Clancy v Caird

CourtCourt of Session (Inner House - Extra Division)
Judgment Date04 April 2000
Docket NumberNo 47
Date04 April 2000


Temporary Judge T G Coutts, QC

No 47

Administration of justice—Temporary judges—Devolution issue—Declinature of jurisdiction—Pursuer objecting to proof being heard by temporary judge while case at avizandum on the evidence—Case put out by order to hear any objection to temporary judge's proceeding to determine case—Temporary judges appointed for fixed term to hear restricted types of cases—Temporary judges allocated to cases by Lord President—Whether temporary judges “independent and impartial tribunal”—Whether use of temporary judges contrary to parties' common law rights—Whether pursuer had waived right to object to temporary judge—Whether devolution issue—Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (cap 40), sec 35(3) and sched 4—Scotland Act 1998 (cap 46), sec 57(2)—European Convention on Human Rights, art 6(1)1

Section 35(3) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 enacts that notwithstanding any provision in any enactment, if it appears expedient to the Secretary of State he may, in accordance with paras 5–11 of sched 4 and after consulting the Lord President, appoint persons to act as temporary judges of the Court of Session. The Secretary of State's functions were transferred to the Scottish Ministers on the coming into force of the Scotland Act 1998. Paragraph 5 of sched 4 provides that the temporary judges are to be appointed for such period as the Scottish Ministers may determine but no such appointment shall extend beyond the appointee's 70th birthday. Paragraph 7 disapplies all statutory and common law rules relating to tenure of office, retirement, removal and disqualification and the remuneration, allowances and pensions of Court of Session judges so far as temporary judges are concerned. Paragraph 11 provides that appointment as a temporary judge is without prejudice to his continuing with any business or professional occupation not inconsistent with his acting as a judge.

The pursuer brought an action in the Court of Session for payment by the defender of damages for fraudulent misrepresentation and breach of contract in respect of the purchase by the pursuer from the defender of a residential home. The proof was led and concluded before the Temporary Judge (T G Coutts, QC) during six days in late September 1999 without any objection being taken to the proof proceeding before a temporary judge. While the case was at avizandum, in light of the decision of the High Court of Justiciary in Starrs v Ruxton;Ruxton v StarrsSC2000 JC 208 which was advised on 11 November 1999, the case was put out by order so that, if so advised, an informed consent, if that were necessary to the case being concluded by the temporary judge, could be noted. The pursuer stated that a devolution issue was to be taken on the ground that temporary judges did not constitute an independent and impartial tribunal. The Temporary Judge had first been appointed for a period of three years and had subsequently been re-appointed. His current appointment subsisted until 4 April 2000. The case was reported to the Inner House before whom it was also contended that the hearing before the Temporary Judge was contrary to the pursuer's common law rights.

Held (1) that in continuing to provide the services of temporary judges the Scottish Executive had “acted” in terms of sec 57(2) of the Scotland Act 1998 and accordingly the pursuer's challenge to the proceedings raised a devolution

issue (pp 444C–D, 457C, 475A); (2) that the common law principle of tenure ad vitam aut culpam could be innovated on by Parliament in the case of officers other than the permanent salaried judiciary without jeopardising the character of the office as “judicial” (pp 448B–C, 483F–G); (3) that an appointment under the 1990 Act, for a term of three years, carried security of tenure within that period, a factor which was significant in relation to the appearance of independence and impartiality (pp 448C–D, 457I–458A, 463E, 471H, 487E–G); (4) that temporary judges constituted an independent and impartial tribunal within the meaning of art 6(1) of the European Convention on Human Rights and their employment in the Court of Session as part of the normal judicial structure, subject to appeal on points of fact and law, and to the common law rules on declinature of jurisdiction, when taken with their judicial oath, was adequately guaranteed against any reasonable perception of lack of independence or impartiality (pp 451D, 452G, 463I–464A, 469H, 496E); and (5) that, in any event, the pursuer had waived his right to challenge the Temporary Judge's hearing his case when he failed to object, at the latest, at the start of the proof (pp 453G, 471F–G, 471H, 496F); and cause remittedto Temporary Judge to advise his decision.

Starrs v Ruxton; Ruxton v StarrsSC2000 JC 208distinguished.

Paul Clancy brought an action in the Court of Session against Robin Dempsey Caird for damages for fraudulent misrepresentation and breach of contract. After sundry procedure a proof before answer was allowed on 25 September 1998. In due course the proof was heard and concluded before Temporary Judge T G Coutts, QC in late September 1999 when his Lordship made avizandum.

While the cause was at avizandum, the case called before the Temporary Judge on the by order roll so that any objection which the parties might have to the case being concluded by the Temporary Judge might be noted.

At advising, on 10th December 1999, the Temporary Judge reported the cause to the Inner House in terms of r 34.1 of the Rules of the Court of Session 1994.

Cases referred to:

Advocate (HM) v RobbSC 2000 JC 127

Barrs v British Wool Marketing BoardSC 1957 SC 72

Belilos v SwitzerlandHRC Series A No 132 (1988); 10 EHRR 466

Bryan v United Kingdom Series A No 335–A (1995); 21 EHRR 342

Bulut v Austria Reports of Judgments and Decisions 1996–II, p 347

Cameron v King (1902) 10 SLT 429

Campbell and Fell v United KingdomHRC Series A No 80 (1984); 7 EHRR 165

Çiraklar v Turkey (28 October 1998) Reports of Judgments and Decisions 1998–VII

Crociani v Italy (1980) 59 DR 147

Debled v Belgium Series A No 292–B (1994); 19 EHRR 506

De Cubber v BelgiumHRC Series A No 86 (1984); 7 EHRR 236

Delcourt v BelgiumHRC Series A No 11 (1970); 1 EHRR 355

Deweer v BelgiumHRC Series A No 35 (1980); 2 EHRR 439

Dupius v Belgium Application No 1277/87 (1998) 57 DR 196

Eccles, McPhillips and McShane v Ireland Application No 12839/87 (1988) 59 DR 212

Engel v The NetherlandsHRC Series A No 22 (1976); 1 EHRR 647

Findlay v United Kingdom (1997); 24 EHRR 221

Håkansson and Sturesson v SwedenHRC Series A No 171 (1990); 13 EHRR 1

Harvey v DyceUNK (1876) 4 R 265

Hauschildt v DenmarkHRC Series A No 154 (1989); 12 EHRR 266

Hoekstra v HM Advocate (No 2)SC 2000 JC 391

Johnston v IrelandHRC Series A No 112 (1986); 9 EHRR 203

Langborger v SwedenHRC Series A No 155 (1989); 12 EHRR 416

Le Compte, Van Leuven and De Meyere v BelgiumHRC Series A No 43 (1981); 4 EHRR 1

Locabail (UK) Ltd v Bayfield Properties LtdUNK [2000] 1 All ER 65

Mackay and Esslemont v Lord AdvocateSC 1937 SC 860

McCreadie v ThomsonENR 1907 SC 1176

McGonnell v United Kingdom Application No 28488/95 (20 October 1998) (Commission), unreported; (8 February 2000) (Court) [2000] TLR 119

Marckx v BelgiumHRC Series A No 31 (1979); 2 EHRR 330

Mulvenna v The AdmiraltyENR 1926 SC 842

Niederhost-Huber v Switzerland Reports of Judgments and Decisions 1997 No 29

Oberschlick v AustriaHRC Series A No 204 (1991); 19 EHRR 389

Ommanney v SmithUNK (1851) 13 D 678

Piersack v BelgiumHRC Series A No 53 (1982); 5 EHRR 169

Plahte v Norwegian State (19 December 1997), unreported

Pullar v United KingdomUNK 1996 SCCR 755

R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577

R v LippéUNK [1991] 2 SCR 114

Rees v CraneELR [1994] 2 AC 173

Reference re: Territorial Court Act (NWT), s 6(2) (1997) 153 DLR (4th) 132

Ringeisen v Austria (No 1)HRC Series A No 13 (1971); 1 EHRR 455

Russell v DicksonSC 1997 SC 269

Sellar v Highland Railway CoENR 1918 SC 838; 1919 SC (HL) 19

Sramek v AustriaHRC Series A No 84 (1984); 7 EHRR 351

Starrs v Ruxton; Ruxton v StarrsSC2000 JC 208

Stieringer v Germany Application No 28899/95 (25 November 1996)

Sutter v Switzerland Application No 8209/78

Thorgeirson v IcelandHRC Series A No 239 (1992); 14 EHRR 843

Valente v The Queen (1985) 24 DLR (4th) 161

Wilson v Minister for Aboriginal and Torres Strait Islander AffairsUNK (1996) 70 ALJR 743

X v Austria 1960 YB III, 288

Young, James and Webster v United KingdomHRC Series A No 44 (1981); 4 EHRR 38

Zand v Austria Application No 7360/76 (1978) 15 DR 70

Textbooks, etc referred to:

Black, R, “The Scottish Parliament and the Scottish Judiciary” 1998 SLT (News) 321

Bratza and Duffy, Practitioners' Handbook of EC Law, para 32.3.1

Erskine, Institute, I, 2, 32

Finnie, W, “Judicial Tenure and Judicial Pensions” 1993 SLT (News) 213

Gloag, Contract (2nd ed), p 158

The cause called before an Extra Division, comprising Lord Sutherland, Lord Coulsfield and Lord Penrose, for a hearing on the summar roll on 27 and 28 January, 10, 11, 24 and 25 February 2000.

At advising, on 4 April 2000—

LORD SUTHERLAND—[1] The pursuer seeks damages from the defender for an alleged breach of contract in respect of the sale of a nursing home by the defender to the pursuer. The action went to proof before T G Coutts, QC, sitting as a temporary judge, and after six days of proof was taken to avizandum. While at avizandum,the decision in the case of Starrs v Ruxton;Ruxton v Starrs was published and this case was put out by order, along with two other cases at avizandum, in order that parties might consider their position in the light of the decision in Starrs. In the other two cases the parties were content that Mr Coutts should issue his decision, but the pursuer in this case objected on the ground...

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2 books & journal articles
  • Human Rights and the Law of Leases
    • United Kingdom
    • Edinburgh Law Review Nbr. , May 2013
    • 1 May 2013
    ...of article 6 can be waived provided it is done so voluntarily and unequivocally.8181Hermi v Italy (2008) 46 EHRR 46; Clancy v Caird 2000 SC 441; Millar v Dickson 2000 SLT 988. Signature of a lease containing a warrant for execution of summary diligence would appear to meet the test. To be e......
  • Judging the Judges: the New Scheme of Judicial Conduct and Discipline in Scotland
    • United Kingdom
    • Edinburgh Law Review Nbr. , June 2009
    • 1 September 2009
    ...against any interference with the judge's function from any outside source and in particular from the Executive”.1212Clancy v Caird (No 2) 2000 SC 441 at The principle of judicial independence also limits the type of action that can be taken against a judge who has acted in a way that, alth......

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