EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 22
Lady Paton Lord Drummond Young Lord Wheatley	P755/12 OPINION OF THE COURT delivered by LADY PATON in the reclaiming motion in the petition of JAMES HENDRICK Petitioner and reclaimer; against (FIRST) STEPHEN HOUSE, QPM, CHIEF CONSTABLE, STRATHCLYDE POLICE; and (SECOND) THE POLICE APPEALS TRIBUNAL (SCOTLAND) Respondents: for Judicial review of a decision of the first respondent to dismiss the petitioner from his employment with Strathclyde Police _______________

Petitioner and reclaimer: A Smith QC, R Anderson; Drummond Miller LLP

First respondent: Maguire QC; Macgregor Solicitor Advocate; Simpson & Marwick

Second respondents: J Lake QC; Jones Solicitor Advocate; Brechin Tindal Oatts

19 February 2014

Introduction

[1] The issues in this reclaiming motion are (i) whether prejudice must be shown for a successful plea of mora, taciturnity and acquiescence; and (ii) whether the Lord Ordinary was wrong to sustain such pleas in the present case and to dismiss the petition for judicial review by interlocutor dated 26 April 2013.

Background

[2] On 7 August 2006 the petitioner, a police officer, was served with formal misconduct proceedings. The allegations against him were as follows:

"(1) On 28/29 May 2004 within the Travel Inn, 187 George Street, Glasgow, [you did] act in an improper manner towards [TB], take hold of her by the neck and punch her on the face and in so doing your conduct was such as was likely to bring discredit on the police force or service.

(2) On or about 17 September 2004 in Pollokshaws Road, Glasgow or elsewhere act in an improper manner towards [TB], be aggressive towards her, take hold of her by the body and/or clothing, pull her towards you, place your face close to the face of the said [TB] and adopt a position whereby you were forehead to forehead with the said [TB] and in so doing your conduct was such as was likely to bring discredit on the police force or service.

(3) On or about 17 September 2004 in Pollokshaws Road, Glasgow or elsewhere act in an improper manner towards [TB], push her, punch or otherwise strike her on the face, place her in a headlock and repeatedly punch or otherwise strike her on the face and your conduct in so doing was such as was likely to bring discredit on the police force or service."

[3] Misconduct hearings took place in 2007. There were seven in all, as detailed in the chronology set out in paragraph [9] below. They were conducted by a tribunal comprising Detective Chief Superintendent Ruaraidh Nicolson and two police officers, acting as assessors. The petitioner was invited to attend each hearing, but did not. His QC attended the initial hearings, many of which were continued to enable medical reports on the petitioner, including psychiatric and psychological assessments, to be obtained. At the third hearing on 5 July 2007, reports from two psychiatrists, Dr Patience and Dr Ellison, were available. Both indicated that the petitioner was not fit to attend, but was fit to instruct a solicitor. Dr Ellison stated further that the petitioner was not going to improve while the proceedings were unresolved. At the fourth hearing, the QC advised the tribunal that he was concerned by the instructions he had received from the petitioner. The hearing was adjourned to allow him to consider whether to withdraw from acting. At the fifth hearing, the case was adjourned to allow further psychiatric evidence to be obtained. At the sixth hearing, neither the petitioner nor his QC attended. The tribunal considered a letter from the QC confirming that he would be withdrawing from acting, and adjourned the hearing so that a report from Dr Baird, psychiatrist, could be made available. At the seventh hearing, neither the petitioner nor his QC were present. The report from Dr Baird stated inter alia that the petitioner had said that he would not attend the hearing as he did not think that he would be dealt with fairly. The tribunal decided that failure to make progress would be detrimental inter alia to the petitioner's health. They accordingly proceeded to hear evidence, all as detailed in paragraph [9] below. After hearing evidence and submissions, the tribunal found the first allegation not proved. They found the second and third allegations proved. The recommended disposal was dismissal from the police force. The petitioner was dismissed on 5 February 2008.

[4] The petitioner appealed to the Chief Constable (the first respondent). The appeal hearing took place on 15 May 2009. The petitioner did not attend the hearing, but his QC (reinstated) attended and presented the appeal. On 23 July 2009 the appeal was refused.

[5] The petitioner appealed to the Police Appeals Tribunal (PAT, the second respondents, an independent tribunal chaired by Stuart Gale QC). The appeal hearing took place on 15 October 2009. For the first time in the misconduct proceedings, the petitioner was present, accompanied by his QC. His QC presented the appeal on his behalf. However there followed further procedure concerning the tendering of new evidence in the form of a letter from TB dated 20 December 2006, indicating an unwillingness to proceed with her complaint. Continued hearings and procedures relating to that letter took place on 29 May, 29 June and 21 September 2010, all as detailed in paragraph [9] below. On 28 September 2010 the PAT refused the appeal.

[6] During late 2010, the year of 2011, and the first half of 2012, neither the Chief Constable nor the PAT heard anything further from the petitioner or his QC.

[7] In July 2012 the petitioner raised the current proceedings for judicial review. He challenged aspects of the disciplinary proceedings, in particular the admission of hearsay evidence, the non‑disclosure of the letter referred to above, and the standard of proof applied (on a balance of probabilities). A first hearing took place on 7‑8 March 2013 before Lord Boyd of Duncansby. Because of time constraints, the court granted the first respondent's motion to restrict argument on that occasion to the respondents' pleas of mora, taciturnity and acquiescence. By interlocutor dated 26 April 2013 the Lord Ordinary sustained those pleas and dismissed the petition.

[8] The petitioner now reclaims.

Chronology

[9] What follows is an outline of the chronology of events. More detail can be found in the pleadings and in the revised appendix dated 17 September 2013, particularly in a joint minute at pages 12 et seq.

17 September 2004: The petitioner is alleged to have assaulted TB as set out in charges (2) and (3).

11 January 2006: An officer was appointed to investigate and interview witnesses.

7 August 2006: Misconduct proceedings were served on the petitioner, with notice of a hearing fixed for 17, 18 and 19 January 2007.

20 December 2006: The complainer TB wrote a letter dated 20 December 2006, addressed to the Assistant Chief Constable, 173 Pitt Street (date‑stamped as received on 8 January 2007 and bearing to have been copied to Beltrami + Co, solicitors, of which firm Mr Macara QC was a partner). In that letter TB mentioned her poor memory, her vulnerability and suggestibility, and in a final paragraph stated:

"I do not want any further contact with the police over this allegation. I will not attend any hearing. I do not give permission for any statements made by me to be used at any hearing or for any other purpose."

17 January 2007: At the first hearing at Police Headquarters, 173 Pitt Street, Glasgow, Mr Macara QC appeared for the petitioner, who was absent. The hearing was adjourned until 14 March 2007 to enable an independent psychiatric and psychological reports to be obtained.

14 March 2007: At the second hearing, Mr Macara QC appeared for the petitioner, who was again absent. The hearing was adjourned until 5 June 2007 to allow medical reports to be obtained.

5 June 2007: At the third hearing, Mr Macara QC appeared for the petitioner, who was absent. Reports from two psychiatrists Dr Patience and Dr Ellison indicated that the petitioner was not fit to attend, but was fit to instruct a solicitor. Dr Ellison also stated that the petitioner was not going to improve whilst the proceedings were unresolved. The hearing was adjourned until 9 July 2007 to allow Mr Macara to make representations as to why the hearing should not proceed, and to consider his own professional position.

7 July 2007: The petitioner was admitted as a voluntary patient to Leverndale Hospital (a psychiatric hospital).

8 July 2007: The petitioner was discharged from Leverndale Hospital.

9 July 2007: At the fourth hearing, Mr Macara QC stated that he was concerned by the instructions he had received from the petitioner. The hearing was adjourned to allow Mr Macara to consider whether to withdraw from acting.

8 August 2007: At the fifth hearing, the case was adjourned to 19 September 2007 to allow further psychiatric evidence to be obtained.

3 September 2007: A letter dated 3 September 2007 from Mr Macara QC was received, enclosing a report by Dr Ellison (confirming that the petitioner was able to give instructions) and stating that following Law Society advice he would be withdrawing from acting and would not attend on 19 September 2007.

13 September 2007: The petitioner made inquiries of Strathclyde Pension Fund about the amount of his pension if he were to retire.

19 September 2007: At the sixth hearing, there was no attendance by or on behalf of the petitioner. Mr Macara's letter dated 3 September 2007 was considered, together with other documents. A report which had been requested from Dr Baird, consultant psychiatrist, was not yet available. The hearing was adjourned to 4 December 2007.

4-6 December 2007: At the seventh hearing, there was no attendance by or on behalf of the petitioner. The report from Dr Baird stated inter alia that the petitioner had said that he would not attend the hearing as he did not think that he would be dealt with fairly. The misconduct tribunal decided that failure to make progress would be detrimental inter alia to the petitioner's health. The tribunal accordingly proceeded to hear evidence, namely (a) the written statements of TB concerning the alleged assaults; (b) oral evidence from three police officers (Sergeant Colin Shearer, Detective Constable McIlvaney, and Detective Constable Urquhart) who took statements from TB; (c) a written statement from Gerard McKenna, TB's brother, who described TB's injured face, her upset and distress, and her naming of the petitioner as the person who had assaulted her; (d) oral evidence from Dr DB, TB's former husband, to the same effect; (e) photographs of Pollokshaws Road; (f) oral evidence from the Scenes of Crime officer who took those photographs; (g) oral evidence from Clare Gormley, an eye‑witness to a confrontation on Friday 17 September 2004 between TB and the petitioner in Pollokshaws Road; (h) oral evidence from Norman Whyte, a taxi‑driver who collected TB on Saturday 18 September 2004, describing her injured face, her upset and distress, and her statements that she had been assaulted the previous evening in Pollokshaws Road by her boyfriend who was a serving police officer and a resident of Mearnskirk. The tribunal found allegation (1) not proved, and allegations (2) and (3) proved.

5 February 2008: At the disposals hearing, Mr Macara QC appeared on behalf of the petitioner.

6 February 2008: Notification of the disposal was given.

7 March, 4 April and 15 May 2008: Letters were sent by Mr Macara QC concerning the petitioner's appeal.

5 November 2008: The petitioner was advised by Strathclyde Pension Fund that he was entitled to claim retirement benefit.

15 May 2009: At the appeal hearing before the Chief Constable, Mr Macara QC appeared for the petitioner (who was absent), and presented the appeal.

23 July 2009: The Chief Constable issued his decision, refusing the appeal.

6 September 2009: The petitioner lodged a note of appeal to the PAT.

15 October 2009: At the full hearing before the PAT, the petitioner was present. Mr Macara QC presented the appeal on his behalf.

15 January 2010: By letter dated 15 January 2010, Mr Macara QC sought to introduce new evidence, namely the letter dated 20 December 2006 from the complainer TB.

29 May 2010: The PAT intimated that the TB letter would be sent to all PAT members, unless this proposal was challenged.

21 June 2010: The petitioner executed the form necessary to enable him to claim pension benefits. He also provided the necessary bank details, and claimed the maximum lump sum available as part of his pension.

29 June 2010: The PAT held a hearing in relation to the TB letter.

7 July 2010: A letter dated 7 July 2010 from "James Hendrix" to the Chief Constable requested information under the Freedom of Information Act about the training of officers for police officers' misconduct hearings.

15 July 2010: The petitioner began to receive benefits from Strathclyde Pension Fund.

5 August 2010: The Chief Constable replied to the letter dated 7 July 2010.

15 August 2010: The petitioner began to receive his pension from Strathclyde Pension Fund.

19 August 2010: A further request for information was made.

26 August 2010: A further reply was sent.

21 September 2010: A further PAT hearing was held to discuss the TB letter.

28 September 2010: The decision of the PAT was issued, refusing the appeal.

12 November 2010: The petitioner consulted with senior counsel.

9 and 23 December 2010, 11 January, 2, 7 and 8 February, 6 April 2011: There was correspondence with the Serious Organised Crime Agency, Central Scotland Police, and Tayside Police with FOI requests.

April 2011: Senior counsel's opinion became available.

May 2011: There were unsuccessful attempts to obtain funding from the Scottish Police Federation.

2 September 2011: A further opinion of senior counsel became available.

October ‑November 2011 and January 2012: There were further unsuccessful attempts to obtain funding from the Scottish Police Federation.

March 2012: Counsel was instructed to draft a petition for judicial review.

July 2012: The petition for judicial review was lodged and intimated.

7‑8 March 2013: The first hearing took place before Lord Boyd.

26 April 2013: Lord Boyd issued his opinion and dismissed the petition.

The remedies sought

[10] In statement 3 of the petition, the petitioner seeks declarator that (i) the misconduct hearing erred in finding the second and third allegations proved; (ii) the Chief Constable's decision to dismiss (based on those findings) was similarly an error in law; (iii) the Chief Constable's refusal of the petitioner's appeal was based on an error in law; and (iv) the decision of the PAT proceeded on errors in law. The petitioner also seeks certain orders, namely an order quashing the decisions referred to above; declaring that he ought to be reinstated, and if that is not feasible, such order or orders (including payment of damages) as seem to the court just and reasonable.

The pleadings

[11] The pleadings relating to mora, taciturnity and acquiescence include the following:

Statement 2 for the petitioner:

" ... [The respondents] are called upon to state what prejudice they would suffer if this application was granted that is due to any alleged delay by the petitioner in proceeding with this application, as opposed to the delay in disposal of the proceedings when they were responsible for the efficient disposal of the disciplinary hearings ... [page 10C] There is no prejudice to the respondents by any delay in this process commencing ..."

Answer 2 for the first respondent:

"... [page 22B] Almost 20 months elapsed before this petition was presented for warranting ... Due to the long passage of time in the present case, acquiescence can be inferred (Somerville v Scottish Ministers 2007 SC 140). Acquiescence can also be inferred from the fact that the petitioner drew down his police pension. The petitioner has been in receipt of his deferred police pension since 15 July 2010 ... [page 23B] Further explained and averred that the first respondent has proceeded on the basis that the decision of the Police Appeals Tribunal would not be challenged. He has arranged his resources on the basis that the decision would not be challenged. In these circumstances, the petition should be dismissed ... [page 23E] ... it would be contrary to the public interest in good administration to allow the petition to proceed in relation to the decision of the first respondent and the Police Appeals Tribunal ..."

Answer 2 for the second respondents:

"[page 27D of the reclaiming print] ... Admitted that the petition should be dismissed by reason of the petitioner's mora taciturnity and acquiescence. Admitted that in such an application all three elements must be satisfied. Admitted that neither prejudice nor reliance is [a] necessary element of such a plea. Admitted that the petitioner has delayed unreasonably in raising this petition following the conclusion of the Police Appeals Tribunal proceedings ... [page 29C] Admitted that the petitioner has acquiesced in the decision made by the first respondent. Admitted that due to the long passage of time in the present case, acquiescence can be inferred (Somerville v Scottish Ministers 2007 SC 140). Admitted that acquiescence can also be inferred from the fact that the petitioner drew down his police pension ... [page 30E] Admitted that prejudice and reliance are not necessary elements of a plea of mora taciturnity and acquiescence. Admitted that it would be contrary to the public interest in good administration to allow the petition to proceed in relation to the decision of the respondent and the Police Appeals Tribunal ... [page 35B] It is open to any party appealing to the second respondents to invite the tribunal to hear new evidence or to re-hear the evidence led previously. If the matter were to be remitted to the second respondents, it would be open to the petitioner to seek a re‑hearing. The petitioner would be entitled to give evidence and call and question witnesses: reference is made to regulation 15 of the 1996 regulations. As a result of his delay of 20 months in bringing this review, the recollection of the witnesses is likely to have deteriorated. It is not in the interests of justice that after an avoidable delay of 20 months such a situation should be brought about. It would be inconsistent with the finality of proceedings and proper administration of justice ..."

Pleas-in-law: The Chief Constable's first plea‑in‑law is in the following terms:

"1. The petitioner being barred by mora taciturnity and acquiescence from challenging decisions taken by the chairman of the misconduct hearing, by the first respondent and by the Police Appeals Tribunal, this petition should be dismissed."

The PAT's first plea in law is as follows:

"1. The petitioner being barred by mora taciturnity and acquiescence from challenging the decisions complained of, the petition should be dismissed."

Submissions for the petitioner

[12] Counsel for the petitioner submitted that the Lord Ordinary was wrong to sustain the pleas of mora, taciturnity and acquiescence. The plea was a form of personal bar, and the party advancing it had to demonstrate that he would suffer some form of prejudice if the plea were not sustained. The Lord Ordinary misdirected himself in paragraphs [12] to [13] in concluding otherwise. Three propositions could be drawn from the leading and well-established case, Assets Co Ltd v Bain's Trs (1904) 6F 692 (a 7-judge bench), namely (i) a party asserting the plea must demonstrate material prejudice in the event of the plea being repelled; (ii) the prejudice had to be averred on record; and thus (iii) a relevant plea required averments of a material alteration in circumstances to the detriment of the party taking the plea.

[13] The Assets Co Ltd authority had been applied in modern judicial review proceedings in Singh v Secretary of State for the Home Department 2000 SLT 533. In such proceedings, one manifestation of prejudice was detriment to good administration: the party pleading detriment to good administration required to point to some further administrative action taken in the belief that the decision in question had been acquiesced in. Cases of detriment to good administration tended to involve circumstances where scarce resources had been allocated (for example, milk quotas, or school places). In the present case, there was only a bald assertion of detriment to good administration. It was part of the PAT's daily work to deal with appeals or remits, while the Chief Constable had a multi‑million pound budget and thousands of employees.

[14] Lord Hope's obiter dictum in R (Burkett) v Hammersmith & Fulham B C [2002] 1 WLR 1593 at paragraphs 63 to 66 had been made in the context of an English judicial review with a mandatory 3‑month timebar. Lord Hope should not be construed as seeking to change 110 years of law in a single sentence. Even if he was, his comments were obiter: no argument on this point had been heard, and no authorities cited. Somerville v Scottish Ministers 2007 SC 140, paragraphs [91] to [94] was the high point of the respondents' position. However: (i) Any observations by Lord President Hamilton concerning prejudice and reliance were strictly obiter. (ii) The Assets Co Ltd case was not cited. Thus it would be unfair to suggest that Lord Hamilton had sought to re-write the law concerning mora taciturnity and acquiescence. In subsequent cases Lutton v The General Dental Council [2011] CSIH 61, Pocock's Tr v Skene Investments (Aberdeen) Ltd [2012] CSIH 61 and Portobello Park Action Group Association v City of Edinburgh Council 2012 SLT 1137, questions of detriment to good administration were considered. These cases did not contradict the approach advocated by the petitioner.

[15] In the present case, (1) there were no relevant averments of prejudice or detriment to good administration. Thus the Lord Ordinary erred in sustaining the plea. (2) Further the Lord Ordinary erred in his assessment of the history of events, which did not support a plea of mora taciturnity and acquiescence. The petitioner had actively sought both funding and legal advice. He had made FOI requests about the training of officers conducting disciplinary proceedings, which in effect amounted a challenge or a "speaking out" against the proceedings which had been taken against him. The requests were indicative of non‑acceptance of the disciplinary proceedings and their outcome. The drawing down of his police pension had been necessary as the petitioner had no other means of subsistence. The pension might arguably be inconsistent with reinstatement (although it was understood that matters could be adjusted), but it was not inconsistent with the challenging of the decision, and the seeking of reduction and damages. The reclaiming motion should be allowed, and the Lord Ordinary's interlocutor of 26 April 2013 recalled.

Submissions for the second respondents (presented by agreement before the first respondent's submissions)

[16] The Lord Ordinary was correct to hold that there was no requirement to show prejudice. In any event, the Lord Ordinary was correct to uphold the plea in the circumstances.

[17] Preliminary points: The petitioner had not attended any of the first instance hearings. It was not clear why. The petitioner had continuous legal representation; he was not struggling on his own without legal advice. He had appeared personally at the PAT hearings. The PAT had allowed the alleged letter of retraction from TB, and had not rejected it as coming too late.

[18] The current petition was not an action of damages. There was no authority supporting the proposition that a breach of public law obligations gave rise to an entitlement to damages. The petitioner sought the quashing of all the decisions (cf R (on the application of Shoesmith) v Ofsted [2011] ICR 1195 at page 1221, paragraph 97).

[19] Prejudice not required: Somerville v Scottish Ministers 2007 SC 140 provided the correct and authoritative statement of the law, consistent with preceding and subsequent decisions. Paragraph [94] of Somerville, and paragraph [23] of United Co‑operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831, established that no prejudice was required. Several consequences followed: (i) some good claims would not achieve a remedy because of delay in raising the action (cf the consequences of prescription and limitation); (ii) the test was not whether the interests of justice would be served by allowing the petitioner to air his grievances; (iii) the test did not turn on the merits of the underlying claim.

[20] Prejudice might be relevant if it existed, but it was not a prerequisite of the plea. The plea was based on the petitioner's conduct, i.e. whether he had delayed, not spoken out, acquiesced (United Co‑operative Limited at paragraph [29]). The authorities specifically referred to "acquiescence or prejudice" in the alternative (Halley v Watt 1956 SC 370, Maclaren, Court of Session Practice (1916); R (on the application of Burkett) v Hammersmith and Fulham Borough Council [2002] 1 WLR 1593; Somerville paragraphs [90] et seq; Uprichard v Fife Council [2000] Env L R 8 paragraphs [16] and [17]). The case of Lutton v General Dental Council [2011] CSIH 62 did not in fact decide whether or not prejudice was necessary.

[21] In Assets Co Ltd, the plea being considered was "mora and taciturnity" (and not "mora, taciturnity and acquiescence"). The defenders offered to show prejudice (page 703); as a result there was no debate about whether prejudice was an essential element in other cases. The judgments, when analysed, did not specify prejudice as a necessary prerequisite of the plea. Thus the case, properly understood, was not binding authority for the requirement of prejudice for a successful plea: rather the argument before the court had assumed, in the particular circumstances of that case, that prejudice must be shown. Such a construction was consistent with the line of authority comprising Burkett, Somerville, Halley, Uprichard, and United Co-operative Limited. Accordingly Lord Hope was correct in Burkett when he observed that "prejudice or acquiescence" was an element of the plea. Properly read, therefore, there had never been a specific requirement for prejudice in the authorities. Prejudice was available as one of two alternatives, namely "prejudice or acquiescence".

[22] Whether there were sufficient averments of prejudice: That said, senior counsel for the second respondents submitted that there were, in any event, sufficient averments of prejudice suffered by the PTA. As Lord Hope indicated in Burkett, it was a matter of good administration that any decision be challenged timeously. It was desirable to have certainty in the law. Furthermore, the petitioner had drawn his pension, without any reservation. Finally, if the petitioner were to be successful, there would have to be a re‑hearing. That was inconsistent with the principle of finality of proceedings. The petitioner would also receive an enhanced pension and back pay. This affected the PAT in that the PAT was operated by Strathclyde Police Joint Board who paid the pension.

[23] The plea in the circumstances of the present case: The petitioner had access to legal advice at all relevant times (cf the observations of Lord President Rodger at page 188H of King v East Ayrshire Council 1998 SC 182). By September 2010, no further factual investigations were required, as the petitioner and Mr Macara QC were fully aware of all the necessary facts. There was nothing justifying the 22‑month period which elapsed after the issuing of the decision on 28 September 2010. As for taciturnity, there had been no intimation of any intention to challenge the PAT's decision prior to service of the petition. The FOI requests did not amount to assertions of his claim. Thus there had been taciturnity as well as delay. Finally, the petitioner had contested the proceedings at first, second, and third instance. After the PAT decision, there had been 22 months of silence, during which the petitioner had access to legal advice. Viewed objectively, a reasonable observer would draw the inference that the petitioner acquiesced in the decision.

[24] Conclusion: The reclaiming motion should be refused, and the interlocutor of the Lord Ordinary adhered to.

Submissions for the first respondent

[25] Senior counsel for the Chief Constable adopted the second respondents' submissions, and advanced the following further arguments.

[26] There had been a serious assault on a member of the public. The petitioner had had numerous opportunities to attend hearings and to present his position. He had wilfully obstructed the disciplinary process, and now, at a very late stage, sought to criticise those proceedings.

[27] The PAT had the power to hold a re-hearing of all the evidence and submissions, and could compel the attendance of witnesses (in contrast with the misconduct hearing). Thus questions such as a challenge to the admissibility of hearsay evidence or the standard of proof could have been raised at the PAT.

[28] There was no entitlement to damages for some procedural irregularity by a public authority, unless there had been a breach of a right under the European Convention on Human Rights: but no such breach was averred. Thus the Court of Session, if it found in favour of the petitioner, might remit to the PAT with an order that the petitioner be found not to have been dismissed, and be found entitled to back pay (not damages). There seemed to be little point in the petition.

[29] The legal requirements of the plea: The Lord Ordinary was right to find that prejudice was not required (Somerville, Burkett). Prejudice was an alternative to acquiescence. Assets Co Ltd pre‑dated judicial review, and was thus a decision in a very different legal context. But in any event there was nothing in Assets Co Ltd to cause the court to reconsider what Lord President Hamilton said in Somerville. Thus the absence of prejudice was not fatal to the plea.

[30] As for acquiescence, that could be inferred from delay (King v East Ayrshire Council 1998 SC 182, Lord Rodger at page 188, 196C‑F; Singh v Secretary of State for the Home Department 2000 SLT 553 paragraphs [8] and [11]; Burkett [2002] 1 WLR 1593 paragraph 65; United Co‑operative Limited v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831, paragraphs [29] and [33]; Pocock's Trs v Skene Investments (Aberdeen) Limited [2012] CSOH 66 paragraphs [33] and [34]; Portobello Park Action Group Association v City of Edinburgh Council 2012 SLT 1137 paragraphs [13] to [16], paragraph [18]). Each case was a matter of fact and degree.

[31] The Lord Ordinary was therefore correct in his analysis of the law.

[32] The application of the plea in the circumstances: 22 months passed after the PAT's decision before the petition was lodged and intimated. The issues now sought to be raised (for example, the admissibility of hearsay evidence and the standard of proof) were not raised either in the misconduct hearing (2007), or the appeal to the Chief Constable (2009), or the appeal to the PAT (2009-2010). The PAT was an independent tribunal with the power to start afresh, to re‑hear evidence, and to hear arguments on admissibility and standard of proof. The delay in the present case was therefore major. As for taciturnity, the petitioner had actively challenged the allegations against him at the misconduct hearing, the appeal to the Chief Constable, and the appeal to the PAT. The PAT's decision was issued on 28 September 2010. Thereafter there was a period of total silence for 22 months. A reasonable person would be expected to speak out much earlier. The FOI requests could not assist, as they did not amount to speaking out in an assertion of his claim. The delay and silence in the present case, looked at objectively, yielded an inference of acquiescence. The petitioner had applied for and drawn his police pension without giving any intimation that he was seeking reinstatement.

[33] Thus the three elements required for the plea were satisfied. Esto prejudice was necessary, the Chief Constable had suffered prejudice. Obvious prejudice arose if the police force had to accept that the issues in the case could be re‑raised after 22 months.

[34] As a postscript, counsel submitted that if the view was taken that paragraphs [90] to [94] of Somerville had been wrongly decided, it might be necessary to convene a 5‑judge bench to consider that case and to overturn it if necessary.

Final reply for the petitioner

[35] A disciplinary hearing against a police officer had taken place at which he was neither present nor represented, and where the complainer (who attempted to withdraw her complaint but had, it was submitted, been made to continue) was not present. These were important features of this case. The respondents had not demonstrated any prejudice, should the plea of mora, taciturnity and acquiescence be repelled. The Assets Co Ltd case was the accepted authority, and was binding on the Court of Session. Assets Co Ltd had not been directly discussed in Somerville, while Burkett contained a throwaway word (namely "or") in a case where the court was dealing with a UK issue, not having been addressed on mora taciturnity and acquiescence by Scottish counsel. Prejudice was therefore required, and none was pled in the present case. In any event, there had not been silence and inaction. There had been FOI requests. There had been applications for funding. The court should be slow to adopt the approach that the petitioner had "given up". The reclaiming motion should be allowed.

Discussion
Whether prejudice required in every case

[36] There is a clear line of authority vouching the proposition that the plea of mora, taciturnity and acquiescence may succeed without the need for the party taking the plea to demonstrate that he has suffered, or will suffer, prejudice if the plea is not sustained.

[37] In 1916, Maclaren, Court of Session Practice (1916) explained at page 403:

"Mora, or delay, is not of itself a defence, unless the delay has been for such a period, and the circumstances are such, that prescription applies. It is, therefore, not a proper separate plea in law (Bain v Assets Co Ltd 1905 7F (HL) 104 per Lord Davey page 109) the proper expression of the plea being 'the action is barred by mora, taciturnity and acquiescence" (Assets Co Ltd v Bain's Trs 1904 6F 692 Lord Kinross page 705). The latter must be supported by an averment of facts and circumstances inferring prejudice or acquiescence (Lord Justice Clerk Inglis in Cowan v Lord Kinnaird 1865 4M 236 at page 241; Assets Co Ltd v Bain's Trs 1904 6F 692 per Lord Kinross page 705) and it is a plea to the merits and not a dilatory plea (Bicket v Morris 1866 4M (HL) 44 per Lord Cranworth page 51; Colvin v Johnstone (1890) 18R 115 [emphasis added]."

[38] In 1956, Lord President (Clyde) observed in Halley v Watt 1956 SC 370:

"... the proper expression of the plea [is] 'the action is barred by mora, taciturnity and acquiescence.' The latter must be supported by an averment of facts and circumstances inferring prejudice or acquiescence [emphasis added]"

[39] In the first decade of the twenty‑first century, the same view was expressed by Outer House judges as follows:

Lord Nimmo Smith in Singh v Secretary of State for the Home Department 2000 SLT 533 paragraph [11] - a judicial review case - stated:

" ... The plea is necessarily protean and it must depend on the particular circumstances of the case whether or not its requirements are satisfied. There may 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. Usually, there will have been such alteration of position on the part of one of the parties, or of third parties, as, together with the passage of time, to yield the inference of acquiescence. The petitioner may, however, be in a position to put forward an explanation for the delay sufficient to rebut the inference. The concept of detriment to good administration appears to me to have a part to play in all of this, not as an abstraction but where further administrative action has been taken in the belief that the decision in question has been acquiesced in ... [emphasis added]"

[40] Lord Bonomy in Uprichard v Fife Council [2000] Env LR 8, paragraphs 16 and 17 - a judicial review case - observed:

"There was no dispute ... that delay and acquiescence or delay combined with prejudice were each proper bases for the court to refuse a remedy ...there is no Scottish authority in which a petition for judicial review has been refused on the ground of delay alone in the absence of acquiescence or prejudice [emphases added]"

[41] Lord Glennie in United Co‑operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 841, paragraph [29] - a judicial review case - noted:

"...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 ..."

[42] In R (Burkett) v Hammersmith and Fulham London Borough Council and another [2002] 1 WLR 1593, Lord Hope of Craighead noted at paragraphs 63 to 66:

"63 The principle protection against undue delay in applying for judicial review in Scotland is not to be found ... in any statutory provision but in the common law concepts of delay, acquiescence and personal bar: see Clyde & Edwards, Judicial Review, para.13.20. The important point to note ... is that there is no Scottish authority which supports the proposition that mere delay (or, to follow the language of CPR r 54.5(1), a mere failure to apply 'promptly') will do. It has never been held that mere delay is sufficient to bar proceedings for judicial review in the absence of circumstances pointing to acquiescence or prejudice ... [emphasis added]

64 On the other hand it has repeatedly been acknowledged that applications in such cases should be brought as speedily as possible. Ample support for this approach is to be found in the well-known observations of Lord Diplock in O'Reilly v Mackman [1983] 2 AC 237, 280-281 to the effect that the public interest in good administration requires that public authorities and third parties should not be kept in suspense for any longer period than is absolutely necessary in fairness to the person affected by the decision: see also R v Dairy Produce Quota Tribunal for England and Wales, ex p Caswell [1990] 2 AC 738

65 In Ex p Caswell [1990] 2 AC 738, 749-750 Lord Goff of Chievely said that he did not think that it would be wise to attempt to formulate any precise definition or description of what constitutes detriment to good administration. As he pointed out, the interest in good administration lies essentially in a regular flow of consistent decisions and in citizens knowing where they stand and how they can order their affairs. Matters of particular importance, apart from the length of time itself, would be the extent of the effect of the relevant decision and the impact which would be felt if it were to be reopened. These observations, which were made in the context of an application to the extend the period under RSC Ord 53, r 4(1), are consistent with the Scottish approach to the question whether the application should be allowed to proceed. The question whether the delay amounts to acquiescence or would give rise to prejudice such as to bar the remedy is inevitably one of fact and degree [emphasis added].

66 ... in my opinion the factors which are relevant to a plea of mora, acquiescence and taciturnity in Scottish practice provide an appropriate context for the taking of decisions on this point. They provide a sufficiently clear and workable rule for the avoidance of undue delay in the bringing of these applications, as experience of the operation of judicial review in Scotland has shown. I do not think that it would be incompatible with his Convention rights for an applicant who must be taken to have acquiesced in the decision which he seeks to bring under review, or whose delay has been such that another interested party may be prejudiced, to be told that his application cannot proceed because he has delayed too long in bringing it [emphasis added]."

[43] Finally, a more recent statement of the law comes from Lord President Hamilton in Somerville v Scottish Ministers 2007 SC 140 at paragraphs [92] to [94]. After reviewing the relevant cases, including Singh v Secretary of State for the Home Department 2000 SLT 533 (and in so doing, expressly quoting from Assets Co Limited v Bain's Trustees) the Lord President stated:

"[94] In considering the submissions we remind ourselves, in the first place, of the meaning of the words of the plea. Mora, or delay, is a general term applicable to all undue delay (see Bell, Dictionary, sv 'Mora'). Taciturnity connotes a failure to speak out in assertion of one's right or claim. Acquiescence is silence or passive assent to what has taken place. For the plea to be sustained, all three elements must be present. In civil proceedings delay alone is not enough; the position in criminal proceedings may be otherwise (see Robertson v Frame, per Lord Rodger of Earlsferry, para 37). We have quoted the passage from Lord Nimmo Smith's opinion in Singh v Secretary of State for the Home Department, approved (albeit obiter) by Lord Hope in Burkett, because counsel were agreed that this was the fullest treatment of the subject in judicial review cases. While we are content to adopt it, 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. By its nature, acquiescence is almost always to be inferred from the whole circumstances, which must therefore be the subject of averment to support the plea ..."

[44] In our opinion, the line of authority referred to above supports the proposition that the plea of mora, taciturnity and acquiescence may succeed if the first two elements are established (namely mora and taciturnity) and then either prejudice or acquiescence can be inferred from the facts and circumstances. So the inference may be one of acquiescence on the part of the person against whom the plea is taken, or prejudice suffered by the party relying upon the plea, or, of course, both acquiescence and prejudice.

[45] The Oxford English Dictionary defines the verb "to acquiesce" as "to agree tacitly, to concur in; to accept (the conclusion ... of others)", while the Chambers Dictionary defines it as "to rest satisfied or without making opposition; to assent". Many situations may be envisaged which give rise to an inference of acquiescence without there being any prejudice on the part of the person tendering the plea.

[46] Nevertheless counsel for the petitioner invited this court not to follow the foregoing line of authority in view of the 7‑judge decision of Assets Co Ltd v Bain's Trs (1904) 6F 692 which, it was contended, is binding upon this court. It is necessary therefore to examine Assets Co Ltd v Bain's Trs in some detail. That case concerned the liquidation of the City of Glasgow Bank. The contributories were called upon to make good the shortfall in the funds available for creditors in the liquidation. One such contributory, Mr Bain, gave a statement of his financial affairs in which his assets were understated. On the basis of that statement, the court, in 1879, sanctioned a financial compromise and discharged Mr Bain upon his contributing to the bank a much lesser sum than he would have had to pay if his assets had been accurately disclosed. Mr Bain subsequently died in 1882. Some 25 years after the compromise and discharge, on discovering that Mr Bain had understated his assets, the Assets Co Ltd, which had taken over the assets of the City of Glasgow Bank, raised an action against the late Mr Bain's testamentary trustees, seeking reduction of the court's interlocutor approving the compromise and discharge. The Assets Co maintained that they had not known of the understated value of Mr Bain's estate until shortly before they raised the action. The trustees took a plea of "mora and taciturnity" (i.e. two of the three elements only). As was noted by Lord President Kinross at page 705 (with whom the Lord Justice Clerk agreed at page 711), the plea, as it stood, was ineffective (cf similar observations on that matter by Lord Young at page 711, Lord Kinnear at page 732, and Lord Moncreiff at page 748). Something more was required, and in this particular case (where the creditor's lack of knowledge about the inaccuracy of the financial statement meant that a reasonable observer could not say that the creditor had, over the years, acted in such a way as to appear to acquiesce in matters: cf Lord Trayner's second proposition at page 740), there appeared to be general agreement amongst counsel and judges that the defenders would have to show that the passage of time coupled with silence and inaction was such that they would suffer prejudice if the plea of mora and taciturnity were not sustained.

[47] Counsel's arguments relating to mora are of interest. The argument for the pursuers (the Assets Co) at page 701 notes specifically that:

"The pursuers raised their action immediately they knew of their claim, and they were under no duty to know it sooner. There was no duty on them to suspect fraud, and the mere existence of the means of finding it out was not sufficient, and the onus was on the defenders to show when the pursuers knowingly began to forbear from following out their known claim."

The argument for the defenders at page 703 included the following:

" ... From the delay which had occurred since the pursuers had the means of prosecuting their claim abandonment was to be presumed, but mora was a good defence not only when abandonment was to be presumed, but wherever it had caused, as here, such a change in the circumstances of the defenders as to make it inequitable that the claim should be enforced against them. The defence had been prejudiced, because no surviving witness could have the accurate recollection he would have had if the matters he had to speak to had been recent, and there had been material loss of evidence in the destruction of Bain's papers and in the death of Mr Jamieson ... [emphases added]"

[48] Those submissions, in our opinion, acknowledge that an inference of "abandonment" (which we consider to be an equivalent of "acquiescence") may be sufficient to complete the three elements required for a plea of mora taciturnity and acquiescence (cf Lord President Kinross at page 705). But in the particular circumstances of Assets Co Ltd - no doubt because of the pursuers' unshakeable position that they had not known of the inaccurate statement of financial affairs until very recently - the defenders chose to rely upon the prejudice which they had suffered through the loss of evidence over a period of about 25 years.

[49] Against that background, we make the following observations about the 7‑judge decision in Assets Co Ltd.

[50] First, that particular case involved an assertion of lack of knowledge on the part of the pursuers who raised proceedings some 25 years later, all as described above. That lack of knowledge resulted from a statement made by the defenders' predecessor. In the light of that lack of knowledge, it would be difficult for the defenders to argue that there had been "abandonment" of a claim (or "acquiescence" in a certain situation) during those 25 years. The defenders appear to have chosen to prove prejudice, rather than to prove abandonment or acquiescence on the part of the pursuers. Accordingly we agree with counsel for the respondents that the debate before the seven judges proceeded on the basis of a general acceptance that the defenders in the circumstances of that case had to establish prejudice to make the plea of mora and taciturnity effective. Thus the possible alternative (acquiescence or abandonment) was not the subject of the court's ruling in that case.

[51] Secondly, the case of Assets Co Ltd was taken into account by the learned author of Maclaren, Court of Session Practice (see paragraph [37] above) and by Lord President Hamilton in Somerville (see paragraph [43] above). With Assets Co Ltd in mind, they reached the conclusions they did.

[52] Thirdly, the present case is a judicial review, a procedure not available at the time of Assets Co Ltd. Judicial review carries with it certain distinctive features, including a well-understood requirement that any petition should be raised promptly: cf Lord President Rodger in Swan v Secretary of State for Scotland 1998 SC 479, at page 4897, Lord Hope in Burkett, cited in paragraph [42] above; Tonner v Reiach and Hall 2008 SC 1 at paragraph [114]; United Co-operative Ltd at paragraph [30].

[53] In the result, therefore, we are not persuaded that Assets Co Ltd can be relied upon as a binding authority for the proposition advanced by the petitioner in this case on its particular facts.

The application of the plea in the circumstances of the present case

[54] Mora: Whether the passage of time amounts to mora is a question of fact and degree. As Lord Glennie noted in United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 841 paragraph [30]:

"Mora simply means delay beyond a reasonable time. What is a reasonable time will depend on all the circumstances ... In assessing what is a reasonable time, account must, of course, be taken of the complexity of the matter, and the need to take advice, gather information, and draft proceedings. In some cases, this will require considerable time ..."

[55] We accept that in certain cases, periods of some considerable length have been held not to constitute mora. For example, in Pocock's Trs v Skene Investments (Aberdeen) Ltd [2012] CSIH 62, a period of over 4 years was in issue. There a trustee in bankruptcy had to investigate complex circumstances with little co‑operation from the bankrupt. By contrast in the present case, the petitioner was not faced with any lack of knowledge or lack of co‑operation. He knew the facts. He knew the allegations. He had consulted with his lawyers on many occasions during 2007‑2010. Furthermore he had access to lawyers during the 22 months following upon the PAT's decision on 28 September 2010 (cf observations of Lord President Rodger in King v East Ayrshire Council 1998 SC 182 at page 188H). Thus in the circumstances of this case, we are satisfied that the 22 months following upon the issuing of the PAT's decision on 28 September 2010 constitute mora.

[56] Taciturnity: Taciturnity has been defined (United Co-operative Ltd, paragraph [32]) as:

" ... a failure to speak out in assertion of a right or claim when a reasonable person in that position would be expected to speak out."

The petitioner did not speak out in assertion of his right or claim following upon the PAT's decision on 28 September 2010. From the point of view of the Chief Constable and the PAT, that decision was followed by silence. We do not consider that private consultation with a solicitor or counsel, or FOI requests to police forces or other bodies concerning the training of officers conducting disciplinary hearings, can be viewed as speaking out in assertion of the petitioner's claim.

[57] Acquiescence or prejudice: Again we refer to United Co‑operative Ltd at paragraph [33]:

"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 petitioners' inaction and silence. The question is how the matter would have appeared to a reasonable person observing the petitioners' conduct, knowing of all the circumstances of which the petitioners knew or ought to have known when acting in the way they did."

[58] In this particular case, we leave out of account the drawing down of the petitioner's police pension, as we accept that he had no other means of subsistence. That said, we consider that the passage of the 22 months following upon the issuing of the decision of the PAT on 28 September 2010 against a background of the hearings and appearances in 2007‑2010 gave rise to a clear inference of acquiescence in (or tacit acceptance of) that decision. There was no contact or intimation by the petitioner expressing dissatisfaction with or a challenge to what had taken place. In our opinion, the 22 months following upon the decision of 28 September 2010 which represented the culmination of over three years of disciplinary hearings, appearances, and appeals, when viewed objectively by a reasonable observer, could not but be seen as tacit consent to or acquiescence in that decision. Accordingly we are satisfied that the respondents have established the third element ("prejudice or acquiescence") necessary for a plea of mora, taciturnity and acquiescence.

[59] Conclusion: It follows that the respondents' pleas of mora taciturnity and acquiescence were correctly sustained by the Lord Ordinary. That conclusion is, in our view, in keeping with the observations made by Lord Goff of Chievely and summarised by Lord Hope in paragraphs 65‑66 of Burkett as follows:

"65 ... the interest in good administration lies essentially in a regular flow of consistent decisions and in citizens knowing where they stand and how they can order their affairs. Matters of particular importance, apart from the length of time itself, would be the extent of the effect of the relevant decision and the impact which would be felt if it were to be reopened ...

66 ... I do not think that it would be incompatible with his Conventions rights for an applicant who must be taken to have acquiesced in the decision which he seeks to bring under review ... to be told that his application cannot proceed because he has delayed too long in bringing it ..."

[60] That is sufficient for the disposal of the reclaiming motion. For completeness, we add obiter that, had we considered it necessary that the party advancing the plea had to demonstrate prejudice on his part were the plea not to be upheld, we would not have been satisfied that sufficient prejudice had been shown by either respondent.

Decision

[61] For the reasons given above, we shall refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary dated 26 April 2013 dismissing the petition. We shall continue the question of expenses to enable parties to address us on that matter.