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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lady Clark of Calton

[2017] CSIH 62

P697/16

OPINION OF THE COURT

delivered by LADY CLARK OF CALTON

in causa

WILLIAM FREDERICK IAN BEGGS

against

SCOTTISH MINSTERS

Petitioner: K Campbell QC; Drummond Miller LLP

Respondents: Byrne; Scottish Government Legal Department

Petitioner

Respondents

11 October 2017

Summary

[1] The petitioner made an application for Judicial Review challenging certain matters in

relation to the way in which his correspondence was dealt with during a period of custodial

sentence in prison. The application for Judicial Review is subject to the provisions in

sections 27A-D of the Court of Session Act 1988 (“the 1988 Act”). The petitioner applied to

the court for permission for the application to proceed in terms of section 27B. Following an

oral hearing, the Lord Ordinary, in his opinion dated 6 July 2017, granted permission to

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proceed in respect of two distinct issues. He refused permission to proceed in respect of

other matters advanced on behalf of the petitioner at the oral hearing. There is provision in

section 27D(2) for appeal by a person making the application within a time limit of 7 days

beginning with the day on which the court made its decision. The petitioner enrolled a

motion on form 23.2 seeking various orders to progress what was described as “the

Reclaiming Motion”. This motion came before the court in terms of Rule of Court 38.12(5)(a)

to consider the opposed motion. In particular the court was invited to decide, in the event

that the motion was marked out of time by one day, whether it was competent for the court

to exercise discretion in terms of Rules of Court 38.8(d) and 38.10 to allow the Reclaiming

Motion to be received although one day late.

The Relevant Statutory Context

[2] Significant changes to the procedure of judicial review were introduced in Scotland

by section 89 of the Court Reform (Scotland) Act 2014 (“the 2014 Act”). Section 89 specified

that sections 27A-D of the 2014 Act be inserted after section 27 of the Court of Session

Act 1988 (“the 1988 Act”). The most important provisions relate to new time limits, a

requirement specific to Judicial Review for what I describe as a threshold criteria for such

proceedings, namely permission by the court for an application to proceed and new

provisions for challenging a decision of the court refusing permission. For convenience I set

out the provisions as inserted into the 1988 Act in some detail:

“27A Time limits

(1) An application to the supervisory jurisdiction of the Court must be made before

the end of—

(a) the period of 3 months beginning with the date on which the grounds

giving rise to the application first arise, or

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(b) such longer period as the Court considers equitable having regard to all

the circumstances. ...

27B Requirement for permissions

(1) No proceedings may be taken in respect of an application to the supervisory

jurisdiction of the Court unless the Court has granted permission for the application

to proceed.

(2) Subject to subsection (3), the Court may grant permission under subsection (1) for

an application to proceed only if it is satisfied that—

(a) the applicant can demonstrate a sufficient interest in the subject matter of

the application, and

(b) the application has a real prospect of success.

(3) Where the application relates to a relevant Upper Tribunal decision, the Court

may grant permission under subsection (1) for the application to proceed only if it is

satisfied that—

(a) the applicant can demonstrate a sufficient interest in the subject matter of

the application,

(b) the application has a real prospect of success, and

(i) the application would raise an important point of principle or

practice, or

(ii) there is some other compelling reason for allowing the

application to proceed.

(4) The Court may grant permission under subsection (1) for an application to

proceed—

(a) subject to such conditions as the Court thinks fit,

(b) only on such of the grounds specified in the application as the Court

thinks fit.

(5) The Court may decide whether or not to grant permission without an oral hearing

having been held. ...

27C Oral hearings where permission refused, etc.

(1) Subsection (2) applies where, in relation to an application to the supervisory

jurisdiction of the Court—

(a) the Court—

(i) refuses permission under subsection 27B(1) for the application

to proceed, or

(ii) grants permission for the application to proceed subject to

conditions or only on particular grounds, and

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(b) the Court decides to refuse permission, or grant permission as mentioned

in paragraph (a)(ii), without an oral hearing having been held.

(2) The person making the application may, within the period of 7 days beginning

with the day on which that decision is made, request a review of the decision at an

oral hearing.

(3) A request under subsection (2) must be considered by a different Lord Ordinary

from the one who refused permission or granted permission as mentioned in

subsection (1)(a)(ii).

(4) Where a request under subsection (2) is granted, the oral hearing must be

conducted before a different Lord Ordinary from the one who refused or so granted

permission.

(5) At a review following a request under subsection (2), the Court must consider

whether to grant permission for the application to proceed; and subsections (2), (3)

and (4) of section 27B apply for that purpose.

(6) Section 28 does not apply—

(a) where subsection (2) applies, or

(b) in relation to the refusal of a request made under subsection (2).

27D Appeals following oral hearings

(1) Subsection (2) applies where, after an oral hearing to determine whether or not to

grant permission for an application to the supervisory jurisdiction of the Court to

proceed, the Court—

(a) refuses permission for the application to proceed, or

(b) grants permission for the application to proceed subject to conditions or

only on particular grounds.

(2) The person making the application may, within the period of 7 days beginning

with the day on which the Court makes its decision, appeal under this section to the

Inner House (but may not appeal under any other provision of this Act).

(3) In an appeal under subsection (2), the Inner House must consider whether to

grant permission for the application to proceed; and subsections (2), (3) and (4) of

section 27B apply for that purpose.

(4) In subsection (1), the reference to an oral hearing is to an oral hearing whether

following a request under section 27C(2) or otherwise.

28 Reclaiming.

Any party to a cause initiated in the Outer House either by a summons or a petition

who is dissatisfied with an interlocutor pronounced by the Lord Ordinary may,

except as otherwise prescribed, reclaim against that interlocutor within such period

after the interlocutor is pronounced, and in such manner, as may be prescribed.”

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The Rules of the Court of Session

[3] Within the Rules of the Court of Session there are no new specific rules tailored to

the sections 27A-D procedures. There is however a relevant provision to be found in

Rule 38.8(d) of Chapter 38. This rule states:

“Appeals Treated as Reclaiming Motions

38.8. In respect of the following appeals, the rules in this Chapter shall apply to

those appeals as they apply to reclaiming—

...

(d) an appeal from a decision of the Lord Ordinary concerning permission to

proceed in petitions for judicial review under section 27D of the Act of 1988 (appeal

following oral hearings).”

Chapter 38 makes general provision about reclaiming. In particular Rule 38.2 makes

detailed provision in a variety of circumstances for time limits for reclaiming under the

general heading of “Reclaiming days”. Rule 38.5 sets out the method of reclaiming and

states:

“(1) A party who seeks to reclaim against an interlocutor shall mark a reclaiming

motion by enrolling a motion for review in Form 38.5 before the expiry of the

reclaiming days. “

and detailed provision is made in Rule 38.5(2) about the documents to be lodged. Provision

is also made for reclaiming out of time in Rule 38.10 which states:

“38.10.—(1) In a case of mistake or inadvertence, a procedural judge may, on an

application made in accordance with paragraph (2), allow a motion for review to be

received outwith the reclaiming days and to proceed out of time on such conditions

as to expenses or otherwise as the judge thinks fit.

(2) An application under paragraph (1) shall be made by motion included in the

motion for review made under rule 38.5(1).”

[4] Various other provisions are made in Chapter 38 of the Rules including dealing with

objections to the competency of reclaiming, by any party other than the reclaimer, which is

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dealt with in Rule 38.12. In Rules 38.13 to 38.21, there are detailed provisions about

procedural matters and timetabling.

[5] In the rules relating to Judicial Review under the heading “The Permission Stage:

Appeals to the Inner House” Rule 58.10 states:

“58.10. An appeal under section 27D(2) of the Act of 1988 (appeals following oral

hearings) is made by reclaiming motion (see rule 38.8(d)).”

The Submissions of the Parties

[6] In the motion, as drafted, the petitioner sought to argue that the appeal was timeous

and was within the 7 day statutory period. There was an issue between the parties as to the

correct calculation of the 7 day period. But in oral submission it was conceded by counsel

for the petitioner, that on a proper interpretation of section 27D(2), the 7 day statutory

period expired at midnight on 12 July 2017, the Lord Ordinary’s Opinion having been

advised on 6 July. It was submitted therefore that the appeal was one day late. This was

accepted by the respondents. The parties joined issue on the question of whether it was

competent for this court to apply Rule of Court 38.10 and allow the appeal to proceed out of

time. In advancing their oral submissions counsel for both parties adopted their written

submissions. I summarise the submissions briefly.

Submissions on behalf of the Scottish Ministers, the Respondents

[7] Counsel for the respondents submitted that the reclaimer’s motion was misconceived

for three reasons. Firstly the time limit is a statutory time limit under section 27D(2) as

inserted in the 1988 Act and there is no discretion given in the statutory provisions to extend

the appeal time limit. The petitioner sought to rely on Rule of Court 38.8(d) but the court’s

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power to regulate its own practice and procedure, as set out in the Rules of Court, can only

be exercised in so far as it does not conflict with statute. Reference was made to Newman

Shopfitters Limited v MJ Gleeson Group Plc 2003 SLT (Sheriff Court) 83 at 88c; Maitland

petitioner, 1961 SC 291 at 293; L petitioner (No 1) 1993 SLT 1310; Anderson v HM Advocate;

Brogan v O’Rourke Limited 2005 SLT 29 at 35 E-G; Hepburn v Royal Alexandria Hospital 2011

SC 20. It was plain from the statutory innovations that Parliament intended that the new

procedure for Judicial Review be subject to a strict timetable. Counsel submitted secondly,

that on a plain reading of Rule of Court 38.10, the rule relates to the extension of reclaiming

days only. It is not a legitimate interpretation to equate the 7 day period allowed under

section 27D with “reclaiming days”. Thirdly the statutory context is consistent with a new

system in which there is no judicial discretion under the rules to extend the statutory time

limit.

[8] In conclusion, counsel submitted that in the event that the court concluded it was

competent to consider an extension under Rule of Court 38.10, he had no submissions to

make about the merits of such an extension and was content to leave that to the court.

Submissions by Counsel for the Petitioner

[9] Counsel for the petitioner submitted that the statutory appeal under section 27D did

not provide any detailed mechanism for an appeal. No permission to appeal is required. It

is plain from Rules of Court 38.10 and 38.8 that the mechanism provided for the statutory

appeal is that it is treated as a Reclaiming Motion and the Chapter 38 rules apply. That must

include the discretionary power under Rule of Court 38.10. On the face of the Rules of

Court, there is therefore a power for the court to allow the statutory appeal under

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section 27D to proceed, although late, if the court is satisfied that the conditions set out in

the rule are met. The application of Chapter 38 is unqualified. Counsel pointed out that if

there is no discretion in relation to the petitioner, there appears to be an inequality in that it

is only the petitioner who is excluded from reclaiming under section 28 of the 1988 Act. By

implication, a respondent is not so excluded and would be entitled to reclaim in the normal

way under section 28 of the 1988 Act which would include a right to rely on Rule of

Court 38.10. This would give an advantage to the respondent which would be unfair.

Counsel accepted that where primary legislation provided a complete code for appeal with a

time limit, the Rules of Court could not extend that time limit but that was not the situation

in this case. It is plainly envisaged that there would be further provisions and these are to be

found in Chapter 38 of the Rules of Court.

[10] In relation to the merits of the motion to extend, counsel invited the court to exercise

its discretion taking into account the reasons set out in the motion. In particular the appeal

application was only one day late; there were practical difficulties; there was no prejudice

to the respondents and in any event the case is to return to the Lord Ordinary for further

procedure in respect of other matters.

Decision and Reasons

[11] Sections 27A – 27D, which were inserted into the 1988 Act by section 89 of the

2014 Act, introduced an initial threshold criteria or barrier for a petitioner seeking to bring

an application to the supervisory jurisdiction of the court by way of Judicial Review. The

new statutory provisions restricted the right of a petitioner to raise any Judicial Review

proceedings regardless of merit or relevancy. There is no corresponding threshold at the

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initial stage in respect of a respondent seeking to lodge answers. As I read section 27D,

provision is made only for an appeal by the applicant seeking to bring the action in specified

circumstances. Counsel for the petitioner submitted that unless the rules were interpreted in

the way he put forward, this would lead to an imbalance as a respondent who wished to

appeal is not restricted by section 27D and could rely on section 28. I was not fully

addressed about the rights of a respondent but my initial view is that I am not persuaded

that there is an appeal for a respondent who is dissatisfied with the judicial decision

granting leave. The new statutory procedure is designed to tighten up time limits and give

the power to the court to “weed out” applications which do not fit the criteria set out in

section 27B(2). It is not designed to give respondents an opportunity to challenge at the

initial stage of proceedings a judicial decision that the action should proceed in whole or in

part. A respondent may make such a challenge in due course at a later stage. But even if a

respondent does have a right to appeal or reclaim with different time limits, I do not

consider than this assists the petitioner who appeals under statutory provisions.

[12] Section 27A introduced strict time limits albeit there is a specific dispensing

provision in section 27A(1)(b) but only in relation to time limits for applications. A review

provision in section 27C(2) sets out a strict time limit of 7 days to request review of a

decision at an oral hearing and it is made plain in section 27C(6) that in such a case, where

there has been a refusal of a request to review, reclaiming under section 28 does not apply.

This situation therefore is not covered by Rule of Court 38.8. I consider that such an

applicant who has had a refusal of a request to review, without an oral hearing, is left in a

position that the court has no power to extend the 7 day period or relieve the applicant from

a failure to apply timeously. Such an applicant therefore would have no further remedy

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regardless of compelling reasons which existed for the failure to request a review within the

period of 7 days.

[13] An applicant who has had the advantage of an oral hearing may take advantage of

the provisions in section 27D. The argument for the petitioner is that such a person is in a

better positon, than the applicant who had no oral hearing, if the restricted time period of

7 days is not obtempered because such appeals are to be treated as Reclaiming Motions and

therefore such an applicant can rely on Rule of Court 38.10. I consider that the problem with

this submission is that Rule of Court 38.10 is designed to relieve a party in certain

circumstances of a failure to comply with the rules relating to reclaiming days. The rules

relating to reclaiming days are to be found in Rule 38.2. I am unable to interpret this as

giving power to the court to relieve a party from the consequences of a failure to comply

with the 7 day period set out, not in the rules, but in the statutory provisions relating to

appeal.

[14] In addition in enacting section 27A, the Scottish Parliament plainly considered that

there might be a need for an equitable power to extend the time limit for application and

provided such a power in section 27A(1)(b) but no such provision appears in section 27D.

[15] Having carefully considered all the submissions by counsel for which I am grateful, I

have come to the conclusion that it is not competent for the court to exercise powers in

respect of this late application to appeal and in particular that Rule of Court 38.10 is not

applicable.

[16] I also observe that there does not appear to be a motion for review in this case under

Rule 38.5(1) as required by the Rules. No issue was taken about this by the respondents and

my decision does not take this into account.

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[17] If I had been entitled to deal with the merits of the motion, I would on balance have

refused to exercise my discretion in favour of the petitioner under Rule of Court 38.10. I

accept that there is an explanation for the delay, that the delay is minimal and that there is

no prejudice to the respondents. Nevertheless I consider that I am entitled to take into

account in the circumstances of this case the wider public interest requiring parties to

comply with the rules and the time limit is plainly stated. This new procedure is focused on

judicial control, within strict time limits, of applications to the supervisory jurisdiction of the

court. That wider public interest may of course give way to other important considerations

in appropriate cases. In the particular circumstances of this case I am not persuaded that the

balance falls in favour of the petitioner.

Decision

[18] For these reasons the motion in all its four parts is refused and, in terms of Rule of

Court 38.12(7)(a), I refuse the Reclaiming Motion as incompetent. I also observe that there

appears to be some tensions highlighted in this case between the primary legislation and the

Rules of Court which may merit further consideration.