per Lord Nicholls at paras 18-19; Simpson v Att-Gen (Baigent's Case) [1994] 3 NZLR 667, especially per Cooke P at page 678; Beatson and Others - Human Rights: Judicial Protection in the United Kingdom para 7-169/-172), albeit restitution may be an important element in quantifying the award. The difference in emphasis is a further distinction between damages in reparation and damages under the Scotland Act.

[55] The sheriff placed reliance on the decision of the House of Lords in Majrowski v Guy's & St Thomas's NHS Trust, and in particular on the observations of Lord Hope that actions for damages under section 8 of the Protection from Harassment Act 1997 would be subject to the quinquennial prescription. But Lord Hope (at para 46) rejected the submission that the right to claim damages (in England) under section 3 of the 1997 Act did not create a new tort. He said:

"In my opinion it did, just as the equivalent remedy which it created for Scotland is properly classified as a delictual one."

Parliament thus created (for Scotland) a statutory delictual liability which could readily find a place within para 1(d) of Schedule 1 to the 1973 Act. The remedy so provided was, in our view, very different in kind from that created by the Scotland Act (as interpreted).

[56] For the foregoing reasons we are satisfied that the sheriff erred in holding that the pursuers' claims were subject to the quinquennial prescription under section 6 of the 1973 Act. Although we heard no detailed submissions on it, we are conscious that, under our approach, these claims would probably not be subject to the vicennial prescription under section 7 either; nor are they listed as imprescriptible rights or obligations. But this only demonstrates their novelty, for which Parliament has ultimately made new provision.

Disposal
[57] Mr Collins made it clear that the appellants' primary interest was in receiving awards of damages. The crave seeking a declarator had, he advised us, been introduced in the course of proceedings in the sheriff court only in response to the prescription challenge to the claims for damages. If the plea to prescription was repelled, the appellants might not insist on the crave for declarator; but this was best reserved for disposal in the sheriff court. We consider this to be the preferable course. The sheriff should have available to him the options of granting a declarator or awarding damages or, perhaps, doing both. We are not persuaded that, given the histories of these litigations, a declarator of infringement could not be, or be part of, just satisfaction.

[58] We shall for the above reasons allow the appeal, recall the sheriff's interlocutor of 17 February 2010 (except in so far as it repelled the defenders' first and fourth pleas-in-law), repel in each case the defenders' second plea-in-law (that directed to prescription) and remit to the sheriff to proceed as accords.