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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> CUNNINGHAM AGAINST (FIRST) ANTHONY ARTER, PENSIONS OMBUDSMAN; (SECOND) KAREN JOHNSTON, DEPUTY PENSIONS OMBUDSMAN; and (THIRD) NAMULAS PENSION TRUSTEES LTD [2019] ScotCS CSIH_48 (13 September 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_48.html
Cite as: [2019] ScotCS CSIH_48, 2019 SLT 1361, [2019] CSIH 48, 2019 GWD 30-472
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INNER HOUSE, COURT OF SESSION
[2019] CSIH 48
XA64/19
Lord Brodie
OPINION OF LORD BRODIE
in the note by
by
NEIL CUNNINGHAM
Noter
against
(FIRST) ANTHONY ARTER, PENSIONS OMBUDSMAN; (SECOND) KAREN JOHNSTON,
DEPUTY PENSIONS OMBUDSMAN; and (THIRD) NAMULAS PENSION TRUSTEES
LIMITED
Respondents
Noter: Byrne; Lindsays Solicitors
First and Second Respondents: MacGregor, sol adv; Pinsent Masons LLP
Third Respondent: P Reid; CMS Cameron McKenna Nabarro Olswang LLP
13 September 2019
Introduction
[1] The noter is Neil Cunningham. He is a solicitor by profession. He is resident in
Milngavie, within the district of Dumbarton Sheriff Court. He has lodged a Note in terms of
RCS 41.11 seeking an order to ordain the Deputy Pensions Ombudsman (the “DPO”) to state
a case for the opinion of the Court of Session on the questions of law which, having
previously been set out in a minute sent to the DPO, are repeated at statement 8 of the Note.
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2
Incidental to the prayer of the note is an application, in terms of RCS 2.1(1), to relieve the
noter from the consequences of a failure to comply with a provision in the Rules of Court.
That incidental application came before me, sitting as a procedural judge in terms of RCS
37A.1(2)(d)(i), as a single bill on 6 August 2019.
[2] The noter avers that by form dated 1 February 2016 he made a complaint (the
“Complaint”) to the Pensions Ombudsman (the “PO”) further to section 146 of the Pension
Schemes Act 1993 (the 1993 Act) concerning his rights as a beneficiary of a self-invested
personal pension, or SIPP, of which Namulas Pension Trustees (“Namulas”) is the sole
trustee. The Complaint concerned what the noter saw as failures on the part of Namulas in
its management and sale of heritable properties in which the SIPP had a 50% interest, in
consequence of which the noter, as beneficiary of the SIPP, had suffered loss. Karen
Johnston, (the “DPO”), exercising the same functions as the PO in terms of section 145A of
the 1993 Act, issued a determination (the “Determination”) of the Complaint dated
11 January 2019. The noter received the Determination by post on 14 January 2019. The
Determination held that the noter’s complaint should not be upheld. The noter avers that in
terms of section 151(3) of the 1993 Act a determination by the PO of a complaint is “final and
binding”, subject only to the statutory right of appeal.
[3] Section 151(4) of the Pension Schemes Act 1993 provides that an appeal on a point of
law may be taken to the Court of Session from a determination of the Pensions Ombudsman.
It is convenient to note the full terms of the subsection, which are as follows:
“(4) An appeal on a point of law shall lie to the High Court or, in Scotland, the Court
of Session from a determination or direction of the Pensions Ombudsman at the
instance of any person falling within paragraphs (a) to (c) of subsection (3).”
Provision for an appeal to the Court of Session under section 151(4) is made by the Rules of
Court as follows:
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3
In terms of RCS 41.49:
“41.49. A reference or appeal under any of the following provisions shall be by
stated case to which Part II (appeals by stated case etc.) shall apply ... (b) an appeal
under section 151(4) of the Pension Schemes Act 1993;”
In terms of RCS 41.8:
“41.8—(1) An application for a case for the opinion of the court on any question shall
be made by minute setting out the question on which the case is applied for.
(2) A minute under paragraph (1) shall be sent to the clerk of the tribunal
...
(b) where the application may be made after the issue of the decision of the
tribunal, within the period mentioned in paragraph (3);
...
(3) The period referred to in paragraph (2)(b) and (c) is —
(a) the period prescribed by the enactment under which the appeal is made;
or
(b) where no such period is prescribed, within 14 days after the issue of the
decision or statement of reasons, as the case may be.”
[4] Thus, although the 1993 Act does not prescribe the manner in which an appeal to the
Court of Session may be made or the period within which it is to be made, the applicable
Rules of Court require that an appeal against the Determination must be made by way of an
appeal by stated case for the opinion of the Court and that the appeal has to be initiated by
an application to the relevant administrative officer of the DPO within 14 days after the
issue of her decision, that is no later than 28 January 2019 (or 25 January 2019 if, as I
understood to be the position of parties, “issue of the decision of the tribunal” is to be
equated with posting of the Determination). As the authorised claimant in question the
noter is a “person falling within paragraphs (a) to (c) of subsection (3).” The noter wishes to
appeal from the Determination to the Court of Session on point of law. However, the noter
only applied to the DPO to state a case by way of minute on 7 June 2019. Thus, as the noter
accepts, on no view did he make an application for a stated case within 14 days after the
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4
issue of the DPO’s decision. It is from the consequences of that failure that the noter applies
to be relieved.
[5] The PO and the DPO have lodged Answers to the Note in which they are designated
as, respectively first and second respondents. The PO and the DPO have also lodged a note
of objections to the competency of an appeal under statute in terms of RCS 41.5, as has
Namulas (designating itself third respondent). Strictly speaking, the notes of objection are
procedurally inept. The DPO has refused to state a case. No appeal has as yet been made
and thus there is nothing to which objection may be made in terms of RCS 41.5. Nothing
however arises from this. Parties were agreed that the noter cannot make an application for
a stated case unless he is relieved from the consequences of his failure to do so within
14 days of issue of the Determination. The PO, the DPO and Namulas (collectively the
“respondents”) have made clear their wish to contend that the noter should not be relieved
of his failure. That matter requires to be decided.
[6] The respondents do not suggest otherwise, but having had the benefit of citation of
the relevant authorities and by way of clearing the ground, I should make clear that this is a
case where it is competent to apply RCS 2.1 according to its terms and, having done so, to
ordain the DPO to state a case, thus entertaining a late statutory appeal. As is explained in
the opinion of the Court delivered by the Lord President in Neilly v The Nursing and
Midwifery Council [2019] CSIH 32, it will not always be the case that RCS 2.1 can be used in
this way in order to excuse the lateness of a statutory appeal, The issue addressed in Neilly
does not arise in the present case. The 1993 Act does not provide any time limit within
which an appeal must be made. The applicable time limit is entirely derived from the Rules
of Court. The RCS 2.1 discretion is therefore available to be exercised according to its terms.
The question is simply whether in all the circumstances of the case it should be.
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History
Events prior to 14 January 2019
[7] The noter received the Determination on 14 January 2019. Something emphasised by
Mr Byrne, who appeared on behalf of the noter, was the length of time that the DPO had
taken to determine the Complaint. It had been made on 1 February 2016. The DPO had
issued the Determination on 11 January 2019. The period between these dates was nearly
three years. This fell to be contrasted with the 11 months within which the PO sets himself
to determine complaints. It also fell to be contrasted with the 14 day period within which a
party must request a stated case. When Ms MacGregor came to respond on behalf of the PO
and DPO she accepted that the period over which the Complaint had been considered had
been lengthy but she explained that this had been because of the very many queries and
comments (she had counted 15 in all) which the noter had submitted to the DPO in the
course of her investigation.
[8] The DPO issued a preliminary determination (the “Preliminary Determination”) on
7 February 2018. The noter avers that thereafter he provided the DPO with extensive and
detailed comments on the Preliminary Determination pointing out various factual and legal
errors. It would appear that the noter became dissatisfied with the DPO’s response. He
avers:
“By August 2018 the Noter concluded that the Complaint was not going to be dealt
with properly and that he had no choice but to seek an alternative forum in order to
obtain a fair hearing. Accordingly, he raised proceedings against Namulas in
Dumbarton Sheriff Court.”
[9] In terms of Rule 4(b) of the Personal and Occupational Pension Schemes (Pensions
Ombudsman) (Procedure) Rules 1995 a complainant may withdraw his complaint at any
time with the leave of the PO, which leave shall not be unreasonably refused. As I
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understand the noter’s position it is that while he may not have submitted a formal notice of
withdrawal to the PO, by reason of his raising the Sheriff Court action and the terms of his
correspondence with the DPO in relation to that action, and perhaps more generally, he
should be deemed to have requested to withdraw his complaint under Rule 4(b) and that
either the DPO issued the Determination before she determined his deemed request or she
refused his request unreasonably. That position and its relationship with the proceedings in
Dumbarton Sheriff Court are set out in averment in the Note as follows:
“By email dated 24 August 2018 the Noter wrote to the PO’s office to confirm that
‘[The Pensions Ombudsman] will no longer be dealing with my complaint about
Namulas. The matter is now the subject of formal litigation proceedings pursuant to
a warrant granted by the Court earlier this week.’ By letter dated 4 September 2018,
the DPO responded to the Noter’s email, outlining three potential courses of action,
being granting [sic] leave in terms of Rule 4 of the Rules to withdraw the complaint,
discontinuing the investigation in terms of Rule 16(1)(c), or continuing with the
investigation and making a final determination. The DPO invited the Noter and
Namulas for comments [sic] on the three options by 18 September 2018. By email
dated 18 September 2018, the Noter wrote to the PO setting out in detail his concerns
about the manner in which the Complaint had been handled and expressing the view
that any determination would be a ‘legal nullity’. He expressed the view that the
office of the PO had shown itself to be unable or unwilling to fulfil its statutory
responsibilities and referred once again to the fact that the issues in the Complaint
would be determined by the Sheriff at Dumbarton and not by [the] PO.
In the meantime, Namulas had enrolled a motion in Dumbarton Sheriff Court to sist
the cause in terms of section 148 of the 1993 Act. As a result of an error on the part of
the Noter’s then agents, the motion to sist was not opposed by the last date for
opposition, which was 18 September 2018. By letter dated 5 November 2018, a
representative from the office of the PO wrote to the Noter to confirm that, in light of
the fact that the motion to sist had not been opposed, the DPO would proceed to
consider the parties’ representations made in respect of the Preliminary
Determination.
On 12 November 2018, the Noter’s new agents enrolled, and intimated to Namulas, a
motion for the sist to be recalled. The motion for recall was opposed and called
before the Sheriff in Dumbarton on 4 December 2018. At that hearing the motion
was continued until 15 January 2019. By email dated 4 December 2018 the Noter
wrote by email to the PO (copied to the DPO) to confirm that the motion for recall
had been continued until 15 January 2019 and to reiterate his view that any
determination issued by the DPO would be a nullity. It was therefore clear to the
DPO as at 4 December 2018 that the fact that the sist had not been opposed should
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not be taken as an acceptance by the Noter that the DPO should proceed to issue her
determination. Before the continued motion could be heard, the DPO issued her
Determination without further consideration of whether or not the Noter should be
allowed to withdraw his complaint. Namulas now relies on the Determination to
support a plea of res judicata in the Sheriff Court action.”
[10] Mr Byrne explained that as a result of two communications in 2018 the noter had
come to understand that the means of challenging the Determination was by way of an
application for judicial review. The first of these communications was in June 2018 when an
officer of the PO, a Mr Thomas Coutts, advised the noter that if he “was unhappy with
anything that [Mr Coutts] had done” his remedy was judicial review. The second
communication was a conversation with senior counsel who had been instructed on behalf
of the noter in relation to a hearing in Dumbarton Sheriff Court on 4 December 2018. I shall
return to consider the relevance of this misunderstanding (of what may have been entirely
correct advice) later in this opinion.
Events subsequent to 14 January 2019
[11] The Determination was sent to the noter on 11 January 2019 and received by him on
14 January. It was issued together with a “factsheet”. The factsheet promises to explain
about a number of matters including “Appealing the Determination”. The section begins:
“Appeals are to the Chancery Division of the High Court in England and Wales, the
Court of Session in Scotland or the Court of Appeal in Northern Ireland.
The Ombudsman has directed for England and Wales that the person wishing to
appeal must lodge the appeal within 28 days after the date of the Ombudsman
determination. Different time limits apply in Scotland and in Northern Ireland and
local advice should be taken.”
In what follows the only further reference to Scottish procedure is the information in a
somewhat cryptic footnote to the sentence “If you appeal the Ombudsman should not be
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8
listed as a respondent in the Notice of Appeal”. The footnote reads: “Unless appeal lodged
in Scotland or Northern Ireland and by way of case stated.”
[12] The noter explains that on receipt of the Determination on 14 January 2019 he spent
considerable time in trying to understand the extent to which the DPO had had regard to his
comments on the Preliminary Determination and the extent to which her reasoning had
changed in response to these comments. Consistent with the noter’s understanding that his
remedy was by way of judicial review the noter prepared a 79 page “Judicial Review
Document” containing what Mr Byrne described as a forensic analysis of the Determination
for the use of counsel.
[13] On 28 January 2019 the noter contacted junior counsel with a view to appealing the
Determination. The junior counsel first contacted was unable to deal with the matter and
the noter contacted another junior on 29 January 2019. On 30 January he contacted, and on
31 January 2019 he instructed, agents who, in turn, instructed counsel. On 31 January junior
counsel advised that he thought that appeal of the Determination might be subject to the
14 day time limit. On 15 February 2019 junior counsel provided a note advising on the
merits of the appeal and confirming that the time limit had elapsed. He advised that senior
counsel be instructed. Senior counsel was instructed on 18 February 2019 and on the same
day he advised that, as was provided by RCS 41.8, the applicable time limit was 14 days and
that the noter would accordingly need to apply to the Court to exercise its discretion in
terms of RCS 2.1. A draft application for a stated case had been prepared by 25 February
2019.
[14] By email of 19 February 2019 the noter’s agents wrote to the DPO to ask whether,
given the expiry of the time limit, the DPO would refuse to state a case. The DPO, through
her in-house legal manager, responded on 20 February 2019 to advise that the PO’s office
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9
was unable to agree to state a case and that it awaited further “correspondence” from the
noter’s agents and/or the Court. On advice, the noter’s agents applied to the DPO by minute
to state a case but not until 7 June 2019. The DPO has not corresponded further with the
noter or his agents. She has not issued a certificate specifying the date of her decision and
the reason for failing to state a case pursuant to RCS 41.10(4)(a) and RCS 41.11.
[15] Between 19 February and 7 June it would appear that the noter’s attention was given
to the action in Dumbarton Sheriff Court. A very substantial and elaborate (and as Mr Byrne
acknowledged, entirely misconceived) Minute of Amendment was prepared, as I
understood it largely, if not exclusively, by the noter himself. The Minute of Amendment
reflected the view that the Court of Session could only properly consider his appeal once the
Sheriff Court had granted certain declarators as to matters of fact. When he came to make
his submissions, counsel for Namulas, Mr Reid, provided a timeline in relation to the Sheriff
Court action in relation to the period subsequent to 14 January. The final day for adjustment
was 12 March 2019. It passed without adjustments being intimated by the noter. There was
an options hearing in the Sheriff Court on 26 March. Limited and late adjustments (to alter
the pleas-in-law) were proposed on 12 April. A debate was ordered on 23 April. The
Minute of Amendment was intimated on 3 June and on 10 June it was moved that it be
received, it being explained that its objective was to make better progress with the appeal to
the Court of Session.
Submissions
[16] On behalf of the noter, Mr Byrne accepted that the noter had made mistakes. He had
been responsible for oversights. The noter was a solicitor, which might give rise to certain
expectations but in this case there was an element of “a little bit of knowledge is a dangerous
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thing”. After 14 January the noter had engaged in furious but misconceived activity in order
to put counsel in a position to understand the case. Until he received the advice of junior
counsel the noter had not been aware of the 14 day time limit. Had the factsheet crisply
stated that he had 14 days to appeal it is entirely possible that the noter would have been
disabused of his belief that the remedy was judicial review and been directed to the need to
appeal within what was a very tight deadline. The dispensing power conferred by RCS 2.1
was available to relieve the consequences of a failure to meet a time-limit imposed by the
Rules of Court where it had arisen from mistake or oversight. It was not necessary to show
There was no prejudice to the respondents other than Namulas losing a windfall benefit.
Here the time-limit in question had been very short. The delay of some four months was not
over-long. It could be contrasted with the period of nearly three years which the DPO had
taken in her consideration of the Complaint; what was “sauce for the goose was sauce for
the gander”. The case was of great significance to the noter. He considered that his pension
fund had suffered a loss in the order of £300,000 to £400,000 as a result of mismanagement
by Namulas. Without conceding the point, the Determination would appear to give rise to a
plea of res judicata as against any damages claim by the noter against Namulas. There was
no remedy available against the PO. The noter would concede the respondents’ expenses.
[17] On behalf of the PO and DPO, Ms MacGregor submitted that the noter should not be
relieved of his failure to bring an appeal in time. He was a solicitor. There was a need to
proceed with a degree of expedition. Ms MacGregor took me through the terms of the Note.
His failure to request the DPO to state a case until 7 June 2019 was a decision made by the
noter contrary to advice he had received from senior counsel. It was not the result of a
mistake and it was not excusable. Ms MacGregor accepted that she could not point to
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prejudice to the PO or DPO in the event of the noter being granted relief but the PO was part
of a statutory system the efficiency of which required adherence to time limits. As far as the
terms of the factsheet were concerned, the PO was considering amending it.
[18] On behalf of Namulas, Mr Reid moved me to refuse the noter’s application. The
position might have been different had this application been being considered in the Spring,
shortly after the noter’s legal advisers had prepared a draft application for a stated case, but
the noter had let time go by and was seeking recourse to RCS 2.1 in August. The provision
conferred a wide equitable power but Namulas wished finality. Mr Reid pointed to the
history of the matter, including events in Dumbarton Sheriff Court; until 3 June Namulas
was not aware that the noter intended to pursue an appeal from the Determination. The
noter had opted for the complaint procedure; he had not been compelled to do so. The price
for the benefits of making a statutory complaint was the finality associated with section 151
of the 1993 Act. It was now some three and a half years since the Complaint had been made.
To allow relief in terms of RCS 2.1 where the delay had been caused by a misconceived
decision by the noter would be to undermine the legislature’s desire for the finality which
Namulas was entitled to expect no later than 12 April when there had been no pleading
from the noter to meet the section 151 point.
[19] In a brief second speech, Mr Byrne expressed the wish to make clear that the present
instructing solicitors had only been instructed in March 2019. No weight should be placed
on the failure to adjust in the Sheriff Court action. RCS 2.1 allowed relief to be granted
where the failure in question was due to any excusable cause. The court had a wide
discretion. Here there had been mistakes which had caused non-compliance. This was not a
case where there had been a deliberate decision not to appeal to this court. The respondents’
submissions to that effect should be rejected. In the mind of the noter his steps to obtain
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declarators from the Sheriff Court were steps in advancing the appeal. The first and second
respondents had candidly admitted that they would not suffer prejudice in the event of the
RCS 2.1 discretion being exercised in favour of the noter. Moreover they had recognised
that the factsheet was sufficiently deficient to require amendment. Mr Byrne renewed his
motion.
Decision
[20] RCS 2.1 provides:
“2.1 - (1) The court may relieve a party from the consequences of a failure to comply
with a provision in these Rules shown to be due to mistake, oversight or other
excusable cause on such conditions, if any, as the court thinks fit.
(2) Where the court relieves a party from the consequences of a failure to comply
with a provision in these Rules under paragraph (1), the court may pronounce such
interlocutor as it thinks fit to enable the cause to proceed as if the failure to comply
with the provision had not occurred.”
[21] Relying on the provisions of RCS 2.1, the noter invites the court to exercise its
discretion to relieve him of the consequences of his failure to send a minute to the DPO
within the period prescribed by RCS 41.8. In addition to their respective oral submissions
which I have recorded above, parties lodged notes of argument. The PO, DPO and Namulas
(collectively “the respondents”) there contend that there is no proper basis upon which the
discretion conferred by RCS 2.1 can be exercised in favour of the noter. The PO and the
DPO further contend that, in any event, the questions in the Note on which the DPO is
required to state a case do not disclose any points of law which ought to be determined.
[22] Parties were agreed that an authoritative source of guidance as to the exercise of the
discretion conferred by RCS 2.1, in circumstances such as the present, is found in the opinion
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of the Court delivered by the Lord President (Carloway) in Lilburn v The Pensions
Ombudsman and Others. At paragraphs 18 and 19 the Lord President said this:
“[18] RCS 2.1 allows the court to relieve a party from the consequence of any failure
to comply with the rules where the failure has been caused by a "mistake, oversight
or other excusable cause". The purpose of the power is to achieve justice between the
parties, where such justice would not be achieved otherwise because of a procedural
failure. …
[19] RCS 2.1 does not require any exceptional or extraordinary circumstances (Semple
Cochrane v Hughes 2001 SLT 1121), Lord Carloway at para [10] citing the correct
version [of RCS 2.1], but it does require there to be a ‘failure’ to comply with the
rules. It is not normally open to the court to use the power to reverse an action
which has been deliberately taken (Anderson v British Coal Corporation 1992 SLT 398,
LJC (Ross), delivering the Opinion of the Court, at 401).”
[23] The discretion therefore is a wide one. There are, however, certain parameters. A
failure, the consequences of which may be relieved, will often, although not necessarily,
have been caused by mistake or oversight, but whatever the cause, that cause will require to
be identified in order to determine whether it is “excusable”. Where the cause is a deliberate
decision to do or to refrain from doing something that will not normally be a case for the
exercise of the discretion.
[24] An application for exercise of the dispensing power almost always arises in
circumstances where, in the words of Lord President Normand in Dalgety's Trs v Drummond
1938 SC 709 at 715, a member of the legal profession has acted in ignorance of the Rules of
Court and of the provisions which they contain. That is not the case here. The relevant
decision-maker was the noter, albeit, as Mr Byrne put it, the noter had been “advised at
every turn” (I would observe that during the hearing the noter was present in court and
Mr Byrne was able to, and did, take instructions directly from him on matters of detail).
With that and the considerations pointed to in Lilburn in view, I have thought it important to
try to understand why the noter acted as he did. Despite having had the assistance of
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Mr Byrne I have not found that very easy to do; Mr Byrne’s observation that “a little
knowledge is a dangerous thing” may be as apposite as any.
[25] I have already mentioned that Mr Byrne explained that, notwithstanding what
appeared in the factsheet, the noter had understood that the means of challenging the
Determination was by way of an application for judicial review. I understood from what
Mr Byrne told me that the noter had thought that, whatever might be the case in England
and Wales, there was no statutory appeal available in Scotland. From that I supposed that
the noter understood, at least in general terms, the difference between judicial review and a
statutory appeal. I wondered however how what I had been told about the noter’s belief
squared with what appeared in the factsheet. I raised the point with Mr Byrne. Having
taken instructions, Mr Byrne explained that my supposition that the noter understood the
differences between judicial review and a statutory appeal and might have therefore been
misled into thinking that the time limit for a statutory appeal did not apply, was incorrect;
the noter had not understood that judicial review and statutory appeal were distinct
processes (as I noted Mr Byrne, he said that: “the noter, as a non-litigation lawyer, does not
understand the distinction between a judicial review and an appeal”). If that is so, the noter
thinking that his remedy was something called “judicial review” would appear to be of no
particular significance. It occurred to me that the noter may have confused perfectly sound
advice he had received in 2018 as to the means of challenging the procedures adopted by the
DPO with the means available to challenge her Determination once it was made, but,
contrary to what appeared to be being suggested by Mr Byrne at one stage, any error in this
respect does not seem to have had any impact on the noter’s decision-making subsequent to
14 January 2019. I therefore leave it aside.
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[26] I accept, however, as the noter avers, that he was ignorant of the 14 day time limit
until junior counsel advised him of it on a preliminary basis on 31 January 2019. I also
accept that the time allowed by the Rules of Court within which to make an appeal against a
determination by the PO (by requesting him to state a case) is very short. In some cases it
may be impracticably short. The recipient of a determination will of course only know what
he is faced with if he is aware of what the time limit is. As a means of drawing attention to
what that is in Scotland, I consider that the terms of the factsheet attached to the
Determination merited Mr Byrne’s strictures (the PO’s history in relation to this matter has
not been a very happy one: see City of Edinburgh Council v Rapley 2000 SC 78 at 79 and 80;
and Lilburn v Pensions Ombudsman at para [9]). That said, exiguous as the information
provided by the factsheet may have been, it did at least mention the availability of an appeal
and the fact that an appeal was subject to an (undisclosed) time-limit. A prudent recipient of
the Determination, particularly one who was a solicitor, might have been expected to take
immediate competent advice as to when and how he should go about appealing, if that is
what he wished to do. Nevertheless, as Mr Reid acknowledged, if relief in terms of RCS 2.1
had been applied for shortly after 31 January or even shortly after 25 February 2019, by
which time the noter had been advised by senior counsel and a draft application for a stated
case had been prepared, the noter would have been able to advance quite a persuasive
argument. The noter might have said (as Mr Byrne argued could still be said) that he had
taken active steps to instruct litigation solicitors and counsel; that he had done this as
speedily as possible; that had the ordinary allowance of 42 days under chapter 41 of RCS
applied he would have had until 25 February to lodge an appeal; and that 14 day time limit
of RCS 41.8 is anomalously short which does not give, in cases of complexity such as this,
sufficient time for the preparation and composition of an application.
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[27] I agree with Mr Reid that the noter’s application has a rather different appearance
when looked at from the perspective of August (or perhaps, more properly, early June) than
when looked at from the perspective of late February. Mr Byrne explained the delay after
25 February as referable to the noter’s belief (unsupported, as I would understand it, by the
senior counsel whom he had instructed) that to enable the Court of Session to make an
informed decision as to whether the Determination contained errors of law it would first be
necessary to seek declarator in the Dumbarton Sheriff Court action as to material facts which
the DPO had, according to the noter, in bad faith omitted from the Determination, a belief of
which the noter was not disabused until 6 to 7 June, following which he acted quickly.
Thus, despite having received correct advice and being in a position to apply to this court no
later than 25 February 2019, the noter did not do so but embarked upon what Mr Byrne
described as a misconceived procedure in Dumbarton Sheriff Court. It was only on 7 June
2019 that the noter applied to the DPO to state a case and lodged his note with the court.
[28] Here the noter’s failure to comply with the Rules of Court had occurred by the dates
in February that the noter had received the advice of junior and then senior counsel.
Accordingly, his frankly incomprehensible decision not to follow that advice did not cause
his non-compliance. I therefore consider that decision does not prevent an exercise of the
RCS 2.1 discretion in his favour. However, the noter’s subsequent delay in acting on
counsel’s advice is a factor which weighs against an exercise of that discretion. The PO and
the DPO contend that the questions in the note do not disclose any points of law. While I
see some force in that contention, given the potentially wide scope of appeal on point of law
as identified for example in R (Iran) v Secretary of State for the Home Department ([2005] EWCA
892), I consider it inappropriate to attach weight to this. The respondents have not pointed
to prejudice consequential on allowing the noter relief, beyond loss to Namulas of the
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finality which it might reasonably have considered had been attained. The noter, on the
other hand, may, if deprived of the opportunity to appeal the Determination, lose any
chance of recovering what he considers to be substantial losses incurred by his SIPP.
Balancing these various factors as best I can, I will, albeit with some hesitation relieve the
noter of the consequences of his failure to comply with requirements of the Rules of Court,
on the condition that he be found liable to the first, second and third respondents in the
judicial expenses consequent on the presentation of the Note and all procedure following
thereon.