Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 66
P755/12	OPINION OF LORD BOYD OF DUNCANSBY in the Petition of JAMES HENDRICK Petitioner; for Judicial Review ________________

Petitioner: A Smith QC; Drummond Miller

1^st Respondents: M Maguire QC; J Macgregor; Simpson & Marwick

2^nd Respondents: J Lake QC, A Jones; bto

26 April 2013

[1] This is the petition of James Hendrick. He was formerly a police officer with Strathclyde Police. On 5 February 2008 he was dismissed from the force following a misconduct hearing constituted under the Police (Scotland) Regulations 1996. He appealed to the Chief Constable who dismissed the appeal on 23 July 2009. He then appealed to the Police Appeal Tribunal constituted under the Police (Scotland) Act 1967, section 30 and the Police (Scotland) Rules 1996. The appeal was dismissed on 28 September 2010. The Chief Constable of Strathclyde is the first respondent. The Police Appeals Tribunal Scotland are the second respondents.

(i) Declarator that the decision of the Disciplinary Committee that found that certain charges against the petitioner established was based upon an (sic) errors of law.

(ii) Declarator that the decision of the first respondent to dismiss the petitioner was similarly an error of law being an implement of the disciplinary erroneous decision.

(iii) Declarator that the decision of the first respondent to refuse the appeal to him was based upon an error of law also arising from the errors of the Disciplinary Committee.

(iv) Declarator that the decision of the second respondents proceeded upon errors of law.

He further sought orders, viz.

(v) Quashing the decisions of each of the Disciplinary and Appeals Committee and the decisions of the first respondent to dismiss the petitioner from service; orders declaring that there is no valid reason for his dismissal; and for an order declaring that the petitioner ought to be reinstated; and if that is not feasible, for such order or orders (including payment of damages) as may be pronounced. The petitioner craves the court to pronounce such further order, decrees or orders (including an order for expenses) as may seem to the court to be just and reasonable in all the circumstances of the case.

This petition was lodged in July 2012 and first orders granted on 20 July 2012. No order was sought for intimation on the second respondents. When the case called for a first hearing on 14 November 2012 counsel for the second respondents sought leave to enter the process. Lord Glennie granted the application. Thereafter he pronounced an interlocutor setting out a detailed timetable to manage the process. In particular he allowed the petitioner until 21 November 2012 to adjust his petition so as to provide further specification in relation to inter alia (a) what decisions are challenged, (b) the basis of the challenge in each case, (c) how the issues in relation to each challenge were raised before the tribunal, (d) what remedy is sought, (e) what are the reasons for the delay between the decision being issued and the presentation of the petition. He also appointed various dates for the exchange and lodging in process of notes of argument, authorities and revised notes of arguments. He continued the first hearing to a date to be afterwards fixed to take the form of a three day debate on all issues. The continued first hearing came before me on 7 March and was set down for two days. For the petitioner Mr Smith presented a minute of amendment and a supplementary note of argument and initially moved the court to allow the minute of amendment to be received and the petition amended in terms thereof. This was opposed by Ms Maguire and Mr Lake for the first and second respondents respectively. In the course of the argument it became abundantly clear that there was no prospect of finishing the first hearing in two days and after further discussion I acceded to a motion from the first respondents to hear submissions in respect of the first and second respondents' pleas to the effect that the petition is barred by mora, taciturnity and acquiescence from challenging the decisions complained of and that the petition should be dismissed. It was agreed that if I repelled the respondents' pleas I should put the matter out By Order to determine further procedure. In the meantime Mr Smith withdrew his motion to allow the minute of amendment to be received and the petition amended. I then proceeded to hear counsel in respect of their pleas ordering the respondents to lead.

[2] For the first respondents Ms Maguire submitted that there are three elements to the plea of mora, taciturnity and acquiescence. She accepted that all three elements had to be present: Somerville v Scottish Ministers 2007 SC 140. In the context of judicial review a short delay can be deemed unacceptable. For example a delay of four months between the decision in question and the commencement of judicial review had been held to be long enough to engage mora: United Co-Operative Limited v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831. In this case there had been a delay in 22 months in raising proceedings. One of the grounds of complaint related to the standard of proof at the misconduct hearing. It was six years since these proceedings had concluded. Turning to taciturnity she submitted that the petitioner had been silent from the period between the decision complained of and the raising of the petition. I understood from her that the first respondents first knew of the petitioner's challenge when the petition was served upon him. In general applications for judicial review should be made at the earliest opportunity. Failure to do so may lead to an inference of acquiescence: King v East Ayrshire Council 1998 SC 182; see also Watt v Secretary of State for Scotland (1991) 3 CNLR 429 per Lord Weir at paragraph 21, pages 437, 438. The approach is an objective one. Acquiescence may be inferred from the petitioner's inaction and silence. The question is how the matter would have appeared to a reasonable person observing the petitioner's conduct: see Lord Glennie in United Co-Operative Limited, paragraph 33, page 842.

[3] In this case the petitioner was represented by solicitors and a solicitor advocate QC at the Police Appeal Tribunal. The petitioner is not therefore in the position of a private individual with no experience in matters of this kind: see King v East Ayrshire Council at page 188. The actions of the petitioner were inconsistent with those of an individual who disputed the decisions at the heart of the petition. The clearest example of this was the fact that the petitioner had applied for and drawn down his pension since 15 July 2010. A reasonable person observing this conduct would conclude that by drawing down his police pension the petitioner no longer sought reinstatement. The first respondent had proceeded on the basis that the decision would not be challenged. He had arranged his resources on this basis. The petitioner's averments about delay during the conduct of the misconduct hearings were irrelevant.

[4] For the second respondents Mr Lake submitted that I should sustain the second respondents' first plea in law. The issue was whether standing the delay of 22 months from September 2010 to July 2012 it was now open to the petitioner to invoke the supervisory jurisdiction of the court. He founded on three cases viz Somerville v Scottish Ministers, King v East Ayrshire Council and United Co-Operative Limited v The National Appeal Panel for Entry into the Pharmaceutical Lists. In King the court had commented that the failure to write a letter might have given rise to an inference of acquiescence on the part of a company or an individual with resources, experience and ready access to legal advice. In that case the petitioners did not have such access and the failure to write a letter was of no moment. In this case however the petitioner did have access to legal advice. Accordingly the failure to write a letter asserting his rights was telling. This was not a matter of judicial discretion; it was the application of a test: Lord Glennie in United Co-Operative Limited at page 840F quoting Lord Carloway in Edgar Road Property Company v Moray Council 29 May 2007, unreported at page 23.

[5] Mr Lake submitted that mora and taciturnity were clearly established. The real issue was whether or not there was acquiescence. That issue was to be viewed from the standpoint of a reasonable person. It could be inferred from the petitioner's conduct. On viewing that conduct the reasonable person observing it is taken as knowing of all the circumstances of which the petitioner knew or ought to have known when acting in the way they did. There was no need to show reliance or prejudice but where that exists it can show acquiescence: per Lord Glennie in United Co-Operative Limited, paragraph 34. Explanations from the petitioner may rebut acquiescence. There must however be facts which an objective observer would have known about. The petitioner cannot rely on secret matters. Where a petitioner makes the position clear to the decision maker that they intended to challenge the decision a longer delay in challenging may be acceptable. Where the petitioner has legal representation an inference of acquiescence may more readily be made from delay or silence. In this case, viewed objectively, the petitioner acted in a manner consistent with acceptance of the position. The delay of 22 months was quite remarkable. This was not a case where the petitioner was unrepresented. He had Mr Macara, QC through much of the misconduct hearings (though not the evidential part) and representing the petitioner through the appeal before the second respondents. Thereafter the petitioner had been advised by Mr Smith. Nothing had been said to either respondent of an intention to challenge the decision. Mr Lake submitted that the response from the petitioner was that he was entitled to get advice and seek funding but something must be said or done to indicate challenge. Reference had been made to Freedom of Information (FOI) requests which had been submitted to the first respondent. However, even if they were relevant, the only decision that could competently be reviewed was that of the second respondents. The first and second respondents were differently constituted bodies. If there was dissatisfaction with the conduct of misconduct hearings that was a matter for an appeal to the second respondents. He pointed out that the matters now raised had not been the subject of appeal to the second respondents. In his submission the starting point for considering the delay in raising proceedings was the decision of the second respondents. Anything that happened before was irrelevant. The importance of an early challenge was obvious. If the petitioner was successful and the decision of the second respondents was quashed, the obvious course of action was for a re-hearing before the Police Appeal Tribunal. If it established that the standard of proof to be applied in the misconduct hearings was one of proof beyond reasonable doubt as opposed to the balance of probabilities that may lead to a re-hearing. Memories may be less good.

[6] The fact that the petitioner had drawn and continues to draw his pension is also inconsistent with seeking reinstatement. It was not something which on its own barred a claim but a reasonable and objective onlooker would conclude that, together with the silence from the petitioner and the long delay, the petitioner had acquiesced in the decision.

[7] For the petitioner Mr Smith began his submissions by declaring that the petitioner did not wish to be reinstated in the police force. Understandably, he said, what he wanted was compensation. So far as the mora pleas were concerned, they should be repelled. There is a clear onus on the respondents to establish all three legs of the argument. Although they overlap, they should be viewed individually. There was no positive statement from the petitioner to the effect that he had abandoned any rights against the respondents. The question then was whether or not it could be inferred that he had done so. Turning to the question of his pension, the petitioner had no intention of applying to be reinstated to the police force. He had turned 50. He had no income. It was significant that it was the second respondent who had relied most heavily on this point. Yet they could have no legitimate interest in whether or not the petitioner drew his pension. The harsh reality was that absence of income was the reason why the petitioner had claimed his pension.

[8] Mr Smith submitted that the proceedings before the misconduct hearings and the Police Appeal Tribunal should be treated as a unified procedure. This was the position adopted by Lord Drummond Young in the petition of MacR 2013 CSOH 28, paragraph 46 in respect of the disciplinary proceedings of the Law Society of Scotland. Mr Smith referred me to the joint minute and the FOI request which the petitioner's wife had initiated. This demonstrated that investigations had been on-going. The point being pursued in the FOI request may not have been a good one. That was irrelevant. What it showed was that investigations were on-going. It was inconsistent with acquiescence. The petitioner and his wife were clearly agitated with the manner in which the disciplinary proceedings had been handled. He submitted that there were insufficient pleadings to make out the plea. Neither of the respondents had been the subject of actual prejudice. It was said on behalf of the first respondents that he had arranged his affairs in the knowledge and expectation that the petitioner had accepted the result of the proceedings. How, Mr Smith asked, had this been done? There were no averments to support this contention.

[9] Mere delay was not sufficient: United Co-Operative Limited, paragraph 28. There had to be a known right coupled with a material alteration to the detriment of the other party: Kinross LP in Assets Company Limited v Bain's Trustees (1904) 6 Fraser 705, cited in Lord Nimmo Smith's Opinion in Singh v Secretary of State for Home Department 2000 SLT 533 at page 537. While the First Division in Somerville at page 21, paragraph 94, had said that prejudice or reliance are not necessary elements of the plea, the dicta of Kinross LP still remained. Accordingly there was a conflict between these two dicta.

[10] So far as what might be regarded as acceptable periods of delay are concerned Mr Smith referred me to the Opinion of Lord Glennie in United Co-Operative Limited, paragraph 30 where he said that in cases of private right the relevant period was likely to be counted in years not months while in cases of judicial review the period is likely to be much shorter. The reason for the shorter period is said to be because in the administrative law context some decisions are likely to be acted upon more quickly and therefore if they are to be challenged it should be done with alacrity. While the petition was one of judicial review Mr Smith submitted that the issue in this case was effectively a matter of private right and therefore a longer period was appropriate. He accepted that if the proceedings were subject to a three months time bar the petition in this case could have been lodged within that time. However this was not a straightforward case. It involved issues of what was the appropriate standard of proof in misconduct hearings and the characterisation of the proceedings as criminal. The complexity of the issues should be taken into account. It was a big step for the petitioner to take proceedings. He had to fund this himself. In all the circumstances there was no delay in the presentation of the proceedings.

[11] Turning to taciturnity Mr Smith accepted that there was no intimation that the petitioner was going to challenge proceedings. However the issue of regulation 14 of the Police Conduct Regulations had been raised by the petitioner's wife in a letter to the first respondent dated 14 September 2007. That was a theme that ran through the correspondence from thereon. There had been an FOI request submitted to the first respondents on 7 July 2010. There had been a response on 5 August 2010. However there had been a further letter from the first respondents in response to the FOI request on 22 September 2010 after the final Police Appeal Tribunal hearing on 21 September 2010 (but before the decision of the Police Appeal Tribunal issued on 28 September 2010). This correspondence, Mr Smith submitted, showed that the first respondent was engaging with the process even after the hearings. What, Mr Smith asked, did the first respondent think that the petitioner was going to do with this information? Mr Smith submitted that there had been delay by the first respondent in the conduct of the misconduct hearings. He submitted that although this delay occurred well before the final decision of the Police Appeal Tribunal, delay before the decision in the conduct of the proceedings could give a barometer to the period that is thought to be appropriate or reasonable in the raising of proceedings. In this case an investigating officer was appointed on 12 December 2005 following intimation from the Crown that no proceedings would be taken against the petitioner. It was over a year to the first hearing on 17 January 2007. Yet, according to Mr Smith, the first respondent had been given what was described as a pre-packaged prosecution by the Crown. The delay, Mr Smith submitted, was the context within which one should view any delay by the petitioner.

Discussion and Decision

[12] Judicial review is an application to the supervisory jurisdiction of this court. It is one that in general should be taken at the earliest opportunity having regard to the circumstances in which the application is brought. A failure to take such an application at an early opportunity may well lead to an inference of acquiescence: King v East Ayrshire Council 1998 SC 182 per Rodger LP at page 188G. The courts recognise that the public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision longer than is necessary: King per Rodger LP at page 196C. All three elements of the claim must be present. In order for acquiescence to be established it is not necessary to show prejudice or a change of circumstances reliant on the decision complained of. That is clear from the observations of the court delivered by the Lord President in Somerville v Scottish Ministers having reviewed authority and in particular the Opinion of Lord Nimmo Smith in Singh v Secretary of State for the Home Department. The court in Somerville said:

"While we are content to adopt it (Lord Nimmo Smith's Opinion) we would emphasise that prejudice or reliance are not necessary elements of the plea. At most they feature as circumstances from which acquiescence may be inferred."

Mr Smith contended that the statement was at variance with the Opinion of Lord President Kinross in Assets Company Limited v Bain's Trustees cited as a classic definition of the plea and quoted by Lord Nimmo Smith in his Opinion in Singh. Kinross LP said:

"But in order to lead to such a plea receiving effect there must, in my judgement, have been an excessive or unreasonable delay, coupled with a material change in circumstances, to the detriment of the other party."

However, as Lord Nimmo Smith observes, this definition is more readily applicable to a case involving private rights. It certainly long predates the advent of modern judicial review and the growth of administrative law. Lord Nimmo Smith himself recognised that

"There may well be cases where the passage of time, as related to the surrounding circumstances may be such as to yield the inference of acquiescence in the decision in question."

He continued, however:

"Usually there will have been such alteration of position on the part of one of the parties as, together with the passage of time, to yield the inference of acquiescence."

It was in the light of these comments that the Lord President in Somerville took the opportunity to clarify that while they were content to adopt Lord Nimmo Smith's Opinion they made it clear that prejudice or reliance were not necessary elements of the plea.

[13] This approach was followed by Lord Glennie in United Co-Operative Limited where he said:

"This insistence that neither prejudice nor reliance is a necessary element of the plea is an important reminder that the whole plea of mora, taciturnity and acquiescence looks to the conduct of the would-be pursuer or petitioner and the inferences sought to be drawn from that conduct. The essence of the plea is acquiescence to be inferred from the petitioner's inaction."

Accordingly I consider that it is well settled that in order to establish a plea of mora, taciturnity and acquiescence it is not necessary to show prejudice or reliance by one of the parties on the decision complained of.

[14] Mr Smith contended that there were insufficient averments in the respondents' answers to support the plea. I do not agree. These averments are set out in the answers for each of the first and second respondents and are in my opinion sufficient to found the plea.

[15] Lord Glennie's analysis and approach to the plea in United Co-Operative Limited is comprehensive and persuasive and I am happy to follow it. He describes the three elements of the plea as overlapping and indeed coalescing. Like him I intend to consider separately the questions of mora and taciturnity before going on to consider acquiescence and the inferences that can be drawn from these factors in the context of the whole of the surrounding circumstances.

[16] The term mora refers to the delay in bringing legal proceedings to challenge the decisions complained of. As Lord Glennie observes in cases of private right the relevant period is likely to be counted in years not months. In cases of judicial review the plea is likely to be invoked where the delay is much shorter. Mora simply means a delay beyond reasonable time.

[17] In this case the decision of the Police Appeal Tribunal was issued on 28 September 2010. On 12 November the petitioner had a consultation with senior counsel. In April 2011 senior counsel issued an opinion. On 18 May the Scottish Police Federation refused funding for a judicial review. A letter was sent to them on 20 May from the petitioner's solicitor stating that Mr Smith, QC, still thought there was merit in the appeal. However a week later the Scottish Police Federation advised that they were not prepared to fund a judicial review. On 2 September 2011 a further opinion was obtained from senior counsel and on 4 October a further letter was sent to the SPF asking them to reconsider their decision on funding. This was again refused on 24 October. On 25 November 2011 the SPF were called upon to make payment of fees to date under the Insurance Companies (Legal Expense) Regulations 1990. On 1 December 2011 the SPF advised that these regulations did not apply. Further correspondence with the SPF resulted in the letter dated 4 January 2012 that there would be no funding for expenses to date. In March 2012 instructions were sent to counsel to draft the petition.

[18] In assessing what is a reasonable time the requirements of good administration will rank high amongst other circumstances. Account must be taken of the complexity of the issue and the need to take advice, gather information and draft proceedings: per Lord Glennie in United Co-Operative Limited at page 841G-H, paragraph 30. Mr Smith argued that although this petition is a judicial review and properly falls into the category of administrative law the issue in this case was more of a private dispute between an employer and an employee. Accordingly, as I understood it, a less rigorous approach might be taken to the issue of what instituted a reasonable time than one where there was a true public issue to be resolved.

[19] It is of course true that the issues here do not have the wider public interest of, say, a school closure or the granting of planning permission in respect of a major development. Nevertheless I reject the suggestion that this is purely a private matter between the Chief Constable and one of his officers. In the first place the public have an interest in the maintenance of a police service which is properly regulated to ensure the honesty and integrity of its officers and the efficient running of the service. Secondly the principle of finality of legal proceedings should apply as much to the decisions of tribunals properly constituted under law as they do to other legal proceedings. That principle is undermined if there is undue delay in bringing proceedings challenging the outcome of these tribunals.

[20] While I consider that it is reasonable to allow some time for the petitioner to seek funding that cannot explain the long delay in raising proceedings in this case. The consultation with senior counsel was in November 2010. Yet no application was made for funding to the SPF until May 2011. It might also be reasonable to allow time for the SPF to reconsider their position. Even then there are further unexplained delays. The final letter refusing funding was 24 October 2011. Thereafter, as I understood it, there was further correspondence with the SPF relating to provision of legal expenses in respect of the misconduct hearing and the Police Appeal Tribunal ie. expenses to date but not in respect of judicial review proceedings. However it was not until March 2012 that instructions were sent to counsel. Again there was a delay in the presentation of the petition and the seeking of first orders. The total length of time between the decision of the Police Appeal Tribunal and the lodging of the petition is 22 months. I am satisfied that the mora element of the plea is established.

[21] Mr Smith also argued that the first respondent had been less than diligent in the misconduct hearings. That was hotly disputed by the first respondent. I struggle to see the relevancy of averments of delay in the misconduct proceedings to the question of whether there has been a delay by the petitioner in raising proceedings. At best it might set a context in which the timescale may be viewed. However I am satisfied that in this case any delays in the misconduct hearings appear to have been due to the petitioner's illness. Mr Smith conceded that there was no delay on the part of the second respondents. I am satisfied that there is no merit in this point.

[22] Taciturnity is a failure to speak out in an assertion of a right or claim when a reasonable person in his position would be expected to speak out. There was no communication whatsoever with either of the respondents intimating any claim against them. Mr Smith said that the respondents should have known the petitioner could have been dissatisfied. Even if that is true it is however one thing to be unhappy with a decision or verdict but quite another to say that it breached some right of the petitioner. So far as the FOI correspondence is concerned it is clear that it had nothing to do with a claim against either respondents. This submission is again without merit and I have no difficulty in holding that the element of taciturnity in the plea is established.

[23] The third element of the plea was acquiescence. In United Co-Operative Limited Lord Glennie said:

"Acquiescence simply means assent to what has taken place. The enquiry is not a subjective one, to be answered by looking into the mind of the petitioner. The test is objective. Acquiescence requires to be inferred from the petitioner's inaction and silence. The question is how the matter would have appeared to a reasonable person observing the petitioner's conduct, knowing of all the circumstances of which the petitioner knew or ought to have known when acting in the way they did. The same facts as then form the assessment of mora and taciturnity are relevant to the question of acquiescence."

[24] Once again I am content to adopt this approach. I consider that an objective assessment of the petitioner's conduct, including silence and inaction, since the decision of the Police Appeal Tribunal points persuasively towards acquiescence. The factors that I consider relevant are these. First, the delay of 22 months between the decision and the commencement of proceedings. While some delay might be reasonable to allow for investigation and to apply for funding for a judicial review, the delay here is in my opinion inordinate. The issues to be explored were essentially short legal points which might need some little research. However, by November 2010 the petitioner had had a consultation with senior counsel and the issue should have been clear there or shortly thereafter. Mr Smith's concession that had the petitioner been required to comply with a three month time bar for bringing judicial review proceedings it would have been possible to do so is, I consider, telling.

[25] Secondly, no attempt was made by the petitioner or his agents to intimate any claim on either respondent before the raising of this petition. As Rodger LP acknowledged in King v East Ayrshire Council failure by a person who has access to legal representation to write a letter intimating the claim or asserting their rights may be taken as acquiescence in the decision. In this case silence coupled with a 22 month delay is, I consider, substantial evidence of acquiescence in that decision.

[26] Thirdly, the petitioner applied for and has drawn down a police pension since July 2010. I accept that there are good reasons for his decision to apply for and take his pension. However, on the face of it, such a course of action is surely inconsistent with the decision to challenge the judgment of the second respondents upholding the decision of the first respondent to dismiss him. At the very least, any application to take a pension should have been accompanied by some letter or other notification that in doing so the petitioner was not giving up his rights.

[27] Accordingly, for these reasons, I propose to uphold the first and second respondents' pleas in law in respect of mora, taciturnity and acquiescence and dismiss the petition. I will reserve the questions of expenses.

[28] I should add that both Miss Maguire and Mr Lake reacted strongly in reply to the announcement by Mr Smith that the petitioner did not wish reinstatement but only damages. They pointed out that although damages was mentioned in the crave it was not something for which a legal basis had been set out in the petition. They doubted the grounds upon which a claim for damages could be made against either respondent. They further pointed out that Lord Glennie's interlocutor had stipulated that orders sought by the petitioner should be made clear in the petition by 21 November 2012.

[29] At the time I was inclined to the view that I could only deal with the petition before me. However, as I have considered the matter more fully I have become more troubled by Mr Smith's position. On the face of it such a position is destructive of the merits of the petition which have as their logical conclusion the overturning of the first respondents' decision to dismiss the petitioner from the police.