Ayr Town Council v Secretary of State for Scotland

JurisdictionScotland
CourtCourt of Session (Outer House)
Judgment Date12 June 1965
Date12 June 1965
Docket NumberNo. 39.

OUTER HOUSE.

Lord Fraser.

No. 39.
Ayr Town Council
and
Secretary of State for Scotland

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...

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2 cases
  • Scott and Davidson v Scottish Ministers (No 1)
    • United Kingdom
    • Court of Session (Inner House - Extra Division)
    • 18 December 2001
    ...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......
  • McDONALD v Secretary of State for SCOTLAND
    • United Kingdom
    • Court of Session (Inner House - Second Division)
    • 17 December 1993
    ...that he could not make such an order without prejudging the merits of the case. In Ayr Town Council v. Secretary of State for ScotlandSC 1965 S.C. 394 Lord Fraser followed Lord Strachan inRobertson v. Lord Advocate. He opined that what he was being invited to do was to make a hypothetical d......

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