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Redcroft Care Homes Ltd against City of Edinburgh Council [2024] CSIH 34 (23 October 2024)
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[2024] CSIH 34
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2024] CSIH 34
P625/22
Lord President
Lady Wise
Lord Beckett
OPINION OF THE COURT
delivered by LORD CARLOWAY, THE LORD PRESIDENT
in the petition by
REDCROFT CARE HOMES LTD
Petitioners and Reclaimers
against
CITY OF EDINBURGH COUNCIL
Respondents
____________
Petitioners and Reclaimers: Edwards; BTO Solicitors LLP
Respondents: MacNeill KC; D Anderson; The City of Edinburgh Council
23 October 2024
Introduction
[1]
The petitioners operate Redcroft House. This is a residential care facility for adults
with learning difficulties and complex needs. The petitioners seek judicial review of the
respondents' refusal to pay the petitioners a sum to cover a funding deficit which arose
2
between February 2019 and October 2020, when the facility was under investigation and the
number of residents had declined. The Lord Ordinary dismissed the petition as
incompetent on the basis that the respondents' decision was contractual and not amenable to
the court's supervisory jurisdiction. In this reclaiming motion (appeal), the petitioners
contend that the Lord Ordinary erred in reaching this conclusion. The appeal concerns the
scope of the supervisory jurisdiction.
Legislation
[2]
Under the Social Work (Scotland) Act 1968, local authorities have a duty to promote
social welfare by various means. It provides:
"12.-- General social welfare services of local authorities.
(1)
It shall be the duty of every local authority to promote social welfare by
making available advice, guidance and assistance on such a scale as may be
appropriate for their area, and in that behalf (sic) to make arrangements and
to provide or secure the provision of such facilities ... as they may consider
suitable and adequate, and such assistance may ... be given in kind or in cash
to, or in respect of, any relevant person."
A relevant person is defined (s 12(2)) as a person who is not less than eighteen years of age
and who:
"(2) ... is in need requiring assistance in kind or, in exceptional circumstances
constituting an emergency, in cash ...".
The Local Government (Scotland) Act 1973 provides (s 69(1)) that a local authority has
power to do any thing which "is calculated to facilitate, or is conducive or incidental to, the
discharge of any of their functions".
Background
[3]
The petitioners provide residential care services in the Edinburgh area, including at
3
Redcroft House. Through a partnership with NHS Lothian, the respondents are responsible
for resourcing and operating a range of health and social care services (see Public Bodies
(Joint Working) (Scotland) Act 2014, s 1(3)).
[4]
The petitioners contracted with the respondents to provide 24 hour care services to
the residents at Redcroft under a Framework Agreement dated 2014. The Agreement does
not stipulate how many persons are to be in residence. It does state that the petitioners are
to be paid a fixed amount per week. It was not disputed that the stipulated figure was per
resident (clause 5.1 and Schedule Part 2). The amount was originally £785 per week, but it
had risen to £972 by 2022. Separate charges were to be levied for additional services, where
the cost had been agreed in advance (clauses 2 and 5.6). If a resident requested, the
respondents could make a direct payment to the resident, instead of to the petitioners, so
that the resident could purchase the required services. If the respondents made a direct
payment, they would reduce any payment made to the petitioners accordingly (clause 7).
[5]
In 2018, the petitioners were being paid for nine residents. In February 2019, the
respondents began a "large scale investigation" into various aspects of the care being
provided by the petitioners. This included overcrowding. A moratorium was put in place
on any new placements; no new residents would be admitted. It was not suggested that
there was anything unlawful or unreasonable about the investigation or the moratorium.
The investigation continued until October 2020. During that period, two residents left
Redcroft and a third died; reducing the number from nine to six. One outcome of the
investigation was that the maximum number of residents at Redcroft was fixed at six.
[6]
According to the petitioners, operating Redcroft with funding for only six residents
rendered the business unprofitable. The petitioners requested additional payments from the
respondents. The first was for £253,257 in respect of "waken" night care from January 2019
4
until March 2022. The second was for £284,100.78. This was said to represent the funding
deficit caused by the reduction in the occupancy rate after the moratorium and until a new
Framework Agreement was negotiated.
[7]
Between December 2021 and June 2022 various meetings were held at which the two
claims for payment were discussed. The petitioners aver that they had understood that it
had been agreed that they were entitled to the sums claimed, provided that vouching was
forthcoming. Correspondence was exchanged. An email dated 9 February 2022 was sent to
the petitioners from the respondents' Contracts Officer. This stated:
"Firstly, regarding the discussed statement of how the costs arose and why payment
is needed ... we would need onfirmation (sic) that this payment will be put towards
the refurbishment ... [T]he work is required as part of the service and whatever
payment is made will definitely be used for this work will aid in receiving a positive
result. I am aware you have emailed me some information of this but I feel having it
in writing as part of the full statement on the `backpayment' ... will be helpful.
Regarding the rate, below are the 1 to 1 and day care rates I have been able to find for
2018 until present. These are not for calculating staffing hours for the core costs but
instead to help you factor in the 1 to 1 and day care figures received and separate the
core costs from the total payments etc received and the total expenses where
relevant.
...".
[8]
By letter dated 6 May 2022, the respondents' Interim Contracts Manager stated that
the claim for the cost of providing waken night care had been accepted. The second claim
for backdated occupancy payments was refused. The letter stated:
"A further request was made ... for backdated funding for the amount of
£284,100.78 to cover for a deficit caused by a reduction in occupancy rates. I can
confirm that the Executive Management Team did not support this request on the
basis that the care home was subject to a Large Scale Investigation during the period
of this claim, part of which saw a moratorium on placements to the care home to
safeguard existing residents."
[9]
The petitioners crave the court to quash the decision, which was intimated by this
letter, on the grounds that it was: irrational, unreasonable, made in breach of the petitioners'
5
legitimate expectation; and procedurally unfair. The petitioners aver that they did not know
that the investigation would be taken into account in the decision on the backdated
occupancy payment. The respondents contend that the decision was a commercial one,
resulting from contractual negotiations. It was not subject to the court's supervisory
jurisdiction.
Procedure
[10]
The petition was lodged in August 2022. RCS 58.3(4) requires a petitioner to lodge
all relevant documents which are in his possession and to append a schedule to the petition
specifying any documents upon which he intends to rely and which are outwith his control
(see also Practice Note No. 3 of 2017: Judicial Review paras 32 and 33). No such schedule was
appended. Permission to proceed was granted by the Lord Ordinary on 28 September 2022,
with 16 December being appointed as the substantive hearing. Parties were asked to mark
up any documents, upon which they intended to rely, in advance of a procedural hearing on
8 November. On 11 November the substantive hearing was discharged and the petition
sisted for eight weeks and then, on 9 January 2023, for a further six weeks. On 27 April, a
new date of 14 July was fixed for the substantive hearing. On 14 June 2023 the petitioners'
motion, for the recovery of a copy of the Executive Management Team minutes and any
prior correspondence, was refused as coming too late. On 7 July, a motion to approve a
specification of the same documents was also refused. The substantive hearing proceeded
as scheduled.
6
The Lord Ordinary's decision
[11]
By interlocutor of 21 December 2023, the petition was dismissed as incompetent. The
Lord Ordinary reasoned that the court's supervisory jurisdiction was only engaged when a
public authority possessed a legally circumscribed jurisdiction, power or authority and the
court was called upon to ensure that the authority exercised its functions within these
limitations (Crocket v Tantallon Golf Club 2005 SLT 663 at para [37]). Whether a decision was
one to which the supervisory jurisdiction applied depended upon the nature of the act or
decision under challenge (Gray v Braid Logistics (UK) 2015 SC 222 at para [23]).
[12]
The Framework Agreement governed the provision of care services. It did not
provide a contractual basis for the occupancy rate claim. The respondents had to decide
whether it was appropriate to make an ex gratia payment to compensate for the drop in
occupancy. That decision was not one conferred upon them under any jurisdiction,
authority or power. The Agreement did not provide for the circumstances which had arisen.
The respondents had decided to hold the petitioners to the terms of the Agreement. That
was a unilateral decision. The fact that the respondents might have been acting under a
statutory power, if they had elected to make the payment, was insufficient to engage the
supervisory jurisdiction.
[13]
Had the petition been competent, it would have failed on its merits. The petitioners'
argument regarding legitimate expectation fell to be rejected. The email of 9 February 2022
could not have led the petitioners to conclude that the large scale investigation was to be left
out of account when the decision was made. The email did not state or imply that the large
scale investigation would be ignored, or that the decision would be taken only on the basis
of the vouching and information being sought by the email. The investigation had given
rise to the moratorium, which had caused the petitioners' financial difficulties. It was the
7
trigger for the occupancy rate claim. It would have been an obvious background fact on
which the claim was founded.
[14]
The petitioners' arguments in relation to procedural unfairness did not go beyond
legitimate expectation. There was no procedural unfairness generated by the email. It did
not mislead or misdirect the petitioners. The petitioners had known that the investigation
and moratorium had led to the reduction in payments and that they would require to
persuade the respondents that an additional payment, going beyond their contractual
entitlement, was appropriate.
[15]
It was for the petitioners to demonstrate that the decision was irrational. There was
no attempt to challenge the respondents' underlying reasoning. The petitioners had sought
a commission and diligence to recover any documentation which disclosed the reasoning
behind the letter, but this had been refused as coming too late. There was no prima facie
inference of irrationality to be drawn by the different treatment of the overnight staffing
claim and the occupancy rate claim. It was understandable that the respondents would
consider it appropriate to pay for the additional overnight service, even though it was not
covered by the terms of the Framework Agreement. The occupancy rate claim was different.
It was not the investigation which had resulted in the reduced levels of payment; it was the
fact that service users had left or died and were not replaced. The petitioners were only
contractually entitled to payment for that number of users.
Submissions
Petitioners
[16]
The petitioners sought: recall of the Lord Ordinary's interlocutors of 14 June 2023
(recovery of documents) and 21 December 2023 (competency); the grant of a commission
8
and diligence; and a remit to the Lord Ordinary to proceed as accords. The Lord Ordinary
erred in refusing the petitioners' motion for a commission and diligence.
He failed to have
regard to the duty of candour incumbent upon a public body (R (Police Superintendents'
for a petitioner to ask for the relevant documents. The need to seek production of the
documents should be the exception, not the rule (Somerville v Scottish Ministers 2008 SC
(HL) 45 at para [150], see The Scottish Government: Right First Time (3rd ed) question 23).
Where a motion came late, that was because of a respondent's failure and not a petitioner's
delay. The lack of relevant documentation had put both the petitioners and the court at a
disadvantage.
[17]
The Lord Ordinary's finding, that the respondents' decision of 6 May 2022 was not
subject to the court's supervisory jurisdiction, was unsustainable. The respondents had a
power to make payments for residential care to, or in respect of, a relevant person (1968 Act,
s 12(1)). Although in their written Note of Argument, the petitioners had maintained that
they were a relevant person; this was departed from in oral submissions. The fact that a
public body entered into a contract was not sufficient to exclude judicial review (Malloch v
Aberdeen Corporation 1971 SC (HL) 85). The respondents were exercising their statutory
discretion when deciding whether or not to make a payment (see R (Care North East
existence of that discretion meant that the respondents were not free to make unilateral
decisions as they thought fit. Public bodies required to point to statutory powers which
enabled them to do that which they sought to do, or refrain from doing. Alternatively, the
decision cut across the respondents' statutory powers. That sufficed to bring the decision
within the supervisory jurisdiction (cf Watt v Strathclyde Regional Council 1992 SLT 324).
9
[18]
The Lord Ordinary erred by conflating the petitioners' arguments on procedural
fairness and that concerning legitimate expectation. The petitioners' legitimate expectation
was not that payment in respect of the claim would be made. It concerned the information
and basis on which the decision would be made. The respondents had focussed on quantum
and sought vouching for the payment. The petitioners had been led to believe that the
decision would be made by reference to the financial information. The Lord Ordinary had
wrongly focussed upon statements made by the respondents. It had been those statements
together with the respondents' conduct in meetings which had given rise to the expectation.
[19]
The Lord Ordinary's view, that the petitioners had known about the investigation,
had missed the point about the right to a fair trial. The petitioners did not know that the
investigation would be decisive. The respondents had a duty of disclosure (Anduff Holdings
v Secretary of State for Scotland 1992 SLT 696). The right to a fair hearing was effective only if
the affected person was informed of the matters upon which the decision would be made
and was given an opportunity to make representations (R (Shoesmith) v Ofsted
[2011] EWCA Civ 642, at para [66]). Here, there was a denial of an opportunity to contradict (Kanda v
Malaya [1962] AC 322; Hadmor Productions v Hamilton [1983] 1 AC 191 at 233).
[20]
The Lord Ordinary failed to address the irrationality of the investigation being
determinative in relation to the occupancy rate claim, but of no relevance to the overnight
staffing claim. The investigation had been relied upon to refuse the occupancy rate claim,
even insofar as it related to periods after the investigation had concluded. It was accepted
that the moratorium had been rational on health and safety grounds.
Respondents
[21]
The respondents accepted that they had a duty of candour, but they had produced
10
everything that they possessed. RCS 58.3(4)(b) required a petitioner to list any documents
upon which he wished to found, but which were not in his possession. The petitioners had
not done that. The petitioners had had ample time in which to recover any relevant
documents. The Lord Ordinary had been entitled to refuse the motion to approve what was
a vague specification because it came too late. The petitioners' arguments on duty of
candour were misconceived. The duty applied in proceedings properly raised by judicial
review (R v Lancashire County Council ex parte Huddleston [1986] 2 All ER 941, at 945 - 946).
The respondents had complied with the duty, which was to assist the court with full and
accurate explanations of all the relevant facts, including disclosure of materials which were
reasonably required for the court to arrive at an accurate decision (R (Bancoult) v Foreign
Secretary (No 4) [2017] AC 300 at paras [183] - [184]). The respondents had complied by way
of: (a) producing the decision letter; (b) lodging answers to the petition; (c) lodging affidavits
in support of the averments in answer; and (d) presenting oral submissions at the
substantive hearing. The petitioners did not explain how the provision of any material may
have led to a different outcome.
[22]
The Lord Ordinary was correct that the decision under challenge was not one which
was amenable to judicial review. The petitioners' requests for additional funding were
made in the context of a contractual relationship. The respondents' statutory obligation to
provide services was discharged by contracting with the petitioners for that provision at
Redcroft. The beneficiaries of the duty were the service users; not the petitioners.
Contractual rights and obligations were not amenable to judicial review (West v Secretary of
State for Scotland 1992 SC 385, at 413) nor were operational decisions (C v Advocate General
2012 SLT 103, at para [26]). Malloch v Aberdeen Corporation had concerned the application of
section 85 of the Education (Scotland) Act 1962 and whether a right to a hearing was
11
implied. R (Care North East Northumberland) v Northumberland County Council was about a
duty to provide a care home market. Neither case assisted.
[23]
The Lord Ordinary correctly determined that the petition, if competent, would have
failed on its merits. For requirements of procedural fairness to arise, some procedure must
have been taking place. The parties were engaged in contractual discussions. Such
discussions did not constitute a procedure. The matter was in substance a commercial one.
No tribunal or hearing was involved. The respondents' decision making procedure was
internal. The petitioners had no right to participate in it. The requirements for procedural
fairness did not arise.
[24]
A legitimate expectation arose on a promise made by a public authority that a certain
procedure would be followed (Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629
at 638). The petition failed to specify how any such promise arose, or what it was. The Lord
Ordinary correctly determined that the correspondence, upon which the petitioners
founded, contained no promise. No legitimate expectation arose. If the respondents had
made a promise that, upon the provision of certain information, a payment would be
authorised, judicial review proceedings would have been unnecessary. The petitioners
could simply have sued for the authorised sum.
[25]
There was a rational distinction between the two sums sought by the petitioners.
The payment which the respondents had agreed to make was for the provision of an
enhanced service. The payment which they had declined to make was for a service which
they were not using. This was inherently rational. There was a connection between the
moratorium, the reduced occupancy of the facility and the request for additional funding.
Where relevant considerations were not specified by statute, a decision maker's view of
what a relevant consideration might be could only be subject to review on the ground of
12
unreasonableness in the sense of perversity (R v Secretary of State for Transport ex parte
Richmond LBC (No. 1) [1994] 1 WLR 74, Laws J at 95).
Decision
Remit and Commission and Diligence
[26]
The procedural rules in relation to the recovery of documents in a judicial review
process are easy to follow. First, the petitioners should have listed any documents upon
which they wished to found, but did not possess, in a schedule to the petition
(RCS 58.3(4)(b)). That was not done. In a letter dated 26 July 2022, the petitioners did ask
for copies of the minutes of an undated meeting which led to the letter of 6 May 2022. That
is when the decision to reject the occupancy rate claim was intimated. The petitioners also
asked for "any prior correspondence"; presumably between the petitioners and the
respondents. This was a very wide call. It was repeated as a narrative in the petition
(STAT 5). The respondents say that they have provided the petitioners with everything that
they have. This included heavily redacted minutes of an Executive Team Meeting on
24 March 2022. These do not record, at least expressly, a decision to refuse the occupancy
rate claim. It might be thought that another minute, which does so at or about the time of
the 6 May letter, must exist, but it has not been produced.
[27]
It is not disputed that the respondents are expected to produce the documents which
relate to the decision under review (Somerville v Scottish Ministers 2008 SC (HL) 45, Lord
Rodger at para [150]). If a petitioner does not consider that this has been done, he should
follow the normal procedure available for the recovery of documents in civil proceedings; ie
an order for production of an identified document or a commission and diligence to recover
a range of documents. The parties had been asked to mark up the documents upon which
13
they intended to rely in advance of the Procedural Hearing (initially 8 November 2022) and
then by 28 June 2023. The substantive hearing was looming by then. When the petitioners'
motion for a commission and diligence was heard on 7 July, it was only seven days away.
Had that motion been granted, the substantive hearing would have had to have been
discharged. It is not surprising that the Lord Ordinary refused it. He cannot be faulted for
so doing.
[28]
The petitioners did not seek to reclaim the interlocutor which refused to approve a
specification of documents (ie a commission and diligence). Although RCS 38.6(1) provides
that a reclaiming motion, for example against a final interlocutor, subjects all previous
interlocutors to review, that will not occur in a situation in which an earlier procedural
interlocutor has not been challenged and thus the parties are taken to have acquiesced in its
terms (Clark v Greater Glasgow Health Board 2017 SC 297, LP (Carloway), delivering the
opinion of the court, at para [40]). That is the position here. If the petitioners had wished to
take issue with the prior interlocutor, they should have sought leave to reclaim against it.
Even if, as would have been likely, that motion would have been refused, it would have
triggered a requirement for the Lord Ordinary to provide written reasons for the refusal. As
matters stand, the court has only the briefest of explanations in the Lord Ordinary's
substantive opinion on the competency and merits of the petition, viz. that the motion for a
commission was refused because "primarily ... it came too late".
[29]
Judicial Review is intended to be a "speedy and cheap" procedure (Brown v Hamilton
DC 1983 SC (HL) 1, Lord Fraser at 49). It is not normal for the court, in a reclaiming motion,
to remit a petition to the Lord Ordinary for reconsideration. If the petitioners reached the
view (as they seemed to be saying on occasion in oral submission) that further documents
were needed before the court could assess the legality of the decision, they could, and
14
should, have asked this court in the reclaiming process for an order for the recovery of a
document, or a commission and diligence to recover a range of documents, well in advance
of the final Summar Roll hearing. That would have enabled this court to assess the merits
for itself, having considered any recovered material. This was not done. For these various
reasons, the court will decline to grant a commission and diligence or remit the petition to
the Lord Ordinary. The effect of that, on its own, is that the reclaiming motion must be
refused.
Supervisory Jurisdiction
[30]
In Abundance Investment v Scottish Ministers 2020 SLT 163, Lord Clark carried out an
extensive review of the authorities on the scope of judicial review. Under reference to dicta
in West v Secretary of State for Scotland 1992 SC 385, Crocket v Tantallon Golf Club 2005 SLT 663
and Wightman v Secretary of State for Exiting the EU 2019 SC 111, Lord Clark said (at para [42])
that:
"... it is clear that the tripartite relationship test [in West] cannot stand in the way of
the proper enforcement of the rule of law. In judging whether or not the supervisory
jurisdiction is competently invoked, it is necessary to examine the act or decision
under challenge and the basis of that act or decision ...".
The court agrees with that analysis.
[31]
Specifically in relation to the situation in which a decision is made in the context of a
contractual relationship, Lord Clark explored the authorities (West, Watt v Strathclyde
Regional Council 1992 SLT 324; Blair v Lochaber District Council 1995 SLT 407; and Dryburgh v
NHS Fife [2016] CSOH 116) and determined (at para [46]) that:
"There are therefore several judgments, including from the Inner House, which
support the proposition that decisions made by a contracting party in relation to
rights and obligations under the contract are not, as such, amenable to judicial
review by the other contracting party. If the decision could also be characterised as
one taken in the exercise of a statutory power or in the implement of a statutory
15
duty, which, by its nature, was bound to affect all of those in respect of whom the
jurisdiction conferred by the statute was to be exercised, then (as observed in West)
that is a different matter. Similarly (as also observed in West) if the party whose
decision is challenged was, in making the decision, performing any function
independent of its position as the other contracting party, that is again a different
matter. Thus, decisions made by the other contracting party on these wider grounds
can be amenable to judicial review."
The court agrees with that statement. The question is how it applies in this case.
[32]
Although it does not feature in the petition (cf ANS 8 ix), section 12 of the Social
Work (Scotland) Act 1968 imposes a duty upon local authorities to promote social welfare,
including the arranging for the provision of residential establishments. That assistance may
be given in kind or cash to, or in respect of, "any relevant person". Standing the definition
of "relevant person" in section 12(2), the petitioners cannot be classified as such. The duty,
and relative power (see Local Government (Scotland) Act 1973, s 69(1)), is in respect of
natural persons in need of such provision; not the owners or operators of care
establishments. The duty was owed to the residents of Redcroft. After the moratorium,
Redcroft continued to operate and to provide care to its residents. Payments were made to
the petitioners in respect of each remaining resident's care. The payments reduced in line
with the reduction in the number of residents. This was entirely consistent with the
respondents' statutory duty. The respondents presumably continued to fund the care of the
two residents who had left Redcroft.
[33]
The only link between the petitioners and the respondents was that created by the
Framework Agreement; ie a contract. In taking a decision about the payment of money to
the petitioners, the respondents were not exercising a power relative to them which could be
susceptible to the supervisory jurisdiction of the court. This contrasts with R (Care North
was considering contractual rates in the context of a statutory duty in England and Wales to
16
promote an efficient market in the services, including the sustainability of those services
(Care Act 2014, s 5(1) and (2)(d)). It is also quite different from Malloch v Aberdeen
Corporation 1971 SC (HL) 85 in which the pursuer was able to rely on an implied right to a
hearing under the Education (Scotland) Act 1962 (s 85(1)).
[34]
The respondents were acting according to the rights created by the contract. Either
the petitioners had a remedy under the contract or none at all. There was no contractual
remedy. The petitioners do not aver that the respondents did not act in accordance with
contractual terms. The respondents were essentially being asked to make an ex gratia
payment to the petitioners. There was no statutory or contractual duty requiring them to
make such a payment. Refusing to do so was an intra vires act. On this basis the petition is,
for the reasons given by the Lord Ordinary, incompetent. The reclaiming motion also fails
on this ground.
Merits
[35]
There is nothing unreasonable about the respondents' decision not to meet the
occupancy rate claim. The financial arrangements made by the parties were contained in the
Framework Agreement. This required the respondents to pay a fixed rate for the residents
in Redcroft. The petitioners do not complain about the moratorium which was put in place
pending the large scale investigation. As matters transpired, the number of residents fell
because of the death of one resident and the departure of two others. In the absence of a
contractual provision, the respondents can hardly have been expected to pay for the care of
persons who were either dead or not otherwise being cared for by the petitioners but,
presumably, by someone else. The decision was whether to make an ex gratia payment in
circumstances which, according to the petitioners, Redcroft had become unprofitable.
17
Especially having decided to make a substantial payment in respect of the "waken" hours, it
is unremarkable that the respondents decided not to pay out on the occupancy rate claim in
addition. The two claims were different in nature and there was no irrationality in accepting
one and not the other.
[36]
The petitioners' contention in the pleadings, in so far as it is based upon the concept
of legitimate expectation, appeared to be that they had understood that the occupancy rate
claim would be met, subject to vouching. In oral submissions they appeared to be
complaining not that the claim would not be met but that they did not expect the
investigation to have formed part, at least, of the reasoning behind refusal. Legitimate
expectation in the procedural context is related to fairness. It will arise when the relevant
authority has promised or undertaken to behave in a particular manner but then departs
from that and acts in a different way without affording the individual an opportunity to
make representations. For the expectation to arise, what was promised or undertaken must
be "clear, unambiguous, and unqualified" (Re Finucane's Application for Judicial Review
[2019] HRLR 7, Lord Kerr at paras 64-69). There is nothing of this nature averred.
[37]
The petitioners' understanding that an agreement that payment would be made on
the production of vouching is not sufficient in the absence of averments demonstrating how
that understanding arose. The only specific basis which is pled is the reference to the email
of 9 February 2022. This certainly sought vouching but that seems to have been in the
context of "costs" and the need to refurbish, although it does mention "backpayment".
Whatever it might have been referring to, it is not a clear, unambiguous and unqualified
statement either that the claim would be met or that the investigation and moratorium
would not form part of the respondents' reasons for refusing the claim. The reality is that
the petitioners were afforded ample opportunity to make their claim. It was refused and a
18
sound reason was given for that refusal. That reason was not that an investigation had
taken place but that, as a consequence to the investigation, there had been a moratorium
(which is not challenged) and a resultant drop in the number of residents because one died
and two left. No procedural unfairness is apparent. Even if it did, the petitioners are unable
to point to any circumstance which, had the respondents been made aware of it, might have
altered the decision. In short, the court agrees with the Lord Ordinary that, had the petition
been competent, it would have been refused on its merits.
[38]
The petition being incompetent, the interlocutor of 21 December 2023 ought to have
been confined to that issue (ie sustaining the respondents' first plea-in-law). The
interlocutor will be corrected accordingly.
