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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> TAKEOVERS AND MERGERS, PETITION OF THE PANEL OF TAKEOVERS AND MERGERS AGAINST DAVID KING [2018] ScotCS CSOH_105 (14 November 2018)
URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_105.html
Cite as: 2018 GWD 36-443, [2018] ScotCS CSOH_105, 2018 SLT 1205, [2018] CSOH 105
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P341/17
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 105
OPINION OF LADY WOLFFE
In the petition
THE PANEL ON TAKEOVERS AND MERGERS
Petitioner and Minuter
against
DAVID KING
Respondent
For orders under section 955
Pursuer: Johnston QC, Turner; Dentons UK
Defender: J Mitchell QC; Lindsays
14 November 2018
Introduction and background
The legal issue
[1] This is an application by The Panel On Takeovers And Mergers (“the Panel”) asking
the court to find David King (“the respondent”) guilty of contempt of court by reason of his
failure, it is said, to obtemper the court’s interlocutor of 22 December 2017 (“the first
interlocutor”), as confirmed and varied by the interlocutor of the Inner House of the Court
of Session dated 28 February 2018 (“the Inner House interlocutor”), and which read together
with the first interlocutor, I shall refer to as “the Interlocutor”.
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2
[2] The matter called before me for debate on the issue of whether the Panel was obliged
first to obtain the concurrence of the Lord Advocate to the raising of these proceedings and,
whether, having failed to do so, the Panel’s application is incompetent.
Outline of the respondent’s challenge
[3] The respondent’s principal argument as to why the Minute was incompetent was as
follows:
(1) The Panel’s application was incompetent in the absence of the concurrence of the
Lord Advocate. In brief the argument was that, historically, all cases involving a
contempt of court required the prior concurrence of the Lord Advocate. This
flowed from the penal character of the consequences of a contempt and there was
no coherent policy reason to distinguish between contempt involving an interdict
and other forms of orders (“the concurrence challenge”)
The respondent referred to a subsidiary argument:
(2) In any event, proceeding by Minute was arguably incompetent and the present
application required to be by petition and complaint to the Inner House (“the
procedural argument”). This flowed from a narrow reading of section 47 (1) of
the Court of Session Act 1988 (“the 1988 Act”), which the respondent did not
himself espouse. For this reason, the procedural argument was not ultimately
advanced as a separate challenge to the competency of the Panel’s Minute. The
concurrence challenge sufficed for the respondent’s purposes. The procedural
argument was made to highlight, it was said, the illogicality of the Panel’s
application.
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3
Outline of the Panel’s reply
[4] The Panel’s reply is as follows:
(1) In relation to the concurrence challenge, the modern law is that the concurrence
of the Lord Advocate is required only in proceedings for contempt of court for
breach of an interdict and, accordingly, no concurrence was required in
proceedings for contempt of court for breach of a positive order (such as imposed
on the respondent by the Interlocutor); and
(2) In relation to the procedural argument, proceeding by Minute in the original
proceedings (as after defined) was competent.
The procedural history
[5] The procedural background is lengthy. It suffices for present purposes to note that
the respondent’s original acquisition of shares in Rangers International Football Club plc
(“the Company”) gave rise to the need for certain rulings by the Panel. It did so in
furtherance of its function of administering the City Code on Takeovers and Mergers
(“the Code”) and in the exercise of its statutory functions in chapter 1 of Part 28 of the
Companies Act 2006 (“the Companies Act”). One of the rulings required the respondent to
make an offer for certain other shares in the Company and, related to that, to publish a
Code-compliant announcement of his offer to do so. These rulings were subsequently
confirmed by court orders sought in the Panel’s petition proceedings in this court
(“the original proceedings”) and embodied in the first interlocutor. By the Inner House
interlocutor, the Inner House confirmed and varied the first interlocutor. The respondent
was required to implement the Interlocutor by 30 March 2018. He has not done so.
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4
The character of the Interlocutor
[6] In the course of submissions reference was made to the character of the Interlocutor,
which required the respondent to take certain steps within a prescribed timescale.
Conventionally understood, it was an order ad factum praestandum, i.e. requiring “positive”
steps, rather than a “negative” or prohibitory order such as an interdict. In terms of the first
interlocutor, as varied by the Inner House interlocutor (shown by underlined text) , the
respondent was obliged to do the following:
“in terms of section 955 of the Companies Act 2006, ordains David Cunningham
King to announce in accordance with the City Code on Takeovers and Mergers (“the
Code”), within 30 days of today’s date, and thereafter make in accordance with the
Code, a mandatory offer, at a price of 20 pence per share for all the issued ordinary
share capital of Rangers International Football Club plc not already owned by New
Oasis Asset Limited (“NOAL”) or controlled by him, Mr George Letham, Mr George
Taylor and Mr Douglas Park (all as fully designed within the prayer of the Petition)”.
The Interlocutor obliged the respondent to announce and make a mandatory offer (in
prescribed terms) for certain shares in the Company.
The form of the Panel’s application to this court
[7] The Panel brought the alleged contempt of court before the court by Minute in the
original proceedings in the Outer House. As noted above, the asserted failure to proceed by
way of petition and complaint to the Inner House was the subject of the procedural
argument.
The order sought if contempt of court is established
[8] If the court finds that there has been a contempt of court, the Panel invites the court
to impose upon the respondent “such penalty, whether by fine, imprisonment or otherwise
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as to the court shall seem appropriate in respect of that contempt”. The respondent relied
on this as part of his argument as to the penal character of these proceedings.
Submissions on behalf of the respondent
Propositions about contempt of court
[9] Senior counsel for the respondent, Mr Mitchell QC, began by observing that what the
Panel complained of is not a wrong to it but an affront to the administration of justice in the
Advocate 2008 JC 146, [2007] HCJAC 63) to vouch certain propositions, which I summarise as
follows:
(1) Proceedings for contempt of court had many features in common with criminal
proceedings. They are subject to the criminal side of Article 6 and attract the
same criminal trial guarantees;
(2) The contempt must be proved beyond reasonable doubt;
(3) The respondent (as the alleged contemnor) was no more compellable as a witness
than if he were the accused in a criminal trial;
(4) What must be shown is not simply a breach of the Interlocutor but a wilful
defiance of it, and this involves proof of the requisite mens rea;
(5) Contempt of court is an offence which is sui generis. It is not a crime per se,
although some contempts may be criminal in themselves. Contempt of court can
take many forms and often will not constitute criminal conduct;
(6) A penalty imposed for contempt of court is not regarded as a sentence and the
contemnor is treated like a prisoner on remand.
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6
He noted in passing, under reference to the English case of Daltel Europe Ltd and others v
Makki and others [2006] 1 WLR 2704; [2006] EWCA Civ 94, that hearsay evidence was
admissible in English contempt of court proceedings. He referred to other cases, e.g. to
vouch the opposition that precision was needed in the articulation of the alleged breach
Senior Counsel for the respondent to acknowledge that this was not a debate about
specification issues.
Preliminary remarks on the procedural argument
[10] Notwithstanding eschewing the procedural argument as a ground of challenge,
Mr Mitchell made a number of submissions about this. Under reference to the case of AB
and CD v AT, cit. supra, he noted the court’s observations that in respect of contempt that
occurred outwith the court, the matter of the alleged contempt is brought to the attention of
the court by an application of an interested party. Where there is no subsisting process then,
in the Court of Session, proceedings are by petition and complaint or, in the sheriff court, by
summary application (per the Lord Justice Clerk at para 3). In that case the alleged
contemnor was a social worker who had reduced contact by a parent with its child,
notwithstanding a court order for weekly contact. There were no ongoing court proceedings
and the observation of the Lord Justice Clark (at paragraph 3 and 7) must be understood in
that context. The Lord Justice Clerk stated:
“In the type of situation arising here, where the proceedings are no longer pending,
and there is no alternative procedure such as application by minute…, the normal
procedure is for the complaining party to lodge a summary application in the form of
an initial writ, no doubt craving that the defender be ordained to appear at the bar of
the court to explain his/her breach of the relevant order.”
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7
As I understood Mr Mitchell’s purpose in referring to this case, it was to note the
observation that there was no similar initiating process (i.e. a summary application in the
sheriff court) available in the Court of Session. (White v Magistrates of Dunbar (1915) 52 SLR
337 is cited in the respondent’s note of argument for this proposition.) In the Court of
Session, any similar application required to be by a petition and complaint and not, as the
Panel had purported to use here, a Minute in the original proceedings.
[11] In relation to the question of the proper procedure, Mr Mitchell referred to
paragraph 24 of Robertson and Gough v HM Advocate (cit supra), where the court set out the
procedure by which contempt of court was dealt with prior to 1975. At that passage the
court explained that a contempt of court could be punished summarily (per Hume), or on the
presentation of a petition and complaint by an interested party (Alison, ii, 549; HM Advocate
v Airs [1975] JC 64). If the contempt also amounted to a crime, it was open to the Crown to
prosecute the offender (Alison). From this, Mr Mitchell argued that until 1975 the court had
a free hand in dealing with contempt of court and that these comments were applicable to
all civil cases. He drew a distinction between some classes of criminal contempt which
could be punished summarily and others which required a formal application to bring the
matter before the court, a point he relied on in the instant case. He observed that
concurrence in the context of High Court cases was unlikely, because most contempt
proceedings were brought by the Lord Advocate.
The procedural argument
[12] Mr Mitchell developed his procedural argument, as follows. He referred to rule 14.2
of the Rules of the Court of Session 1984 (“the Rules”) and the commentary at paragraph
14.2.6. This described a breach of interdict in a depending cause being dealt with by a
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8
minute in the process, as provided for in section 47 (1) of the Court of Session Act 1988 (“the
1988 Act”). Any other proceedings were by way of petition and complaint. The distinction
turned on whether or not there was a “depending cause”. A cause was “depending” until
final decree, whereas a cause is “in dependence” until final extract. By contrast, rule 14.3 of
the Rules required any petition and complaint, other than one for breach of interdict, to
proceed by petition presented to the Inner House.
[13] From this he argued there was a two-fold division requiring one to ask first, whether
there was a “depending” process and, secondly, did the alleged contempt concern a breach
of interdict or another form of court order. The provision for an application to be made in a
depending process (i.e. other than by an initiating application constituting new proceedings)
was available only for breach of an interdict and where there was a depending process. He
noted that until 1933 an application was traditionally by way of petition and complaint and
historically was presented to the Inner House. Mr Mitchell asked: does the Panel say it is
within the statute (and to be done by minute) or not? If the Panel says that this is not a
contempt for breach of interdict, then it is, he submitted, stuck with the position that in
terms of the Rules this may only be done by petition and complaint to the Inner House.
[14] He sought to illustrate the operation of this distinction with the following examples.
If the alleged contempt concerned breach of an interdict which was final, that required to be
by petition and complaint but could be presented to the Outer House. In other words, the
Panel was either within the statutory provisions, or it was not. If it were not, the application
required to be by petition presented to the Inner House.
[15] Mr Mitchell next referred to subsections 6(3) and (4) of the Administration of Justice
(Scotland) Act 1933 (“the 1933 Act”). This contained a general requirement for petitions and
complaints to be presented to the Inner House: section 6(3). However, this was subject to
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9
subsection 6(4) which provided that, notwithstanding the terms of the preceding subsection,
it was competent for the Division (i.e. the Inner House) or the Lord Ordinary before whom a
cause was depending to deal with a breach of interdict without presentation of a petition
and complaint. Mr Mitchell argued that subsection 6 (4) of the 1933 Act reflected a general
policy consideration. Namely, if there was already a depending process and an order
reached such as to constitute a contempt of court, that it was good practice to keep the
complaint about non-compliance in that same process. Even though this subsection did not
extend to breach of an interim order ad factum praestandum, the same policy considerations
should apply. Consideration of whether breach of such an order constituted a contempt of
court should be retained within the same depending process, regardless of whether the
order was expressed in positive or negative terms. On this approach, one could avoid
arguments about whether the terms of the order broken constituted breaches of negative or
positive elements of the order. As I understood Mr Mitchell, he argued that the same policy
considerations should apply for breach of an order ad factum praestandum to be dealt with in
the same way. Section 6 of the 1933 Act was carried over into section 47(1) of the 1988 Act.
Section 46 provided for interdict proceedings. Accordingly, by the reasoning process he had
just explained, read broadly, section 47(1) of the 1988 Act extended to breach of any court
order.
[16] The Panel required to commit and state whether its application was within
section 47(1), or not. If it was within section 47 (1), then the case of Gribben v Gribben 1976
SLT 266 (“Gribben”) applied. If not, it cannot use this provision to make an application in a
depending process without a petition and complaint. He stressed that, contrary to what he
understood to be the Panel’s argument, there was no distinction to be drawn between a
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10
breach of interdict and breach of other court order. In policy terms, section 47(1) should be
given a broad reading.
The concurrence challenge
[17] Turning to the concurrence challenge, Mr Mitchell suggested that the Panel would
argue that the rule requiring the concurrence of the Lord Advocate is arcane and is required
only in respect of a breach of interdict. This was wrong. Mr Mitchell argued that the rule
requiring concurrence applied to a contempt of court arising from a breach of any type of
court order.
[18] As I understood Mr Mitchell’s argument it was, in effect, to collapse any distinction
between a negative order (such as an interdict) and a positive one (such as an order ad
factum praestandum). By way of illustration he offered the example of cases involving
children. It was, he argued, pure happenstance as to whether there was an interdict against
removal of a child or a positive order requiring delivery of a child to a carer. In the case of
an undertaking. Even in the case where the court order is expressed in negative terms, it can
carry with it the requirement to take positive action. However, Mr Mitchell argued that this
necessarily carried positive obligations to take reasonable steps to ensure that the
undertaking given to the court was drawn to the attention of the correct personnel. The
breach was the failure to take reasonable steps, i.e. which he characterised as containing
elements of a positive order. All of this was implicit even in an order expressed in wholly
negative terms. It was not controversial that an undertaking given to the court was
practically the same as a court order, and the same result followed from breach of an
undertaking as would follow from breach of a court order. Under reference to paragraph 31
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of that case, Mr Mitchell argued that the undertaking not to do something (not to open
correspondence to Mr Beggs from his legal advisers) could also include a requirement to do
something positive, such as taking steps to ensure that those who undertook the distribution
of prisoners’ post were aware of this undertaking. While the case of Beggs concerned an
undertaking, it was accepted that the Scottish Ministers could be liable for a breach of
undertaking in like fashion as for breach of an interdict. None of this was controversial in
the House of Lords. From this he drew two propositions: first, that there was no difference
between a court order and an undertaking provided to the court and, secondly, even
negative interdicts carry within them positive implications. There was, therefore, no
workable distinction to be drawn between negative and positive features of a court order.
He went further and contended that there was no distinction to be made between a court
order which was ex facie in positive or negative terms. The case of Beggs was a key case, as a
stepping stone, in the development of his argument to collapse any difference between a
positive or negative court order.
[19] Mr Mitchell was adamant that the policy rationale for requiring the concurrence of
the Lord Advocate was not to protect against any prejudice to criminal proceedings that
might follow a breach of interdict which was also criminal. He maintained that the court
had never distinguished between circumstances where the original conduct was criminal or
not. Rather, he argued, the true rationale for requiring concurrence was the essentially penal
nature of proceedings for contempt of court. These were quasi-criminal and therefore
appropriate for the Lord Advocate to be aware of, as he oversaw all criminal proceedings.
Because of the essentially penal and quasi-criminal nature of contempt proceedings, this
always brought in train the need to seek the concurrence of the Lord Advocate. He accepted
that this was not an absolute rule and that, for example, the contempt constituted by a
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prevaricating witness in a High Court trial did not require the concurrence of the Lord
Advocate. This was because this was conduct in the face of the court and was dealt with
summarily. His final stance was that concurrence was required only if there was a formal
court process.
[20] Turning to the case of Gribben v Gribben 1976 SLT 266 (“Gribben”), Mr Mitchell
referred to the report of the Lord Ordinary to the Inner House setting out the history and
practice of the rule requiring the concurrence of the Lord Advocate. In his submission, this
showed that the rule requiring concurrence was of general application and came into play if
there was a penal consequence for breach. While the majority of cases concerned breaches
of interdict, they were not confined solely to breaches of that form of court order- as
illustrated by the old case of Bell v Gow (1862) 1 M 84. The effect of the 1933 Act was, he
argued, to provide a new procedure, namely an application by Minute. That was the
procedural point before the court in Gribben. The concurrence of the Lord Advocate was
required in all cases where there were semi-criminal consequences and the rule requiring
concurrence was not confined to breach of interdicts. The Inner House in Gribben was
concerned with the dividing line between a petition and complaint on the one hand, and a
minute, on the other hand. The propositions referred to by the Inner House (in the first to
fourth paragraphs of its decision) were, he argued, equally applicable to breaches of court
orders other than interdicts. He did not agree with the court’s observation (in the third
paragraph) that the rule was predicated on a flimsy basis. Notwithstanding that the court
was dubious about the underlying rationale, it had confirmed the rule. In Mr Mitchell’s
submission the fact that the court was concerned with breach of an interdict in that case was
wholly incidental; the court’s rationale applied equally to breaches of other types of orders.
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The rule of expediency was long-hallowed over the centuries, requiring the concurrence of
the Lord Advocate.
[21] He emphasised that the concurrence of the Lord Advocate was required because of
the penal consequences for contempt. The question of concurrence was not determined by
the character of the order which was said to have been breached. It is “penal” because what
is sought is punishment. He referred to the terms of the order sought by the Panel, quoted
above, at paragraph [8]. Furthermore, what fell to be proved was wilful non-compliance
regardless of whether the order was positive or negative.
[22] His position was fortified by the pre-1933 Act cases. They supported a general
proposition that all applications to the court for contempt of court for breach of an order
required the concurrence of the Lord Advocate. This extended the rule requiring
concurrence beyond breach of an interdict. He submitted that no distinction was ever
drawn in the earlier authorities based on the nature of the court order said to have been
breached.
The pre-1933 cases
[23] Mr Mitchell turned to consider the pre-1933 cases, as these were said to give rise to
the general proposition that applications of this kind, being penal in nature, required the
concurrence of the Lord Advocate. The pre-1933 cases extended beyond interdict cases. In
his submission, no distinction was ever drawn in the authorities as to the nature of the court
order said to have been breached. In anticipation of an argument on behalf of the Panel,
Mr Mitchell did accept that some forms of contempt could be enforced by a summary
procedure for which the concurrence of the Lord Advocate was not required. He answered
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this by distinguishing between such circumstances and cases of contempt initiated by a
formal process, as in this case.
[24] The case of White v Dunbar (1915) 52 SLR 337 proceeded by petition and complaint.
The order said to have been breached was a failure to hand over documents. In holding that
a petition and complaint was an incompetent means to enforce such an order, the court
made certain general observations about petitions and complaints (on which Mr Mitchell
founds). The Lord President referred to proceedings by petition and complaint as a well-
defined form a process to inflict punishment. Mr Mitchell also referred to the observations
of Lord Johnston (at the foot of p339) about the absence of any general power to proceed by
way of a sort of summary application in the Court of Session. Mr Mitchell founded on the
observations as to a petition and complaint being of a “quasi-criminal” character requiring
the concurrence of the Lord Advocate. He noted that punishment could simply be by
admonishment. If punishment was sought, the Lord Advocate’s concurrence was required;
if not, a different form of process had to be used. Mr Mitchell argued that this was a
consistent dividing line in the older cases.
[25] The case of Bell v Gow (1862) 1 M 84 involved a complaint for breach of statutory
duty or malversation of those in public office. In that case censure was sought. The Lord
Justice Clerk in that case looked at the nature of an application by petition and complaint.
As it sought infliction of punishment, one could not proceed without the concurrence of the
Lord Advocate. Lord Cowan’s observations were to similar effect: because what was
sought included censure, the concurrence of the Lord Advocate was required if the
complainer was not proceeding on the basis of a statutory procedure. The petition and
complaint would otherwise proceed at common law. This, argued Mr Mitchell, was the key
feature: that there a conclusion for punishment. Since a petition and complaint always did
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so, concurrence of the Lord Advocate was always required. If there were no conclusion for
punishment, then the concurrence of the Lord Advocate was not required.
[26] In the case of Paterson v Robson (1872) 11 M 76 the application was found to be
incompetent because there had been no concurrence. The petitioner’s attempt to amend was
refused, because this would alter the whole character of the action. He relied on the
observation (at page 79) that a penal complaint could not proceed without the concurrence
of the Lord Advocate and any deficiency could not be corrected by amendment. The court
in that case then dealt with the unamended application, i.e. under common law, and held
the application was incompetent because the court had no jurisdiction without the
concurrence of the Lord Advocate. Mr Mitchell stressed that this was stated as a general
rule and that the court proceeded by looking at the “penal” consequence, including the
crave for punishment, and it was these qualities that attracted the requirement for the Lord
Advocate’s concurrence. He accepted that most of cases concerned a breach of interdict but
this did not detract from his argument.
[27] Mr Mitchell argued that if he was correct, then there were three ways a contempt
could be bought before the court. The first of these was by petition and complaint to the
Outer House; the second was by a minute in a depending process; and the third was a
petition and complaint to the Inner House. There were difficulties in saying whether the
Panel should proceed by the second or third route. In any event, that did not matter, so
much as that in each case the requirement for the Lord Advocate’s concurrence was the
same and was required for any “penal” process (ie being one in which punishment was
sought).
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Submissions on behalf of the Panel
Response to the concurrence challenge
[28] Dr Johnston invited me to repel the respondent’s plea to the competency and to
allow these proceedings to proceed in accordance with the normal procedure. He
contended that the respondent’s competency challenge and procedural argument were both
wrong. In outline his position was as follows: there was a fundamental misconception
affecting most of the respondent’s argument. In his submission, all of the cases, old and
recent, made it clear that breach of interdict was in a special class of its own, with its own
procedures and rules. A breach of interdict was a species of contempt of court, but the
converse was not true (i.e. there are other contempts of court and breaches which are dealt
with differently). The respondent’s argument failed to engage with relevant authorities on
contempt of court; there was no mention of the case of Robb v Caledonian Newspapers Ltd 1995
SLT 631 (“Robb”) as just such a case.
[29] He noted that the respondent’s argument was founded on the following contentions:
(1) it is an essential requirement for a Minute for breach of interdict that the
concurrence of the Lord Advocate be obtained; and
(2) while the order in issue in the present case is a positive order in terms of s.955
of the Companies Act 2006, the same considerations apply to failure to
comply with a positive order as a failure to comply with an order prohibiting
a respondent from doing something. That is because in either case, where a
deliberate failure to comply with an order of the Court is established, that
may lead to the imposition of a penalty.
[30] Dr Johnston submitted that the respondent’s argument was misconceived and that
Gribben does not support it. Gribben was concerned with breach of interdict. The Inner
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17
House explained clearly why in the case of breach of interdict, and only in that case, the
concurrence of the Lord Advocate is still required in modern practice (see p269). In
particular, the court in Gribben made the following observations:
(1) There is no doubt that for almost 200 years the competency of a petition and
complaint for breach of interdict had depended upon the concurrence of the
Lord Advocate.
(2) This general rule has never been applied to any other types of contempt which
may lead to punishment. Contempt of court is an offence sui generis, and a
complaint of disobedience to an order of the Court involved no question of
criminal or quasi-criminal proceedings.
(3) While there is room for considerable doubt about the soundness of the rule that
concurrence is necessary in the case of breach of interdict, the rule should be
maintained for the following reasons:
(i)
it has been followed in practice for 200 years;
(ii)
the facts relied upon to demonstrate breach of certain interdicts also
constitute a criminal offence; in cases of that kind the Lord Advocate
had a clear interest, and the need for his concurrence is justified on the
view that the court should take no action with respect to a contempt
which might prejudice the fairness of a prosecution or expose the
respondent to double jeopardy;
(iii)
even in cases where the facts would not constitute a criminal offence,
there is advantage in having one rule of general application to all
complaints of breach of interdict; and
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(iv)
the Lord Advocate favoured the continuation of this long-standing
rule.
[31] Dr Johnston submitted that, on the basis of Gribben alone, it is clear that the
requirement for concurrence is an exceptional one, which is restricted to breach of interdict.
Within the area of breach of interdict, the requirement has a principled justification only in
cases where the facts relied upon constitute a criminal offence, owing to the possibility that
the Lord Advocate may intend, or may wish to consider the possibility of, criminal
prosecution in relation to those facts; and where, accordingly there is a risk of placing the
person alleged to be in breach of interdict at risk of double jeopardy. Consistently with that,
the standard of proof of breach of interdict has been held to be proof beyond reasonable
doubt: see Gribben at 269.
President, Lord Roger, observed (at paragraph 302F) that “it appears that no penal
consequences would follow on a failure to comply with the terms of a decree of specific
implement unless it were shown that the failure had been in deliberate defiance of the order
of the court” and he recognised that a deliberate breach of the order might merit
punishment. Both the Lord President (at 302) and Lord Kingarth (at 313) recognised the
need for precision in framing the terms of any decree for specific implement.
[33] While there may be some general similarities between “positive” orders of specific
implement and “negative” orders for interdict, he submitted that there is no basis for
transposing into the law of specific implement a special feature of the law relating to
interdict which rested solely on its possible intersection with criminal conduct. In any event,
given that a possible intersection with criminal conduct is the justification for the
requirement of concurrence in cases of breach of interdict, if there were any justification for
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extending it to an obligation of specific implement of any kind, it can only be to a case in
which failure to implement that obligation constitutes criminal conduct.
[34] Dr Johnston accepted that it would be logical for the treatment of breach of an order
for interdict and one for specific implement to be the same; however, that was not how the
case law had developed. The respondent had not produced any case where the concurrence
of the Lord Advocate was required for a contempt of court. The case law uniformly
supports the view that there is no requirement for the concurrence of the Lord Advocate in
relation to a minute for contempt of court. See in particular Robb v Caledonian Newspapers Ltd
1995 SLT 631, in which the Lord Justice General set out the following propositions:
(1) The common law does not impose, and never has imposed, a requirement for the
concurrence of the Lord Advocate in relation to proceedings for contempt of
court: 633 H.
(2) Contempt of court is dealt with under the authority of the court, in exercise of the
power vested in it to maintain its authority: 633 I.
(3) Contempt of court is the name given to conduct which challenges or affronts the
authority of the court; it is not a crime; it is an offence sui generis: 633 J.
(4) In Gribben the rule requiring concurrence of the Lord Advocate was maintained
for reasons of principle and expediency, but there was no reason why the
concurrence of the Lord Advocate should be required generally in all cases of
contempt. That has never been the practice, except for cases of breach of
interdict: 634 E-G.
[35] These propositions have been followed in other cases and were set out in the
treatment of the subject in chapter 16 of Arlidge, Eady and Smith on Contempt of Court
(5th edn, 2017; the consulting editor for Scotland being Lord Eassie), where it was recognised
Page 20 ⇓
20
(in paragraphs 16-22, 23, 48 under reference to, among other cases, HMA v Airs 1975 JC 64 at
that:
(1) Despite indications to the contrary in certain 19th century cases, contempt of court
was neither criminal nor quasi-criminal but sui generis,
(2) It was peculiarly within the province of the court, whether civil or criminal, to
punish contempt under its inherent jurisdiction to take effective action to
vindicate its authority, and
(3) The sole case in which the concurrence of the Lord Advocate is required is breach
of interdict.
Dr Johnston submitted that, accordingly, on the authorities, the concurrence of the Lord
Advocate is not a necessary precondition to raising proceedings for contempt of court. In
short, there is not and never has been any such requirement. Imposition of a penalty for
contempt of court by a civil court does not rest on the commission of a criminal or
quasi-criminal act: it rests on the inherent jurisdiction of the court to vindicate its authority.
[36] Turning to the textbooks, Dr Johnston made the following points:
1) It was significant that in the discussion in McLaren, Court of Session
Practice (at p134), there was a separate treatment for contempt of court
and procedures for breach of interdict. These separate forms of
proceeding were not bundled together. Further, it was clear that
formalities may not be applicable at all for some contempts of court, as
was the case for on the spot or summary punishment for contempt of
court. He submitted that these points raised serious questions about the
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21
correctness of the respondent’s contention that the Lord Advocate’s
concurrence was required in all cases of contempt of court.
2) In relation to the discussion in Mackay, Manual of Practice (at p587), this
was about petition and complaint procedure in the Inner House.
However, this case was not in the territory of such procedure. Even if it
were, it was clear from the case of Gribben that the formal requirements
did not arise in a case such as this as there was no criminal conduct
involved. In the author’s discussion in an earlier chapter (at p103-105), he
dealt with breaches of interdict constituting contempt of court and their
being dealt with in the Outer House. This is further confirmation of the
distinction between this manner of proceeding and that by way of
petition and complaint to the Inner House.
3) In the extract from Maxwell, Court of Session Practice, the author also
distinguished between criminal and civil contempt of court.
The essential point Dr Johnston drew from these passages was that a contempt of court did
not always require to proceed as a petition and complaint or, even, as a minute. It sufficed
to draw the matter to the attention of the court by a motion or something less than full
pleadings.
[37] Dr Johnson then turned to consider the modern cases of Gribben and Robb. Starting
with Gribben, Dr Johnston regarded as significant that Mr Mitchell did not suggest that the
case of Gribben was wrongly decided. The key point to be taken was that that case was all
about a breach of interdict. It clearly spelt out that the concurrence of the Lord Advocate
was not required in any other case (i.e. apart from a contempt arising from breach of
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22
interdict). Dr Johnston lay particular stress on the third paragraph of the decision of the
Inner House, where the Lord President identified a clear distinction between a breach of
interdict and other types of contempt. The Lord President confirmed that the concurrence of
the Lord Advocate had never been required in other forms of contempt of court. This
observation was made notwithstanding that these other forms of contempt of court could
nonetheless result in the infliction of punishment. Accordingly, this was fundamentally
inconsistent with the respondent’s principal proposition to the effect that, so long as the
consequence was “penal”, the concurrence of the Lord Advocate was required. It was clear
that in this decision of the First Division, the rule requiring concurrence had never been
applied to anything other than a breach of interdict.
[38] Turning to the case of Robb the High Court of Justiciary was dealing with a contempt
of court brought before it by way of petition and complaint. The substance of conduct said
to constitute the contempt of court was a prejudicial newspaper report. In that case, as here,
the respondent objected to the competency of the proceedings in the absence of concurrence
of the Lord Advocate. The Lord Justice General (Hope) rejected the proposition that the
Lord Advocate’s concurrence should be required generally in all cases of complaints of
contempt of court. He observed, at p634F-G, that “[it] has never been the practice for his
concurrence to be required except in regard to the particular case of a complaint of a breach
of interdict”. Accordingly, the court rejected the competency challenge. Further, in that
case, the court confirmed that there was no general requirement for concurrence at common
law of the Lord Advocate to an action simply on the basis that it involved a contempt of
court. As the court had said in that case, “the common law does not impose and never has
imposed such a requirement” (i.e. requiring concurrence to all proceedings for contempt of
court): at p 633H.
Page 23 ⇓
23
[39] In that case, after reviewing the relevant authorities, the court also affirmed the well-
known principles that a contempt of court is dealt with by the court under its own authority
in order to maintain its authority and the speedy and effectual advancement of justice. That
case also confirmed that a contempt of court was not a crime within the meaning of Scots
criminal law, but was sui generis. The court acted under an inherent and necessary
jurisdiction to preserve the due and impartial administration of justice. The Lord Justice
General also observed, at p64D-E, that the Contempt of Court Act 1981 prescribed certain
penalties that might be imposed for contempt of court but, for Scotland, made no provision
for the procedure to be followed. Rather, the procedure continued to be regulated by
common law, by which interested parties may bring proceedings for contempt of court by
bringing facts to the attention of the court concerned. Such an application might be
intimated to the Lord Advocate for the public interest but his concurrence was not required.
By contrast, the court noted that the position was different with a contempt constituted by a
breach of interdict. The court affirmed the discussion in Gribben and that proceedings for
contempt based on breach of interdict may be brought only with the concurrence of the Lord
Advocate.
[40] Dr Johnston submitted that these cases supported the proposition that it never was
the law of Scotland that every contempt of court required the concurrence of the Lord
Advocate. Only contempt of court arising from a breach of interdict required concurrence.
Accordingly, there was no basis in the respondent’s assertion that there was a mandatory
requirement for the Lord Advocate to concur to validate every application to the court
raising a contempt of court. While the respondent sought to deal with the inconsistency in
his argument posed by summary cases (and in which no concurrence was required), the case
law did not warrant drawing any such distinction. Dr Johnston argued that the very fact
Page 24 ⇓
24
that the respondent required to draw such a distinction undermined the respondent’s
primary proposition that there was a rule requiring concurrence generally in all cases of
contempt. The respondent’s argument based on the “penal” character of the proceedings
was not supported by the case law.
[41] The authorities established that the requirement of concurrence applies only to
breach of interdict. In Gribben itself, which is the modern authority for the requirement in
relation to breach of interdict, it was recognized that there was considerable doubt about the
soundness of the rule. It was affirmed in that specific context because of the possible
intersection between breach of interdict and criminal proceedings.
[42] Dr Johnston also noted the serious doubts expressed by the court in the case about
the rule, and its acknowledgement of the advantage of having a rule of general application
and which was not dependent on the outcome. In other words, while not all breaches of
interdict constitute criminal conduct, for the sake of expediency and principle, it was
convenient to have a single rule (i.e. one requiring concurrence, even though in some cases a
breach of interdict would not also constitute criminal conduct). The survival of the rule
requiring concurrence was approved only for breaches of interdict, because that is what the
section was concerned with. By implication the court was dealing with a breach of interdict
case but Dr Johnston invited me to note the wider doubts expressed about the basis for any
rule of concurrence. In other words, the doubts extended even to the application of the rule
to breaches of interdict. Accordingly, this case could not afford any basis to extend the rule
(as the respondent sought to do); rather, it confirmed its narrow scope. It affirmed the rule
only for breaches of interdict and did not endorse any wider approach. This case was
fundamentally inconsistent with the respondent’s argument.
Page 25 ⇓
25
[43] In these circumstances he argued that there is no warrant for extending the
requirement of concurrence into an area in which it has never operated, as Mr Mitchell’s
argument sought to do. This was for the following reasons:
(1) The soundness of that requirement even in the area of interdict has been
doubted.
(2) That being so, there is no principled basis for extending the requirement into the
law of contempt of court (other than contempt of court consisting of a breach of
interdict).
(3) The justification for the requirement in the context of breach of interdict is the
potential, where the conduct at issue is criminal, for prejudice to the fairness of
an eventual prosecution or the risk of placing the person alleged to be in breach
of interdict in double jeopardy. That justification does not apply to contempt of
court.
(4) There is no principled basis for extending the requirement to apply to obligations
of specific implement. In any event, there is no principled basis for extending it
to an obligation of specific implement unless failure to implement that obligation
constitutes criminal conduct.
[44] In the present case the conduct complained of is the respondent’s failure to make a
mandatory offer for shares in terms of the Code. That failure does not constitute criminal
conduct. In the circumstances, and for all these reasons, Dr Johnston submitted that the
concurrence of the Lord Advocate to the present Minute is not necessary.
Page 26 ⇓
26
Reply to the procedural challenge
[45] Under reference to the case of AB & CD Dr Johnson observed that contempt of court
is sui generis; it could take many forms, some of which could be criminal and some not; and
if it occurred outwith court and there was no subsisting process, then proceedings could be
raised by petition and complaint. If there were a subsisting process then, in his submission,
the matter could be brought before the court by minute or by motion and, indeed, need not
even be in writing. Contempt of court are of many and various kinds.
[46] Under reference to paragraphs 16-46 to 16-47 in Arlidge, Dr Johnston noted that the
authors of that work, which included Lord Eassie as its Scottish editor, simply noted that in
a civil case all that was required was an “appropriate” application to bring any asserted
contempt to the notice of the court.
[47] Summarising what he took from these authorities, Dr Johnson submitted that neither
the old cases nor textbooks on Scottish procedure supported the proposition that a contempt
of court fell to be treated procedurally in the same manner as a breach of interdict. None of
them mentioned concurrence of the Lord Advocate as a prerequisite in proceedings for
contempt of court. This was required only in the case of contempt arising from an alleged
breach of interdict. As a contempt of court could be dealt with summarily or by motion,
none of these would leave any scope for concurrence by the Lord Advocate. This did not
appear to be disputed, but this was fundamentally inconsistent with the respondent’s
arguments. The essential point was that a contempt of court required to be brought to the
attention of the court. As the authors of Arlidge observed, however, this simply required to
be by “an appropriate” application. In other words, this did not mean that proceeding by
petition and complaint was the prescribed and exclusive means to do so.
Page 27 ⇓
27
[48] Turning to the respondent’s reliance on chapter 14 of the Rules, it appeared the
respondent required the Panel to choose between rule 14.2 (proceeding in the Outer House)
and rule 14.3 (proceeding in the Inner House). This is simply wrong in the light of the
submissions Dr Johnston had just made. It was misconceived to suggest that every
complaint of a contempt of court must find a home in chapter 14 of the Rules. This approach
failed to accommodate proceedings by motions and minutes. He noted that there was a
separate chapter for proceeding by minute, in chapter 15 of the Rules and this would cover
the discussion of cases in Arlidge. Rare cases, such as malversation, were reserved to the
Inner House, whereas the common case of a breach of interdict was allocated to the Outer
House. He stressed that none of this shed any light on the question of what was the proper
way to proceed for a contempt of court. The respondent’s approach was wrong in trying to
shoehorn the kind of contempt of court application into chapter 14. This was inappropriate
and inconsistent with the relevant authorities and the current understanding and practice of
the Court of Session.
[49] The case of Beggs involved a minute for contempt of court in a depending process.
There was no suggestion that this procedure was incompetent. (Dr Johnston noted that that
case was silent on the question of concurrence.) He noted that the case of Gribben had also
proceeded by minute.
[50] In relation to the cases of White v Magistrates of Dunbar, Bell v Gow and Paterson v
Robson, Dr Johnston understood that the respondent relied on these cases to support the
proposition that if there were a penal element then the only competent manner of
proceeding was by petition and complaint. However, on proper analysis, all these cases
showed was that a petition and complaint is the procedure to be used when a civil court is
asked to inflict punishment. The respondent turned this proposition on its head to argue
Page 28 ⇓
28
that this was the only process by which this can be done. However, what was said in those
cases did not imply that any formal procedure by which the court was asked to impose
punishment required to be by petition and complaint. All that it said was that that was a
form of proceeding; not the only form of proceeding. These three cases took matters no
further than to say that a petition and complaint was a means to inflict a penalty but nothing
in these supported the proposition that this was the only means to do so.
[51] In relation to Mr Mitchell’s reference to the Rules, and in particular rule 14.3, the
respondent’s position is that the key rule is in chapter 14 of the Rules. However, Dr
Johnston argued that this was not applicable. What the respondent sought to do was to
force this application into a formal structure to which it does not belong. Contempt of court
did take many forms; sometimes they were dealt with with a minimum of formality and that
fact casts doubt on the proposition of the need to find a home within chapter 14 for every
case of contempt of court. Rather, Dr Johnston argued, the cases systematically
distinguished between contempt of court on the one hand and breaches of interdict on the
other. In relation to the 1933 Act, Mr Mitchell’s procedural argument disclosed the same
forcing of the case into provisions for which it was not designed. Further, section 47(1) of
the 1988 Act was concerned only with interim orders. Finally, in relation to the 1933 and
1988 Acts, Dr Johnston submitted that the 1933 Act was expressly concerned only with
breach of interim interdict. Similarly, section 47(1) of the 1988 Act was confined to interim
regulation. These provisions were, therefore, of no assistance in the procedural argument
the respondent raised.
Page 29 ⇓
29
Reply on behalf of the respondent
[52] Mr Mitchell addressed himself to the classes of contempt of court cases in which the
concurrence of the Lord Advocate was not required. In the main, these cases were dealt
with summarily, consistent with normal practice as it had developed. He distinguished that
circumstance, which he acknowledged did not require the concurrence of the Advocate, and
formal proceedings. If an action was not in dependence, only a formal procedure could be
used to bring the matter before the court. In the absence of any depending process, the only
process by which this could be done was a petition and complaint. This was because there
was no judge who could deal with the matter summarily. This case concerned what was
said to be a wilful defiance outside of court.
[53] Mr Mitchell accepted that the majority of cases for contempt of court involved
breaches of interdict but, he argued, the essential character was the wilful defiance of the
court’s order. The effect of the 1933 Act was to permit some contempts of court to be
brought before the court by minute in certain circumstances, rather than by petition and
complaint, which was the only manner of proceeding prior to the 1933 Act.
[54] Mr Mitchell accepted that the law is not totally logical or coherent. The point of the
pre-1933 cases was to demonstrate that the only route to bring a contempt of court before the
court was by petition and complaint and for which the Lord Advocate’s concurrence was
required. Other contempts could be dealt with summarily. All that the 1933 Act did was to
switch one category of cases for breach of interdict in a depending process from the petition
and complaint procedure to something more summary. The argument in Gribben had been
that, as a consequence of the 1933 Act, the requirement for the Lord Advocate’s concurrence
flew off. However, the court rejected that.
Page 30 ⇓
30
[55] More fundamentally, Mr Mitchell argued that none of this assisted the Panel on the
underlying question. While the Panel suggested there were a plethora of ways to proceed,
this did not sit with the broad categorisation that Mr Mitchell had identified. He accepted
that there were anomalies. However, he maintained that the policy background
underpinning the requirement for the concurrence of the Lord Advocate was the “penal”
character of proceedings which seek “punishment”, as was sought in this case. Clearly
Parliament had thought this was a good policy because it had extended this by the 1933 Act.
He accepted, though, that this was not logically applied to summary cases. He also accepted
that there were inconsistencies, for example as between a process in the Court of Session and
in the High Court of Justiciary, where forms of process were different. He suggested I look
only at the Court of Session cases.
Discussion
Issue for determination
[56] The point for determination following debate, is whether the Panel required to
obtain the concurrence of the Lord Advocate to its Minute inviting this court to find that
there has been a contempt of court by reason of the respondent’s failure to obtemper the
Interlocutor.
Precis of the respondent’s concurrence challenge
[57] Mr Mitchell’s argument essentially was that, as all contempts of court have “penal”
consequences, the concurrence of the Lord Advocate is required for all such proceedings.
On this approach, the form of the underlying court order (ie as positive or negative) was of
no moment. It did not matter that, incidentally, most of the cases of contempt involved
Page 31 ⇓
31
breaches of interdict. This was consistent with Gribben, which should be extended to non-
interdict contempt of court cases. There were older cases (Bell v Gow and Paterson v Robson)
in which the requirement for concurrence was applied, even in non-interdict cases. Allied to
this was Mr Mitchell’s subsidiary argument, as I understood it, that in any event there was
no real distinction between positive and negative orders; as the case of Beggs illustrated,
even an order (or in that case, an undertaking) expressed in wholly negative terms could
carry with it obligations to take positive steps. Mr Mitchell did not accept that a special rule
might apply for breach of interdict, and which might distinguish it from other forms of
contempt of court. He rejected the suggestion that there was such a distinction or that the
underlying rationale for such a distinction was the need not to prejudice any criminal
proceedings that might follow for a breach of interdict that was criminal in character, as well
as constituting a contempt of court.
The concurrence challenge
The modern cases
[58] Mr Mitchell’s concurrence challenge is predicated on the proposition that the “penal”
character of contempt of court proceedings necessarily required the concurrence of the Lord
Advocate, regardless of the form of the underlying court order said to have been disobeyed.
I begin, therefore, by considering the modern cases on contempt of court, namely AB and CD
v AT, CM v SM, Robertson and Gough v HMA and Robb. While Mr Mitchell relied on a
number of dicta in these cases regarding the criminal character and other features of
contempt of court, it should be noted that in none of these cases was the concurrence of the
Lord Advocate in fact required. Indeed, in Robb (a case on which Mr Mitchell made no
submission), a similar argument was considered and expressly rejected by the Lord Justice
Page 32 ⇓
32
General (Hope). It is in my view no answer to the latter case to invite me to consider only
the civil cases. In none of the cases was it suggested that the character of the proceedings
(i.e. civil or criminal) gave rise to any relevant distinction about the requirement for
concurrence, other than the practical consideration that the Lord Advocate’s concurrence
was obviously not required in cases brought by him.
[59] The two Inner House civil cases of AB and CD v AT and CM v SM both concerned a
failure to comply with a sheriff court order for contact with a child, ie it was a “positive”
order and not an interdict. In AB and CD the alleged contemnors were two social workers
who had intervened to reduce contact (for child protection reasons) and in CM v SM the
alleged contemnor was one of the parents. Much of the discussion in AB and CD concerned
the flawed procedure followed by the sheriff (who had proceeded brevi manu and without
affording the alleged contemnors a specific or fair representation of the acts founded on) and
the court’s guidance for the conduct of such proceedings in future. Similarly, the alleged
contemnor in CM v SM argued successfully that the procedure adopted in the contempt of
court proceedings had produced substantive injustice.
[60] In AB and CD v AT the court set out (at para 3) the well-known features of contempt
of court: disobedience of a court order may give rise to a finding of contempt; a contempt of
court was sui generis (for which proposition it cited Gribben); contempt of court could take
many forms and in some instances the disobedience of the court order could itself be
criminal. In CM v SM, after referring to this passage in AB and CD v AT, the court also noted
characteristics which made contempt of court proceedings “quasi-criminal” in nature,
including proof to the criminal standard of beyond reasonable doubt and that the alleged
contemnor is not a compellable witness: paragraph 43. The mens rea of the offence required
proof that the failure to comply with the court order was one of wilful disobedience.
Page 33 ⇓
33
[61] These are important cases as they contain detailed consideration of the essential
features of contempt of court; they consider the procedure to be followed in cases where the
alleged conduct took place outside of court; and in both cases the alleged contempt was a
failure to comply with a court order which imposed positive obligations. Given the court’s
focus in both cases on providing detailed guidance as to the procedure to be followed in
such cases of contempt, it is striking that the court did not stipulate that the concurrence of
the Lord Advocate was required in such cases. On Mr Mitchell’s approach, concurrence was
necessary and the proceedings for contempt incompetent in the absence of that concurrence,
yet the Inner House in AB and CD v AT and CM v SM was silent in the face of this apparent
incompetency.
[62] Turning to the two recent criminal cases of contempt of court cited, Robertson and
Gough v HMA concerned conduct in the face of the court (prevarication in the case of
Mr Robertson and appearing naked in the case of Mr Gough). In neither case did the sheriff
concerned remit the question of contempt to another sheriff. The discussion was addressed
principally to whether the procedure adopted was compliant with Article 6 of the ECHR
and (after reviewing the procedure before 1975 and the developments in the case law and
production of memoranda thereafter) what procedure in future should be followed. The
court also dealt in detail with the nature of a contempt of court (at paras 29-31) and forms of
contempt (at paras 32-39). It referred to the principal criminal cases and the authoritative
works (e.g. of Hume and of Alison), that vouched many of the same propositions identified
in the two civil cases (AB and CD v AT and CM v SM, which did not canvass the criminal
authorities). These included the sui generis character of a contempt of court, which was an
offence committed against the court and which was peculiarly within the province of the
court to punish; that contempt of court was not a crime per se; and that the penalty imposed
Page 34 ⇓
34
was not a sentence for the purposes of the criminal procedure statute. The court also noted
(at para 42) that if facts constituting the contempt also amounted to a crime, it was open to
the Crown to prosecute the offender. Again, in common with the civil cases just noted, there
was no suggestion that part of the procedure for pursuing the contempts of court in question
(and which do not concern breach of interdict) required obtaining the concurrence of the
Lord Advocate.
[63] General dicta aside, prima facie these cases are all inconsistent with Mr Mitchell’s
central proposition. It is appropriate to note that the argument Mr Mitchell advances here
was not advanced in these three cases. However, such an argument was advanced to, and
soundly rejected by, the High Court of Justiciary in the fourth case, that of Robb, to which I
now turn.
[64] In Robb the editor and journalist of an article considered to be prejudicial to the fair
trial of an accused were subject to proceedings for contempt of court. The respondents
objected to the competency of those proceedings on the same basis as the respondent
advances in this case, namely the failure to obtain the concurrence of the Lord Advocate.
The case predated the three cases I have already referred to but it affirmed the same general
principles about the nature of contempt of court, namely, that it was an offence sui generis;
that contempt of court was not a crime within the meaning of Scottish criminal law; and that
it was for the court itself to punish the contempt and it did so as part of its “inherent and
necessary jurisdiction to take effective action to vindicate its authority and to preserve the
due and impartial administration of justice”: see p 633 I-J.
[65] Lord Hope observed that, while the Contempt of Court Act 1981 (“the 1981 Act”) set
out maximum penalties, it did not prescribe any procedure in Scottish proceedings for
contempt of court. He noted that there was no requirement in terms of the 1981 Act to
Page 35 ⇓
35
obtain Lord Advocate’s concurrence and he stated that “we consider that the common law
does not impose and never has imposed such a requirement”: at page 633H. He then
observed:
“In some cases, although not in the present one, an act which is a contempt of court
may also constitute criminal conduct. If it is to be prosecuted as a crime, then that is
a matter for the Lord Advocate and the court will exercise its power to deal with it as
a contempt. Where the matter is to be dealt with as a contempt of court however it is
dealt with under the authority of the court, in the exercise of the power which is
vested in it to maintain its authority and the speedy and effectual advancement of
justice: see Hume, Commentaries on the Law of Scotland respecting Crimes, ii, 138.”
After noting the general propositions I have already set out, and making certain
observations about the procedure to be followed where the contempt is committed in the
face of the court or outwith it (at p633 J-L), Lord Hope referred to a number of pre—1981 Act
cases (HM Advocate v Airs, a case brought by the Lord Advocate, and Stirling v Associated
Newspapers Ltd, Aitken v London Weekend Television Ltd and Hall v Associated newspapers Ltd)
and he concluded that the 1981 Act did not alter these cases about the essential nature of the
court’s jurisdiction to deal with contempt of court. Lord Hope noted that the common law
continued to regulate the procedure and that the concurrence of the Lord Advocate was not
required (see p634D). Having confirmed that, notwithstanding its “penal” character,
proceedings for a contempt of court did not require the Lord Advocate’s concurrence, Lord
Hope then turned, by way of contrast, to a specific category of cases where the contempt of
court concerned a breach of interdict. In particular, he stated:
“The position is different [i.e. from one in which concurrence was required] in the
case of a petition and complaint for breach of interdict, where the rule is, for the
reasons discussed in Gribben v Gribben, that such proceedings may be brought only
with the concurrence of the Lord Advocate. It was recognised in that case that
disobedience of the court’s order constitute contempt of court which is an offence sui
generis, and that where the court is invited to entertain a complaint of disobedience
of one of its orders no question of criminal proceedings or quasi-criminal
proceedings is involved. But the practice for about 200 years had been that the
competency of a petition and complaint for breach of interdict of any kind was
Page 36 ⇓
36
dependent upon the concurrence of the Lord Advocate, and it was held that for
reasons of principle and expediency, and because the Lord Advocate had made it
known that he desired that this rule should continue, the survival of the rule should
be approved. Counsel for the respondents said that, as the concurrence of the Lord
Advocate was required when the complaint was a breach of interdict, the same rule
should be applied generally to all cases of contempt, due to what he maintained was
their penal character. In our opinion, however, there is no reason in principle why
the Lord Advocate’s concurrence should be required generally in the case of all
complaints of contempt of court. It has never been the practice for his concurrence
to be required except in regard to the particular case of a complaint of a breach of
interdict.” (Emphasis in bold and underline added.)
Accordingly, the court in Robb repelled the respondents’ plea to the competency of those
proceedings.
[66] It respectfully seems to me that the court in Robb addressed the very proposition
advanced by Mr Mitchell and resting on the same argument about the “penal” character of
contempt of court proceedings: see the sentences underlined in the passage just quoted. It
also respectfully seems to me that the court unequivocally rejected that proposition and
affirmed (under reference to Gribben) the long-standing practice that concurrence is required
for a contempt of court arising from a breach of interdict as a special case (the passage in
bold), but not for breach of any other kind of court order. That case, which is binding on me,
provides the conclusive answer to Mr Mitchell’s concurrence challenge.
[67] The case of Robb established that not all contempts of court are dealt with in the same
way; not all contempts of court constitute a crime and that there are long-established rules
particular to contempt of court arising from beaches of interdict. Robb affirmed that it is
only this class of contempt of court (ie for breach of interdict) which requires the
concurrence of the Lord Advocate. It expressly rejected extension of that rule to other
contempts of court. In particular, the fact that contempt of court proceedings were “penal”
was not sufficient to extend the rule about concurrence to contempt of court arising from
alleged breaches of non—interdict orders.
Page 37 ⇓
37
[68] What of the case of Gribben, founded on by Mr Mitchell? As Dr Johnston noted,
Mr Mitchell did not contend that that case was wrongly decided. Rather, Mr Mitchell
argued that Gribben justified a broadening of the rule requiring the Lord Advocate’s
concurrence to non—interdict contempt of court cases. In my view, this involves a
misreading of the issues discussed in, and the clear import of, Gribben. Gribben is a case of
the highest authority, being a decision of the First Division chaired by Lord President
Emslie. The case concerned the defender’s alleged breach of an interim interdict granted in
divorce proceedings against his molestation of the pursuer. The matter was brought before
the court by a minute in the ongoing proceedings, in reliance on section 6 (4) of the 1933 Act.
The concurrence of the Lord Advocate had not been obtained. The defender argued that the
Lord Advocate’s concurrence was necessary and the Lord Ordinary reported the case to the
Inner House.
[69] The Inner House confirmed the common law rule requiring the concurrence of the
Lord Advocate in proceedings for breach of interdict and found that this rule was not
affected by section 6 (4) of the 1933 Act. In addressing that matter, the court took the
opportunity to consider the basis for the rule and whether it should be maintained. This is
clear from the question it posed, namely “whether and to what extent, the rule ought now to
be followed”: see top of p 269. It answered that question as follows:
“There is no doubt that for almost 200 years the competency of a petition and
complaint for breach of interdict of any kind has depended upon the concurrence of
the Lord Advocate. This common law rule is stated in unequivocal terms in all the
text-books including MacLaren, Court of Session Practice where the matter is dealt
with at p. 131. The debate to which we have listened however has cast considerable
doubt upon the soundness of this general rule which has never been applied to any
other types of contempt of court which may also lead to punishment of the
offender. Most of the cases cited by the text-book writers in support of the rule
were concerned with attempts to deprive public officials or trustees of office on the
ground of malversation of office or breach of trust. In such cases it is easy to see
that the Lord Advocate’s responsibility for the public interest made his concurrence
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necessary. In only one case cited, viz., Duke of Northumberland v Harris (1832) 10 S.
366 was a complaint of breach of interdict involved. In that case the Lord Justice-
Clerk expressed the opinion obiter that the prayer of the petition was ‘highly penal’
and that the concourse of the Lord Advocate was necessary to make it competent.
Upon this somewhat flimsy foundation the rule of general application appears to rest
and the usual justification given for it is (a) that a breach of interdict is a criminal
offence, and (b) that proceedings by way of petition and complaint are of the nature
of a criminal proceeding or prosecution. Since the case of HMA v Airs 1975 S.L.T 177,
neither of these propositions can be maintained. A complaint of breach of interdict is
a complaint of disobedience of a competent order of the court. Such disobedience
constitutes contempt of court. It is an offence sui generis and where the court is
invited to entertain a complaint of disobedience of one of its orders no question of
criminal prosecution or quasi-criminal proceedings is involved.
In spite, however, of the considerable doubt which we entertain of the soundness of
the reasons commonly given for the application of the common law rule to all cases
of breach of interdict, the rule itself has been followed in practice for almost 200
years. That by itself might be a sufficient reason for not interfering with it, but there
are other reasons which lead us to hold that it ought to remain as a rule of general
application in all cases where complaint of breach of any interdict is made. It is
undoubtedly the case that the facts relied on to demonstrate breach of certain interdicts
would, if proved, also constitute a criminal offence. In such cases the Lord Advocate as the
public prosecutor has a clear interest and the necessity for his concurrence is justified upon
the view that no action should be taken by the court for contempt which might prejudice the
fairness of a prosecution or put the person alleged to be in breach of interdict in what would
in effect be double jeopardy. Although in many cases the facts alleged in complaints of
breach of interdict would not, if proved, constitute any criminal offence, the
advantage of the rule of general application to all complaints of breach of interdict
is that it absolves the complainer and the court from the responsibility of deciding in
doubtful cases whether the Lord Advocate, as public prosecutor, may have a
legitimate interest. In the circumstances of principle and expediency, and since,
through counsel, the Lord Advocate has informed us that he desires that the long-
standing general rule should continue to be applied we approve of its survival and
declare that it must also be applied henceforward in all cases in which the procedure
of s.6 (4) of the 1933 Act is invoked.” (Emphasis added by bold and italics.)
[70] I have set out the whole discussion because it is important to note that the court was
stepping back and undertaking a fundamental reappraisal of the rule requiring concurrence
in cases of breach of interdict. Upon a review of the cases, it noted that the rule had a
“flimsy” basis and that the conventional bases were unsound. The court might, therefore,
have dispensed with the rule as a relic. It didn’t. Notwithstanding these deficiencies, the
court nonetheless determined to confirm the rule requiring concurrence of the Lord
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Advocate in cases where a breach of interdict was alleged (see the passages in bold). The
principled basis for maintaining the rule was that set out in the italicised sentences in the
passage quoted above: to avoid prejudicing any subsequent criminal proceedings and
double jeopardy for the contemnor. To the extent that the court’s decision was based on
expediency, this was to apply the rule requiring concurrence to all breaches of interdict even
though not all breaches of interdict would constitute criminal conduct. A clear rule
applicable to all breaches of interdict was preferable rather than requiring parties to
speculate in advance whether a breach of interdict was likely to constitute criminal conduct.
[71] The difficulty with Mr Mitchell’s reading of and reliance on the case of Gribben is that
it is, in my view, fundamentally inconsistent with the discussion and decision in that case.
Given that the court had contemplated dispensing with the rule in its entirety, this case
could hardly provide the foundation for an extension of the rule, as Mr Mitchell sought to
do. Furthermore, the court expressly rejected the same basis for the argument (that the
“penal” character of contempt of court proceedings necessitated the concurrence of the Lord
Advocate) as advanced by Mr Mitchell. Having regard to the principled basis the court
identified as one reason for retaining the rule (see the italicised sentence in the passage
quoted at para [69], above), this did not arise in other forms of contempt of court. Such a
risk (of prejudicing criminal proceedings or exposing the contemnor to the risk of double
jeopardy) could arise only from a breach of interdict and not breach of any other form of
court order. Accordingly, in my view the case of Gribben, properly understood, is inimical to
Mr Mitchell’s principal position. In that case, the court undertook a fundamental
reappraisal of the rule. It affirmed the rule and did so only in respect of contempt arising
from breach of interdict. It identified a principled rationale for retaining the rule (of limited
application) and, for the sake of expediency, applied it to contempt proceedings for all
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breaches of interdict even though not all of these would constitute criminal conduct. The
court affirmed the survival of the rule in clearly circumscribed circumstances. The present
case does not fall within those circumstances.
The older authorities
[72] I did not find the passages from the text books on Scottish procedure to assist. They
confirmed the conventional attributes of contempt of court, identified by the parties.
Beyond recording some of these features, these passages afforded no support for
Mr Mitchell’s arguments in favour of the concurrence challenge. Nor did I find the older
cases Mr Mitchell cited to be of any assistance. They certainly did not support a proposition
that the courts routinely required the Lord Advocate’s concurrence for breaches of court
orders other than interdicts. The cases of Bell v Gow and Paterson v Robson sought to bring to
the attention of the court conduct by trustees in sequestration in the discharge of that public
office. In Bell v Gow the sanction sought was a fine and censure. In Paterson v Robson the
petitioner sought censure as well as an order directing the trustee’s intromissions with the
fund. In other words, both of these cases sought to bring the trustees’ conduct before the
court. Notwithstanding passing reference to the “penal” consequence of censure, in my
view these cases are squarely within a different jurisdiction recognised by the courts. This
was for malversation in public office and for which the Lord Advocate’s concurrence was
required to any petition and complaint. As identified by Lord President Emslie in Gribben,
the policy rationale was not as a consequence of the “penal” character of whatever sanction
the court might impose for such malversation; rather, the policy rationale for requiring the
Lord Advocate’s concurrence in this situation was because of the Lord Advocate’s
responsibility for the public interest: see the passage (in bold and italics) quoted at para [69],
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above. The second ground on which Lord President Inglis dismissed the petition in Paterson
v Robson (the first concerned certain failures to comply with the bankruptcy statute) was
because such petitions required the concurrence of the Lord Advocate (ie because of his
responsibility for the public interest) had nothing to do with the “penal” character of the
proceedings. Essentially the same approach was taken by the court a decade earlier in Bell v
Gow. In that case the Second Division of the Inner House, including Lord Inglis as Lord
Justice Clerk, expressed itself in general terms about the function of a petition and complaint
being the formal process by which a civil court was asked to inflict punishment and in
which, at common law, the concurrence of the Lord Advocate was required. However, it is
in my view important to note the context for those observations, namely, misconduct by a
person holding a public office (i.e. a trustee in bankruptcy). Classically, petitions and
complaints presented to bring the misconduct or malversation of a public office-holder
before the court required the concurrence of the Lord Advocate. The observations of the
court in Bell v Gow, even if expressed in general terms, afford no basis for an argument that
concurrence was required in respect of a broader range of court orders than interdicts; there
was no court order said to have been breached in those cases. Rather, the focus of the
petitions were the misconduct by a person holding a public position or office (as trustees in
sequestration do) or their breach of duty in that office. On these authorities, this was not
treated as a contempt of court at all but, rather, was clearly a distinct class of proceedings by
way of petition and complaint for which the Lord Advocate’s concurrence was required
because of his responsibility for the public interest.
[73] In the light of these authorities I find that there is no merit in Mr Mitchell’s
argument. While breach of interdict is a species of contempt of court, it is clear on the
authorities that the courts have consistently distinguished that form of contempt from others
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(e.g. arising from breach of a positive order or in the face of the court). Mr Mitchell’s
proposed conflation of positive and negative court orders cannot overcome the treatment of
breaches of interdict as a distinct class of contempt with a special rule. No case was cited in
which the Lord Advocate’s concurrence was required to a contempt of court involving an
order which was not an interdict. The policy rationale, identified in Gribben, has nothing to
do with the “penal” character of contempt of court proceedings generally. There is, in my
view, no justification for extending the rule, as Mr Mitchell invited me to do. In any event,
as noted above, a like argument was soundly, and for this court authoritatively, rejected in
Robb. For these reasons the respondent’s concurrence challenge fails.
Procedural argument
[74] As noted above, Mr Mitchell did not advance the procedural argument as a discrete
or free-standing challenge. Accordingly, any comments I make are strictly obiter.
[75] In relation to Mr Mitchell’s reliance on section 47(1) of the 1988 Act, as I understood
his argument he contended (for policy reasons) for a broad reading of this provision.
Whatever the underlying policy, it is in my view clear that this provision (and it statutory
predecessor in subsection 6(4) of the 1933 Act) is only concerned with interim interdicts. The
underlying order in these proceedings (ie the Interlocutor) is not an interdict, much less an
interim one. Accordingly, this affords no assistance in resolving the procedural argument.
The same may also be said of Mr Mitchell’s reliance on rules 14.2 and 14.3 of the Rules.
These rules do not provide an exhaustive code for all contempts of court. In terms, these
rules do not apply to the kind of underlying order on which this Minute is predicated.
Rule 14.2 (d) makes provision for a petition and complaint “for breach of interdict”. That is
not the form of applications here, nor the kind of order said to have been breached;
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therefore, rule 14.2 has no application. Furthermore, rule 14.3, which makes provision for
applications by petition to the Inner House, includes within its scope (in rule 14.3 (a)) a
“petition and complaint other than for breach of interdict”. The present proceedings are not
in the form of a petition and complaint. In any event, it is clear from the commentary at
paragraph 14.3.3 in the annotations to the Rules, that this rule is directed to that “rare”
circumstance involving misconduct in public office inter alia by officers of court and which
include trustees in sequestration. In other words, it is the means by which a complaint
against one holding public office or as an officer of court (such as a trustee in sequestration)
for malversation or misconduct is brought before the court. The seriousness of the
allegation is commensurate with it being made to the Inner House. This class of case reflects
the old cases of Bell v Gow and Paterson and Robson, which I have already addressed, above.
Properly construed, rule 14.3(a) does not require that all contempts of court proceed by
petition and complaint. Such a reading would in any event be inconsistent with the modern
practice that contempt for an alleged breach is brought to the notice of the court which
pronounced the original order.
[76] In my view, these provisions are not exhaustive as to the means for bringing
contempts of court committed outwith the court to its notice. I accept Dr Johnston’s
submission that, while these provisions might identify a means to bring certain forms of
contempt of court to the notice of the court (and while it may be prescriptive in those cases),
these procedures are not the only or prescribed means to do so for all other classes of
contempt.
[77] The court in Robb observed that the court has an inherent jurisdiction to deal with
cases of contempt in the exercise of its power “to maintain authority its authority and the
speedy and effectual advancement of justice”. On the cases, it is plain that the courts have
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dealt flexibly with many forms of contempt, e.g. in the face of the court, so long as the
procedure adopted was fair. (AB and CD v AT and CM v SM are recent examples dealing
particularly with what is and is not a fair procedure.) It respectfully seems to me that, in the
absence of a prescribed procedure in rule, statute or established practice, the court should
adopt a similar flexibility to deal with contempts of court committed outwith the court, so
long as the procedure adopted is fair and has the usual safeguards. This is consistent with
the court’s inherent jurisdiction and furthers the very purpose (including the “speedy and
effectual advancement of justice”) for which this power is exercised. In the instant
proceedings, a very full procedure has been adopted: the respondent has had due notice of
the alleged contempt (in the form of the minute) and has had opportunity to respond (in the
form of answers). Further, the proof to follow will be indistinguishable from a full proof in a
commercial action and all of the procedures, safeguards and formalities that that entails. In
my view, the procedural argument is without merit.
[78] For completeness, I should record that, as I understood Mr Mitchell, at one point he
appeared to accept that proceedings could be brought in the Outer House, so long as they
proceeded by petition and complaint. It should be noted that the distinction between
different forms of proceedings (in particular between petition procedure and ordinary
actions) is soon to be abolished. These forms of proceeding are indistinguishable in terms of
the procedural safeguards they afford and the mode for proof of the alleged conduct. To
uphold this argument would impose a formalism which has not, hitherto, been applied to
contempt of court proceedings not concerned with breach of interdicts.
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Decision
[79] The respondent’s plea to the competency falls to be repelled. I shall reserve
meantime all question of expenses.