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Cite as: [2017] CSOH 140, [2017] ScotCS CSOH_140

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P545/17

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 140

OPINION OF LADY STACEY

In the Petition

CHONG WANG

against

SCOTTISH MINISTERS

Petitioner: A Caskie; Drummond Miller LLP

Respondent: D Byrne; Scottish Government

Petitioner

Respondent

8 September 2017

[1] I heard this starred opposed motion within the vacation court. I gave an ex tempore

Opinion. This is a revised and expanded version of that Opinion.

[2] This is a Petition for judicial review, which comes before me on the petitioner’s

motion to allow a Minute of Amendment and to make other necessary orders in connection

with that Minute of Amendment should it be allowed. It is opposed by the respondent as

incompetent. The issue is whether it is competent for the petitioner to seek to amend the

Petition prior to permission to proceed being granted.

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[3] Counsel for the respondent argues that any such motion is incompetent in light of

section 27 B(1) of the Court of Session Act 1988 (the 1988 Act). The terms of that section are

as follows:

“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.”

Counsel for the respondent argued that moving a Minute of Amendment amounted to

‘taking proceedings’, which was prohibited by the section, as permission to proceed had not

yet been granted.

[4] Counsel for the petitioner submitted, that the case concerns a prisoner, who wishes

to move to the open prison estate. Thus Article 5(4) of the ECHR applies, which is to the

effect that matters of liberty of the subject, are to be brought before the court speedily.

Counsel for the petitioner reminded me of section 57(2) of the Scotland Act 1998 which is to

the effect that, there is no power for the Scottish Parliament to pass any legislation which is

not in accordance, with the rights of the subject, under Article 5(4), and indeed other articles

of the Convention. Counsel for the petitioner was careful to tell me that he did not argue

that anything in the 1988 Act as amended, is contrary to that provision, of the

Scotland Act 1998. Rather, he argued that as the provisions of the 1988 Act as amended and

the Rules of Court can be read so as to be in compliance with Convention rights, then, they

should be read in that fashion.

[5] The chronology is as follows. On 26 April 2017 the petitioner was told that he would

not progress at that stage to the open estate. He completed a complaints procedure which

Counsel assured me is necessary lest it be argued that he did not fulfil all of the avenues of

review open to him. His complaint was turned down. He applied for and got Legal Aid to

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raise the current petition which was lodged on 26 June 2017. After it was served, a new

decision was made by the respondent on 26 July 2017, also to the effect that the petitioner

would not progress to the open estate, but for different reasons from those in the decision

made in April 2017. The earliest date for release for the petitioner is 18 March 2018.

[6] On 17 August 2017, the respondent provided Answers to the Petition. In terms of the

Rules of Court, the papers should then have been considered by a Lord Ordinary, to decide

whether or not permission should be granted to proceed, and a decision should then have

been made, to grant or refuse said permission, or to hold a hearing before making the

decision. It was not, for reasons that are obscure to me, put before a judge and so no

decision had been made.

[7] On 24 August 2017 the agents for the petitioner drafted the Minute of Amendment,

and intimated it to the respondent. The Minute consists of averments about the decision

made on 26 July 2017. Counsel for the petitioner argued that the correct course was to allow

the Minute of Amendment. He agreed that the Petition as now lodged is otiose. The

Petition does not refer to the decision of 26 July 2017, which is the one which keeps the

petitioner out of the open estate at present. Instead it refers to the decision made on 26

April 2017, which has been superseded. Counsel for the petitioner argued that in all of these

circumstances, the correct remedy is to allow the Minute of Amendment, rather than to

require the petitioner to start again. He explained that starting again would cause delay and

expense. It would be necessary for the agents for the petitioner to visit him in prison and

obtain his instructions, to complete Legal Aid papers, and to apply for Legal Aid.

[8] Counsel for the petitioner referred to the case of RA v The Secretary of State for the

Home Department 2016 CSOH 182 in which Lord Boyd of Duncansby, held that amendment

at the stage of review of a decision to refuse permission to proceed under section 27B(1) is

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competent albeit that he stated that amendment would be allowed only in rare and

exceptional circumstances.

[9] In the case of RA v The Secretary of State for the Home Department a Lord Ordinary

refused permission to proceed. The petitioner sought a review of that decision and along

with his request for review, he lodged a Minute of Amendment and productions. The

purpose of the Minute, according to Counsel for the petitioner, was to respond to the

answers lodged for the respondent, and to introduce a new matter, not available at the time

of the lodging of the Petition, namely a decision made by the First-tier Tribunal in an

analogous case.

[10] His Lordship noted the terms of Rule of Court 24.1(2), to the effect that the principal

writ may be amended at any time before final judgment if necessary for determining the real

question in controversy between the parties. As permission had been refused and a request

for review made, his Lordship decided that the court’s judgment was not final, and so

amendment was competent. He made a passing reference to the case of B v Secretary of State

for the Home Department 2016 SLT 1220, noting the Opinion of the Lord President that the test

for permission to proceed set out in section 27B of the 1988 Act should be applied to any

Minute of Amendment. Lord Boyd of Duncansby held that the granting of permission is not

an iterative process, to be undertaken between the petitioner, the respondent and the court,

and that the lodging of a Minute of Amendment before permission has been granted should

not be seen, as an opportunity to correct flaws in the Petition. He opined that:

“… except in exceptional circumstances, it would only be where the minute of

amendment contained matters which were not known at the time of the lodging of

the petition that it would be right to allow a minute of amendment at the permission

stage.”

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Counsel for the petitioner relied on that case, and argued that it was absurd to require the

court to decide whether or not to grant permission to proceed on the basis of a petition

which was no longer accurate. Counsel for the petitioner submitted that there was no point

in refusing leave to amend and repeating the process with a fresh petition.

[11] In this case, there are answers from the respondent, which say that the decision

complained of has been overtaken by events, and that there is another decision. It seems to

me that when considering granting permission, any Lord Ordinary will look at the Answers

and if such averments are made by Counsel on behalf of the Scottish Ministers, no

Lord Ordinary is going to ignore them. Counsel for the petitioner would of course confirm

to the court that the answers were factually accurate. In those circumstances there seems

little chance of permission to proceed being granted. Counsel for the petitioner raised what

he described as a tentative possibility, that I might grant permission today. If I granted

permission, that would trigger an automatic period of adjustment which would allow him to

change, to use a mutual term, his pleading. But he was very careful to tell me, that it was

tentative and that he did not seek in any way to subvert the statute.

[12] Counsel’s argument then may be summarised thus. It is competent to amend at this

stage, and the most efficient way to proceed is to allow an amendment which would bring

the pleadings up to date. He relied on the case of RA v The Secretary of State for the Home

Department.

[13] Counsel for the respondent broadly agreed the chronology set out by Counsel for the

petitioner. He argued that it is incompetent to allow the Minute of Amendment because of

the terms of section 27B of the 1988 Act.

[14] Counsel for the respondent argued that the words of the section are clear. Moving a

Minute of Amendment must count as taking proceedings. This is prohibited by the words of

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section 27B(1). He went on to refer to various authorities to show that the court had no

power to alter an Act of Parliament in order to facilitate a procedural matter. The cases to

which he referred are as follows: Maitland petitioner 1961 SC 291; Newman Shopfitters Ltd v M

J Gleeson Group Plc 2003 SLT Sheriff Court 83; L petitioners (No 1) 1993 SLT 1993.

[15] Counsel for the respondent argued, that the cases make it plain, that the court cannot

try to subvert either the words of a statute or the meaning, as properly construed, of a

statute. He argued that the case of RA v The Secretary of State for the Home Department was, to

some extent, obscure; when pressed, he said that if Lord Boyd of Duncansby was holding

that it is competent to amend in the present situation, then he respectfully disagreed with

him.

[16] Reference was also made to an ex tempore decision given by Lord Brailsford in

June 2017 in the case of Novak v Scottish Ministers. Counsel produced a transcribed note

taken by Counsel, of the opinion. Lord Brailsford found it incompetent to amend at the

stage of a pre-permission judicial review.

[17] In a short reply, Counsel for the petitioner started to argue that, if Counsel for the

respondent was right, then no interim motions, for example, to prevent a person being

deported, could be applied for before permission to proceed was granted. Nor could a

petition ever be served, as he argued that the service would count as proceedings. I

indicated at that stage, that such an argument should have been raised by him in his

opening speech. He argued that it arose from Counsel for the respondent’s argument, but I

do not accept that. It was plain before the discussion started what the respondent’s position

was, and if Counsel for the petitioner wanted to argue the matter he should have done so at

the outset. Thus I did not hear Counsel’s full argument, and of course I reserve my position

on it. But I am bound to say, that it did not strike me that his undeveloped submission was

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plainly right. Had that been the position, then I would have considered hearing him in full

and asking Counsel for the respondent if he wanted another opportunity to reply. But it did

not strike me as plainly right. Rather it seemed to me, to be an extravagant submission.

[18] I prefer the arguments of Counsel for the respondent. I agree that the section in the

1988 Act as amended is plain in itself. It introduces a new step in judicial review. That step

is described as a requirement for permission, before anything happens, in the petition that

has been lodged.

[19] I note that the situation in the case of RA was slightly different from the situation

before me, in that permission had been refused and an application made for review of that

decision. I am not persuaded however that the plain words of the statute can be read as

Counsel for the petitioner contends they should be. In discussion, I tested with Counsel the

possibilities that might cause difficulty, if I am right, in saying this is not competent. For

example, a respondent could make a series of fresh decisions, thereby confounding the

petitioner ever getting the matter before a court. I do not suggest that the Scottish Ministers

would do so, but as a way of testing it, that would be possible. Counsel for the respondent

readily agreed that that would be an abuse of process, which could be dealt with by a

petition stating the history and arguing that it was an abuse of process. Similarly, I think

Counsel for the petitioner agreed that if a petitioner raised a matter in a petition, paid the fee

(or did not if he was fee exempt, but in theory paid the fee) and then attempted to get a

completely different matter before the court in the same petition, that would be something

that should not and would not be allowed. The difficulty of course is, in a case such as the

one before me, where no one is acting in bad faith, there is no question of a series of

decisions, and the matter that is complained of is, broadly speaking, the same matter, that is,

residual liberty of the petitioner. It is not, however, the same decision that is complained of.

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[20] I accept that Counsel for the petitioner was able to put forward an argument that it

would save time and trouble to allow the Minute of Amendment. But I do not accept the

further argument, that refusing the Minute of Amendment is absurd. It seems to me that it

amounts simply to this. A petition in which the petitioner complains of the operative

decision is required. The court is required to give a view whether the Petition should

proceed at all. If it does proceed then ultimately the court will be asked to adjudicate upon

it. There needs to be a petition, which sets out the grievance of the petitioner. I am

persuaded by Counsel for the respondent’s arguments, which are essentially on statutory

interpretation, that the statute is clear.

[21] In this case, the decision about permission had not been made. I decided that I

would make that decision. I refused permission. That decision was made on the basis of all

the information that was contained in the Petition and in the Answers. This Petition should

not proceed because there is no point in it proceeding. I am of the opinion that the

petitioner will have to lodge a fresh petition, to bring the matter he wishes to discuss before

the court.