Ayr Town Council v Secretary of State for Scotland
| Jurisdiction | Scotland |
| Judgment Date | 12 June 1965 |
| Docket Number | No. 39. |
| Date | 12 June 1965 |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Fraser.
CrownJurisdiction over CrownDeclarator of rights of parties in lieu of interdictProposed Order by Secretary of StateDeclarator sought that Secretary of State under duty to refrain from holding inquiry in connection with OrderWhether court empowered to pronounce declarator ad interim before facts establishedInterdictInterim interdict against reporter from holding inquiryCrown Proceedings Act, 1947 (10 and 11 Geo. VI, cap. 44), sec. 21 (1) (a).
The Crown Proceedings Act, 1947, by sec. 21 (1) (a), as applied to Scotland by sec. 43 (a), provides, inter alia, that where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of interdict, the court shall not grant an interdict, but may in lieu thereof make an order declaratory of the rights of the parties.
In an action brought by a local authority against the Secretary of State for Scotland and a reporter appointed by him to hold a local inquiry the pursuers concluded (1) for declarator that an Order which the Secretary of State proposed to make under the Water (Scotland) Act, 1946, wasultra vires; (2) for declarator that it was the duty of the Secretary of State to refrain from causing a local inquiry to be held into the Order; and for declarator ad interim; and (3) for interdict against the reporter from holding the inquiry; and for interim interdict. The pursuers averred that there was no evidence before the Secretary of State entitling him to conclude that the conditions in which such an Order could be made, as specified in the 1946 Act, had been satisfied, and two days after the summons was signeted they moved for declarator ad interim and interim interdict in terms of their second and third conclusions.
The Lord Ordinary (Fraser) (1) refused the motion for declarator ad interim, holding that the pursuers were in effect asking the court to accept their averments relating to the first conclusion pro veritate and on that assumption to make an order declaratory of their rights in relation to the second and third conclusions; that such an order would in the circumstances be hypothetical; and that the Crown Proceedings Act, 1947, did not entitle the court to make such a hypothetical declaratory order; and (2)refused the motion for interim interdict, in respect that it was subsidiary to and consequential upon the declarator sought against the Secretary of State, and in any event would not necessarily achieve the real purpose of the pursuers' application.
Robertson v. Lord Advocate, 25th March 1950, reportedinfra, p. 400, followed.
The Provost, Magistrates and Councillors of the Royal Burgh of Ayr...
To continue reading
Request your trial
-
Reclaiming Motion In Petition Of Scott Davidson For Judicial Review Of A Decision To Continue To Detain The Prisoner In Inhuman And Degrading Prison C V.
...declarator. Reference was made to Provost, Magistrates and Councillors of the Royal Burgh of Ayr v. Secretary of State for Scotland 1965 S.C. 394. In that case Lord Fraser refused an interim declarator because such an order would be hypothetical and the 1947 Act did not, in his opinion, ent......
-
William Frederick Ian Beggs For Judicial Review Of A Decision To Transfer The Petitioner From Hm Prison Edinburgh To Peterhead
...be, determined by the Court. This is illustrated by the decision of Lord Fraser in Ayr Town Council v Secretary of State for Scotland, 1965 SC 394, and also by the earlier decision of Lord Strachan in Robertson v Lord Advocate, reported as an appendix to Lord Fraser's decision at 1965 SC 40......
-
Scott and Davidson v Scottish Ministers (No 1)
...declarator. Reference was made to Provost, Magistrates and Councillors of the Royal Burgh of Ayr v Secretary of State for Scotland 1965 SC 394. In that case Lord Fraser refused aninterim declarator because such an order would be hypothetical and the 1947 Act did not, in his opinion, entitle......
-
Nigel Mckenzie (ap) And Others V. The Scottish Ministers
...on the public administration, or forecloses significant budgetary decisions..." First, following Ayr Town Council v Secretary of State 1965 SC 394 and its appended Robertson v Lord Advocate 1965 SC 400 the Lord Ordinary did not consider it appropriate to pronounce an interim declarator in t......