EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 81
Lord Eassie Lord Menzies Lord Malcolm	P481/13   OPINION OF THE COURT   delivered by LORD EASSIE   in the cause     NIGEL ANTHONY HARDEN GRAY   Petitioner and Respondent;   against   ANDREW WATSON and OTHERS Respondents and Reclaimers   For Judicial Review _______________

 

Petitioner and Respondent:  Sandison QC;  Brodies LLP

Respondents and Reclaimers:  Dunlop QC;  CMS Cameron McKenna LLP

 

8 October 2014

 

Introductory

[1]        This reclaiming motion is brought in a petition for judicial review. It is brought, with the leave of the Lord Ordinary, at an early procedural stage. The interlocutor which the reclaiming motion brings under review is an interlocutor dated 31 May 2013 in which the Lord Ordinary, having heard parties, granted the interim orders sought by the petitioner in a motion enrolled before service of the petition.  At the time of hearing and deciding the motion for interim orders, answers had not been lodged by any of the responding parties, the time appointed for doing so not yet having expired. The primary issue in the reclaiming motion – reflecting the leading submission by the reclaimers to the Lord Ordinary, but not discussed by him to any detailed extent- is whether the invocation, by means of a petition for judicial review, of the supervisory jurisdiction of the Court of Session is competent in circumstances in which the foundation of the petitioner’s case is his contract of employment. 

[2]        The petitioner avers, and we do not understand it to be disputed, that by a written contract of employment dated 15 December 2006 between himself and a company then known as John S Braid & Company Limited – now known as Braid Logistics (UK) Limited and described in the schedule for service appended to the petition as the first “interested party” – he, Mr Gray, was employed as the managing director of that company, Braid Logistics (UK) Limited. We shall refer to that employing company as “BLUK”.  It is a wholly owned subsidiary of a company now known as Braid Group (Holdings) Limited but formerly – including the time spanning  December 2006 – known as Mountdown Limited.  We shall refer to Braid Group (Holdings) Limited as the “parent company”.  The parent company is listed in the schedule for service as the second “interested party”.  The persons listed in that schedule as “respondents” are five individuals.  They and the interested parties are the reclaimers in this reclaiming motion.  For simplicity however we shall adopt the first instance terminology of referring to them as the respondents and in that term we also include the interested parties.  Similarly we shall simply refer to the petitioner and respondent in the reclaiming motion as the petitioner.

[3]        Those of the respondents who are individuals are shareholders in the parent company.  The petitioner is also a shareholder in the parent company.  He avers that by reason of a shareholders’ agreement entered into in December 2006 his voting rights in the affairs of the parent company are restricted to 34.8175% of the voting rights; the remaining voting rights are seemingly held by the individuals who are respondents to the petition and a further individual, a Mr Allan Leddra, who is convened as the third “interested party”. 

 

The contract of employment

[4]        The terms of the contract of employment of the petitioner with BLUK are contained in a document which has been produced and is adopted in the petition brevitatis causa.

[5]        Clause 3.1 of the contract deals with termination by notice.  It enables either party to give 6 months’ notice of termination of the contract terminating on a date later than 15 December 2007. 

[6]        Clause 13.1 of the contract deals with termination by way of immediate dismissal.  It provides that the employer (BLUK) may terminate the contract of employment without notice or pay in lieu of notice if the petitioner:

“(a)      commits a material breach of the terms of conditions of this agreement or repeats or continues (after a written warning) any other breach of such terms and conditions;

 

(b)        commits any act of gross misconduct or is guilty of any conduct which may, in the reasonable opinion of the Board bring any Group Company into disrepute or which prejudicially affects the interest of any Group Company, whether or not the conduct occurs during or in the context of the Executive’s [the petitioner’s] Employment;…”

 

The term “Board” is defined in the definition clause as meaning:

“the Board of Directors of the Parent Company from time to time and includes any committee of the Board duly appointed by it”.

 

[7]        Clause 13.3 provides respecting suspension:

“In order to investigate a complaint against the Executive [the petitioner] of misconduct the Company [BLUK] may suspend the Executive on full pay for so long as may be necessary to carry out a proper investigation and hold any appropriate disciplinary hearing.”

 

[8]        For completeness it may also be noted that clause 13 deals with other matters of termination without notice, such as retirement by reason of age, or dismissal on grounds of ill health.

[9]        Somewhat later in the contract, after a number of provisions relating to the obligations of the petitioner during and after employment one finds clause 16.  It is in these terms:

“16.      Disciplinary and Grievance Procedure

 

16.1      There are no specific disciplinary rules or procedures applicable to the Executive.  Any matters concerning the Executive’s unsatisfactory conduct or performance will be dealt with by the Chairman of the Company.  An appeal against any disciplinary decision should be made by the Executive in writing to the Board, whose decision will be final.

 

16.2      If the Executive has any grievance relating to his Employment (other than one relating to a disciplinary decision) he should refer such grievance to the Chairman of the Board and if the grievance is not resolved by discussion with him it will be referred for resolution to the Board, which decision shall be final.”

 

The chairman of the board of BLUK at the time of the events averred in the petition to which we are about to turn was, it is averred, the petitioner. 

 

The events

[10]      It appears that for some time relationships between the shareholders in the parent company have not been entirely harmonious.  Against that background a question arose respecting the petitioner’s knowledge, and possible approval of, an alleged misuse of a customer’s expense account.  At a meeting of the board of directors of the parent company on 25 January 2013, a majority of that board, which did not include the petitioner, resolved to appoint a committee of the directors – Mr Andrew Watson and Mr Shane Watson (who are the first and second respondents) and Mr Leddra – to investigate the petitioner’s knowledge of or involvement in the alleged misuse of the expense account.  The results of that committee’s inquiries were reported to a meeting of the board of the parent company on 20 March 2013.  The petitioner avers that at that meeting the first and second respondents and Mr Leddra appointed themselves as members of the board of directors of BLUK.  But it is not said that their appointment was invalid, nor has the petitioner taken any steps to reduce that appointment.

[11]      On the following day, viz 21 March 2013, the second respondent (Mr Shane Watson) wrote to the petitioner on BLUK notepaper in his capacity as a director of BLUK, advising the petitioner that a further investigatory meeting with him was necessary and that meantime the petitioner was suspended in terms of clause 13 of the contract of employment from his employment as the managing director of BLUK.  It is further averred that “the majority of the [board of the parent company] further proposed that the conduct of any disciplinary proceedings which the second respondent [Mr Shane Watson] deemed appropriate was to be placed in the hands of the first respondent [Mr Andrew Watson]”.  The petitioner also avers – “None of those actions or proposals had been authorised by the board of [BLUK]”.  It is further averred that subsequently, on its being claimed by an employee that the first respondent (Mr Andrew Watson) might be “complicit in the misuse of the customer account in question”, the board of the parent company resolved that the roles of the first and second respondents be reversed.  Certain “disciplinary hearings” were then conducted by the second respondent (Mr Shane Watson).

[12]      By a letter dated 23 April 2013 the second respondent (Mr Shane Watson) writing as a director of BLUK intimated what is described in the petition as a “purported” decision that the petitioner was dismissed from his employment as managing director of BLUK, pursuant to clause 13.1(a) of the contract of employment on the grounds of either or both of gross misconduct or conduct which might bring BLUK into disrepute or prejudicially affect its interests or the interests of any group company.  The letter is long and detailed respecting the materials upon which that conclusion was reached and the reasons for reaching that conclusion.  However, for present purposes it is unnecessary to rehearse that detail.  In its penultimate paragraph the letter stated:

“You have the right to appeal my decision to summarily dismiss you.  If you wish to invoke your right to appeal you should set out in writing your grounds of appeal and email or send that to Michael McLaughlin, DWF Biggart Baillie within five working days of the receipt of this letter.  As matters stand, it is intended that Rick Bagely, Jeff Prowse and Garry Russell [the third, fourth and fifth of the individuals named as respondents in the schedule for service to the petition] have all agreed to form an appeal committee to hear any appeal that you wish to make.  They will first have to be appointed as directors of [BLUK].  I understand that Garry Ellery is taking the necessary steps to have those individuals appointed.”

 

The pleas-in-law
[13]      Since much of the contention before us, and before the Lord Ordinary albeit not treated in detail in his opinion, was directed to the question whether the circumstances disclosed any competent basis for invoking the supervisory jurisdiction of the Court of Session by means of a petition for judicial review it may be helpful to set out the pleas-in-law stated on behalf of the petitioner:

“1.       The purported decision by the Second Respondent to suspend the Petitioner which is complained of having been made without jurisdiction on his part so to do, et separatim having been made in circumstances of apparent bias against the Petitioner on his part, all as condescended upon, it should be reduced accordingly.

 

2.         The purported decision by the First Respondent to institute disciplinary proceedings against the Petitioner complained of having been made without jurisdiction on his part so to do, et separatim having been made in circumstances of apparent bias against the Petitioner on his part, all as condescended upon, it should be reduced accordingly.

 

3.         The purported decision by the Second Respondent to dismiss the Petitioner which is complained of having been made without jurisdiction on his part so to do, et separatism having been made in circumstances of apparent bias against the Petitioner on his part, all as condescended upon, it should be reduced accordingly.

 

4.         The Petitioner being reasonably apprehensive that, unless restrained from so doing, the Third, Fourth and Fifth Respondents will purport to exercise over him a jurisdiction which they do not possess, et separatim which will be exercised in circumstances of apparent bias against the Petitioner on each of their parts, all as condescended upon, they should be interdicted from so acting accordingly.

 

5.         In the circumstances, and having regard to the balance of convenience, the interim orders of suspension and interdict sought by the Petitioner should be granted.”

 

[14]      By way of amplification of the propositions in the pleas-in-law, and the approach of the petitioner to his contention that the state of the dispute requires him to invoke the supervisory jurisdiction we set out these averments[1]:

“The decisions (a) to suspend the Petitioner pending any investigation;  (b) to decide whether disciplinary proceedings were appropriate and (c) the conduct and determination of the disciplinary hearings were all quasi-judicial functions, requiring views to be taken on inter alia the credibility and reliability of conflicting accounts of fact, the assessment of the relevance and significance of documentary material alongside oral and written evidence, and the exercise of judgment as to the appropriate consequence of the facts initially alleged and ultimately held as established.  Quite apart from any other material procedural irregularity within the disciplinary process adopted by the majority of the Board of [the parent company], neither the First nor the Second Respondent is or was the Chairman of [BLUK].  Neither is or was authorised in any way by the Board of [BLUK] to act in room and stead of the Chairman in the exercise of the functions committed by the Petitioner’s contract of employment to the Chairman.  Neither is or was authorised in any way by the Board of [BLUK] to engage in any purported disciplinary proceedings whatsoever against the Petitioner.  Neither had, accordingly, any true power to exercise the jurisdiction conferred by the contract between [BLUK] and the Petitioner on the Chairman of [BLUK] to deal at first instance with any matters concerning alleged misconduct by the Petitioner.”

 

The interim orders

[15]      The interim orders sought and granted by the Lord Ordinary are in these terms:

“The Lord Ordinary, on the continued opposed motion of the petitioner and on cause shown ad interim:

 

1.         suspends the purported decision of the Second Respondent to suspend him from his position as Managing Director of the Company;

 

2.         suspends the purported decision of the First Respondent to convene a disciplinary hearing against him;

 

3.         suspends the purported decision of the Second Respondent to dismiss him from his position as Managing Director of the Company;  and

 

4.         interdicts the Third, Fourth and Fifth Respondents and any of them from purporting to constitute any appeal committee or conduct any appeal hearing in relation to the petitioner’s appeal against his purported dismissal;  and decerns.”

 

Parties’ positions in the reclaiming motion
[16]      In short summary, in advancing the reclaiming motion counsel for the respondents in the petition contended that these proceedings, being a petition for judicial review and thus based only on the supervisory jurisdiction of the Court of Session are incompetent.  The entire basis of the petitioner’s claims arises from his complaint that he had been summarily dismissed his employment as managing director of BLUK.  Every allegation in the petition arises from that contract.  If the petitioner had been wrongly dismissed, in breach of contract, he had a claim for damages.  If, whether in substance, or in procedural terms, he had been unfairly dismissed, the petitioner had protection under the employment legislation.  Whether the decisions complained of were properly authorised was a matter of the law of agency.  Any lack of agency might be ratified.  The petitioner’s appeal to “bias” or “breach of natural justice” was misplaced.  Such judicial review challenges were not part of employment law.  In deciding whether to dismiss an employee an employer was inevitably in the position of being a judge in his own cause and therefore “bias” was inherently present.  Apart from such procedural fairness requirements as might flow from the employment legislation, there was no common law requirement to accord an employee any hearing, let alone a “fair” hearing.  Whatever disciplinary procedures might be set out in the petitioner’s contract of employment – and the contract stated that no such procedures existed – they were no different from standard grievance procedures in employment relationships, which did not give rise to any resort to the supervisory jurisdiction.  In addition to West v Secretary of State for Scotland 1992 SC 385, reference was made to Blair v Lochaber District Council 1995 SLT 407;  Ridge v Baldwin and others [1964] AC 40;  and Sartor v P & O European Ferries (Felixstowe) Limited 1992 WL 895033. 

[17]      Counsel for the respondents further submitted that by granting the interim orders, the Lord Ordinary had effectively compelled the continuance of the employment relationship.  It was well established that the court would not compel the continuance of such a relationship.  In that respect, in addition to Ridge v Baldwin, reference was made to Geys v Société Générale [2012]UKSC 63;[2013] 1 AC 523 and Murray v Dumbarton County Council 1935 SLT 239. 

[18]      Further, the balance of convenience favoured the respondents.  The contention that judicial review was ever open was, at best, weak.  The court should not compel a continuing employment relationship, especially in circumstances in which misconduct of the kind in issue in this case was alleged and, if wrongly dismissed, the petitioner had all the other remedies available.  The employer had no equivalent remedies. 

[19]      For his part, counsel for the petitioner maintained that a petition invoking the supervisory jurisdiction was competent and appropriate in the circumstances of the present case.  That jurisdiction was directed to supervision or control of a power or decision to decide; and it was available also where that jurisdiction was conferred by contractual arrangement.  (cf:  West v Secretary of State for Scotland).  Counsel stressed that was important to appreciate that the petitioner was not contending that he had been dismissed wrongfully or unfairly.  The petitioner’s position was that his employer – BLUK – had not dismissed him at all.  The second respondent, Mr Shane Watson, had purported to dismiss him; but Mr Shane Watson had no authority to do so for the reason that he had no authority flowing from a decision of the board of the directors of BLUK to take that step.  It was accepted that if the board of directors of BLUK had resolved to dismiss the petitioner as managing director under the contract of employment that would not open up any recourse to the supervisory jurisdiction.  The contention was that no authority had been granted to Mr Shane Watson to undertake the step of dismissing the petitioner.

[20]      Accordingly, so ran the argument, there was an excess of jurisdiction in the purported suspension and dismissal of the petitioner by the second respondent, since he lacked any authority to do so.  There was a similar lack of authority, and therefore excess of power, in the decision of 21 March 2013 to suspend the petitioner from the exercise of his duties and to conduct disciplinary hearings as part of the investigation.  As respects the right of appeal referred to in the penultimate paragraph of the purported decision letter of 23 April 2013, it proceeded upon a misapprehension as to the proper appellate forum, which was the board of the parent company rather than particular individuals who would have to be appointed to the board of BLUK for that purpose.  There was therefore an excess of jurisdiction by purportedly appointing as an appellate forum a group of individuals who did not constitute the appropriate body in terms of clause 16 of the contract of employment.  While it was accepted that notwithstanding what had already occurred and notwithstanding the interim orders, the petitioner might be dismissed by his employer, the grounds of convenience favoured the granting of the interim orders. 

 

Discussion

[21]      The history, nature and scope of the supervisory jurisdiction were described at length in the opinion of the court delivered by the Lord President (Hope) in West v Secretary of State for Scotland 1992 SC 385.  At page 412 the court set out three propositions in its endeavour to define the competency of applications invoking the supervisory jurisdiction:

“1.       The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument. 

 

2.         The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the personal body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires.

 

3.         The competency of the application does not depend upon any distinction between public and private law, nor is it confined to those cases in which English law has accepted as amenable to judicial review, nor is it correct in regard to issues about competency to describe judicial review under Rule of Court 260B as a public law remedy.”

 

By way of explanation of those propositions the court then went on to emphasise certain points.  These included:

“(d)      Contractual rights and obligations such as those between employer and employee, are not as such amenable to judicial review.  The cases in which the exercise of the supervisory jurisdiction is appropriate involve a tripartite relationship between the person or body to whom the jurisdiction, power or authority has been delegated or entrusted, the person or body by whom it has been delegated or entrusted and the person or persons in respect of whose benefit that jurisdiction, power or authority is to be exercised.”

 

For our part we would also add that the supervisory jurisdiction of the Court of Session may be seen as a development of the nobile officium of the court and hence generally may only apply where no other remedy is available (cf:  Clyde and Edwards Judicial Review, chapter 3 and paragraph 8.05).  We did not understand there to be any material dispute respecting the law as stated in the exposition in West.  The issues relate to the application of that law in the circumstances of the present petition.

[22]      In judging whether the supervisory jurisdiction of this court is properly invoked, it is necessary to examine the nature of the act or decision under challenge as well as the basis of the challenge.  The present petition is directed against a number of decisions, which the petition describes as purported decisions. 

[23]      In chronological terms the first is the decision contained in the letter of 21 March 2013 suspending the petitioner from the duties of his employment.  The power to suspend is specifically provided for by clause 13.3 of the petitioner’s contract of employment.  Exercise of the power to suspend, in terms of that contract is a contractual right of the employer – BLUK.  An employer can exercise such a power through agents, such as others employed within the employer’s organisation; and, indeed, in the case of a juristic person, can only do so through the agency of an individual or a collective of individuals.  As counsel for the petitioner sought to underscore, the essential complaint made respecting the letter suspending the petitioner’s employment is that its author lacked the approval of and authority from  the board of directors of the employer.  Assuming such authority to be necessary (and we express no opinion on that) the complaint is essentially a matter of the law of agency, allied possibly with company law. Simply as a matter of language, it is no doubt possible to describe the unauthorised exercise of the mandate of an agent, or the total absence of mandate, as a want or excess of “power” or “jurisdiction”.  But in our view the question whether a step bearing to be taken by an agent is within or outwith the powers conferred by the principal does not come within the concept of a jurisdiction or power of decision in a tripartite relationship which would be amenable to the supervisory jurisdiction. The relationship- the power to suspend - is unquestionably a bilateral contractual relationship.

[24]      Similar considerations apply in so far as the petitioner seeks to impugn the decision contained in the letter of 23 April 2013 from BLUK, signed by Mr Shane Watson as a director of BLUK, dismissing the petitioner.  Clause 13.1 of the petitioner’s contract of employment entitled BLUK to dismiss the petitioner without notice on the grounds of, put shortly, misconduct.  The contention that Mr Shane Watson was not authorised by the board of directors of BLUK to take that decision likewise raises issues of the law of agency in the purely bilateral relationship between employer and employee. 

[25]      Further a decision on the nature and extent of any investigation of suspicions or allegations of misconduct or other behaviour on the part of the employee, and the identity of those who might conduct those investigations or inquiries, is a matter for the employer.  As counsel for the respondent submitted, there is no obligation at common law for an employer to carry out any form of inquiry;  the employer is not acting in any quasi-judicial fashion and is necessarily partisan.  If sued for wrongful dismissal, the employer will no doubt require to establish that the claimed misconduct occurred.  Under the employment legislation, an employer risks a finding of unfair dismissal if his investigations are judged by the Employment Tribunal on complaint to it, to be inadequate; but that does not convert such investigations and the functions of those whom the employer selects to carry out those investigations into a “quasi-judicial” function attracting the supervisory jurisdiction.  The remedy for inadequacy is the claim for unfair dismissal.  Since such requirements for fairness and adequacy of any investigation or examination of the circumstances prompting dismissal flow from a statute and the statute provides its remedy, recourse to the supervisory jurisdiction is excluded.  Moreover the conduct of the dismissal procedure is essentially a bilateral, and not a tripartite, relationship.  Accordingly in so far as it is contended that those investigating the position of the petitioner were carrying out a “quasi-judicial” function we consider that contention to be misplaced.

[26]      The petition also challenges that aspect of the letter of 5 April 2013 which informed the petitioner that as part of the employer’s investigation it was proposed to include a disciplinary hearing to be attended by various people, including, if he chose to participate, the petitioner.  In so far as it is contended that this step required to be authorised by the board of BLUK, and was not so authorised, one is again in the field of the law of agency, in the context of company governance.  As we have already set out in the preceding paragraph of this opinion, the measures selected by an employer to investigate the conduct of an employee do not involve the conferring of quasi-judicial functions and do not involve the exercise of the supervisory jurisdiction of the Court of Session. 

[27]      That said, as we understand it, the petitioner also argues that any investigation into his conduct, including the giving to the petitioner of an opportunity to attend a “disciplinary hearing”, is a matter governed by clause 16 of the contract of employment.  For the convenience of the reader we repeat its terms:

“16. Disciplinary and Grievance Procedure

 

16.1      There are no specific disciplinary rules or procedures applicable to the Executive.  Any matters concerning the Executive’s unsatisfactory conduct or performance will be dealt with by the Chairman of the Company.  An appeal against any disciplinary decision should be made by the Executive in writing to the Board, whose decision will be final.

 

16.2      If the Executive has any grievance relating to his Employment (other than one relating to a disciplinary decision) he should refer such grievance to the Chairman of the Board and if the grievance is not resolved by discussion with him it will be referred for resolution to the Board, whose decision shall be final.”

 

[28]      The first point to be noted is that the clause states that there are no specific disciplinary rules or procedures applicable to the petitioner.  The clause goes on to state that any matters concerning the petitioner’s unsatisfactory conduct or performance will be dealt with by the chairman of BLUK.  But since the petitioner holds, or at the relevant time held, the office of chairman, that provision plainly could not be followed.  However, the employer is BLUK and not the chairman [ie the petitioner].  And in its investigations as to whether the employee may have been guilty of misconduct the employer is not confined only to an inquiry by the chairman.

[29]      We have reservations as to whether, on a proper reading of the contract, clause 16 has any application to a decision by the employer (BLUK) to dismiss without notice under clause 13(1).  The latter (clause 13.1) makes no reference to clause 16 or any interposition of the board of the parent company.  The “finality” of the decision of the board of the parent company could not be finality in the sense of excluding the jurisdiction of the courts of the employment tribunals; but equally it is difficult to see that finality provision as qualifying the central right of the employer to dismiss, particularly when the clause relating to the employer’s entitlement to dismiss without notice makes no reference to clause 16.  In our provisional view the natural reading of the provision is that it is concerned with internal measures within the employer’s undertaking and does not confer any discrete, independent jurisdiction requiring control by this court in the exercise of its supervisory jurisdiction. 

[30]      Be that as it may – and accepting that there may be on the petitioner’s contention a question as to the authority of the agent of the employer, BLUK – there is in our view nothing inherently wrong in the agent of the employer who is prospectively exercising a delegated power of dismissal offering an “appeal” against his decision to other named individuals.  The petitioner may choose to accept or decline that offer of an appeal to the views of those individuals.  But in so far as the petitioner wishes to ignore that invitation and insist on what he conceives to be his right under clause 16 that the question of the existence of misconduct on his part be referred to the board of the parent company, such insistence is a matter of contractual entitlement.  The fact that the employer may have chosen to offer another avenue of appeal does not transform the relationship from a bilateral one of employer and employee into a tripartite relationship of a conferred jurisdiction within the concept of the supervisory jurisdiction of this court.  Put another way, while it might conceivably be said that the terms of clause 16 envisage the conferring of a power on the board of the parent company in respect of dismissal, this petition is not concerned with exercising or controlling the powers of that board.  It is not said that the board is in any way exceeding its powers or acting improperly. 

[31]      In these circumstances, while Mr Sandison presented the case for the petitioner with his customary considerable powers of persuasion, on analysis we are ultimately not moved.  There is in our view no competent invocation of the supervisory jurisdiction justifying proceedings under a petition for judicial review. 

[32]      We are of course conscious that Rule of Court 58.12 gives a measure of procedural flexibility, in the case in which a petitioner may have erroneously selected a remedy by way of a petition for judicial review, to the extent of enabling a Lord Ordinary, after hearing parties on the matter, to direct that the case continue as an ordinary action.  While there might be some attraction in the view that this was such a case, we have ultimately come to the conclusion that it would not be expedient to remit to the Lord Ordinary with a view to his possibly exercising the powers under that Rule of Court.  It frankly appears to us to be difficult to convert, by the relatively brief minute envisaged under that Rule, the present petition proceedings for judicial review on the basis of a supervisory jurisdiction which does not exist into a competent, relevantly pled, action under ordinary procedure properly based on employment law questions.  It is ultimately not a matter simply of form, but of substance since, as the pleas for the petitioner make clear, the remedies sought are based  wholly on the, in our view misplaced, notions of the conferment or exercise of some jurisdiction or power amenable to the supervisory jurisdiction. The pleadings would require to be re-written in a very substantial way.  Further, the present petition convenes as respondents or “interested parties” persons who would not, in the face of matters, be partly to an ordinary action founded on contractual remedies.

[33]      In these circumstances we grant the reclaiming motion, recall the interlocutor of the Lord Ordinary and dismiss the petition as being incompetent since the supervisory jurisdiction of the Court of Session is not properly invoked.