Act: Party

Alt: Dunlop, QC; Simpson & Marwick

5 February 2013

[1] The appellant raised proceedings in Edinburgh Sheriff Court against the respondent, who had previously acted as his counsel. The respondent had in 2003 or 2004 given advice in relation to claims that the appellant had against the Roslin Institute, his former employer. Such claims proceeded to the Employment Tribunal and the Employment Appeal Tribunal, without the respondent's involvement, and the respondent subsequently gave the appellant advice about an appeal from the Employment Appeal Tribunal to the Court of Session. In his action in Edinburgh Sheriff Court, the appellant sought declarator that the respondent had been in breach of the Race Relations Act 1976, as amended, in his dealings with the appellant. He further sought payment of the sum of £11,000, apparently on the basis of unjustified enrichment. The sheriff dismissed the action, and his interlocutor was affirmed by the sheriff principal. Thereafter the appellant appealed to the Court of Session. On 21 June 2012 we issued an interlocutor and accompanying opinion refusing the appeal and affirming the interlocutors of the sheriff principal and the sheriff.

[2] Following that decision, two motions have been enrolled by the parties. First, the appellant has enrolled a motion in the following terms:

"Given the gross factual inaccuracy enshrining the Opinion dated 21 June 2012, the appellant seeks their Lordships permission either to revisit his appeal in Scotland or for their authority to take his appeal to the Supreme Court".

Secondly, the respondent has enrolled a motion for the expenses of the cause in so far as not already dealt with.

[3] So far as the appellant's motion is concerned, we accept that there is an error in the first paragraph of our Opinion of 21 June 2012. It is stated there that the appellant had been unsuccessful in his claim of unfair dismissal in the Employment Tribunal and the Employment Appeal Tribunal. That is not correct. The true position was that the appellant had made complaints to the Employment Tribunal on the grounds of unfair dismissal, racial discrimination and victimization. He was successful in his claim for unfair dismissal, but not in relation to the claims based on racial discrimination and victimization. We are happy at this stage to state matters accurately. Nevertheless, as is apparent from a full reading of the Opinion, the sentence complained about merely set the scene for the rest of the Opinion, and we can say with complete confidence that it played no material part in our reaching a decision on the merits of the appeal.

[4] The appellant has asked us to reconsider his appeal. We are quite unable to do so. This follows from section 39 of the Court of Session Act 1988, which states:

"The judgment pronounced by the Inner House shall in all causes be final in the Court".

Consequently our interlocutor and Opinion of 21 June 2012 cannot now be reconsidered or otherwise amended by us. The only remedy that the appellant now has is an appeal to the Supreme Court of the United Kingdom.

[5] We are further asked by the appellant to give him authority to take an appeal to the United Kingdom Supreme Court. We are unable to do so. Section 40 of the Court of Session Act 1988, as subsequently amended, makes provision for appeals from the Court of Session to the Supreme Court. Subsection (1) of that section permits an appeal without the leave of the Inner House in cases where a judgment deals with the whole merits of the cause. The result of our interlocutor of 21 June 2012 was dismissal of the pursuer's action, which disposes of the whole merits of the cause. Thus, so far as the Court of Session is concerned, the appellant fulfils all the requirements for making an appeal. The difficulty that he faces is that a notice of appeal to the United Kingdom Supreme Court must normally be certified as reasonable by two counsel or solicitors with extended rights of audience. That is a requirement of that Supreme Court. The appellant informs us that he has been unable to obtain the necessary signatures on his notice of appeal. We have no power to deal with this problem, however; the procedures for entertaining an appeal in the United Kingdom Supreme Court are a matter entirely under the control of that Court, and we cannot interfere.

[6] That said, counsel for the respondent helpfully tendered to us a document dated 6 April 2011 addressed to the registrar of the United Kingdom Supreme Court by a panel of three Justices of that Court in an application brought by a Mr Thomas Ewing in which the panel of Justices stated that in exceptional cases the requirement of certification by two counsel, or solicitors with extended audience rights, might be dispensed with were good reason to be shown. It thus appears that, notwithstanding his inability to obtain certification, it is open to the appellant yet to endeavour to persuade the Justices of the United Kingdom Supreme Court that they should entertain an appeal from our decision of 21 June 2012.

[7] As already mentioned, the respondent has a motion for the expenses of process except in so far as they have already been dealt with. We can discover no reason why the ordinary rule that expenses follows success should not be applied in the present case. We will accordingly grant the respondent's motion.