JK v Argyl and Bute Council
| Jurisdiction | Scotland |
| Judgment Date | 29 April 2022 |
| Docket Number | No 20 |
| Court | Court of Session (Inner House) |
[2022] CSIH 23
Second Division
Sheriff Appeal Court
Process — Review — Appeal from sheriff court — Competency — Effect of transfer of appellate jurisdiction from sheriff principal to Sheriff Appeal Court on pre-existing statutory right of appeal — Whether applicant could seek permission direct from Court of Session or whether precluded by existence of pre-existing statutory right of appeal — Courts Reform (Scotland) Act 2014 (asp 18), secs 109, 113
Process — Review — Appeal from sheriff court — Test for determining permission to appeal from Sheriff Appeal Court to Court of Session — Whether applicant required to satisfy second appeals test — Adults with Incapacity (Scotland) Act 2000 (asp 4), sec 2(3)
Section 113 of the Courts Reform (Scotland) Act 2014 (asp 18) (‘the 2014 Act’) provides, “(1) An appeal may be taken to the Court of Session against a decision of the Sheriff Appeal Court constituting final judgment in civil proceedings, but only– (a) with the permission of the Sheriff Appeal Court, or (b) if that Court has refused permission, with the permission of the Court of Session.”
Section 2 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (‘the 2000 Act’) provides, “(3) Unless otherwise expressly provided for, any decision of the sheriff at first instance in any application to, or in any other proceedings before, him under this Act may be appealed to the sheriff principal, and the decision upon such appeal of the sheriff principal may be appealed, with the leave of the sheriff principal, to the Court of Session.”
Argyll and Bute Council brought a summary application in the sheriff court to appoint its chief social work officer as the applicant's welfare guardian for a period of three years, under sec 57(2) of the 2000 Act, due to concerns for the applicant's mental health. Following proof, the sheriff concluded that the applicant suffered from a serious delusional disorder which gave rise to concerns about her welfare and made a guardianship order for a period of one year. The applicant appealed to the Sheriff Appeal Court, which refused the appeal. The Sheriff Appeal Court further refused to grant permission to appeal to the Court of Session. The applicant sought permission to appeal direct from the Court of Session, under sec 113(1)(b) of the 2014 Act.
The applicant submitted that the Sheriff Appeal Court had erred in concluding that the question of permission fell to be determined under sec 2(3) of the 2000 Act and that sec 113 of the 2014 Act applied to the current proceedings. Section 113(4) did not apply as there was no other provision providing a right of appeal to the Court of Session.
The council submitted that any right of appeal to the Court of Session required permission to appeal from the Sheriff Appeal Court, as envisaged by sec 2(3) of the 2000 Act.
Held that the statutory route of appeal provided by sec 2(3) of the 2000 Act precluded an appeal under sec 113 of the 2014 Act and that there was accordingly no opportunity for an appellant to obtain permission direct from the Court of Session under sec 113(1)(b) (paras 10, 11); and application refused as incompetent.
Observed that: (1) the Sheriff Appeal Court had correctly identified that the test for permission to appeal to the Court of Session under sec 2(3) of the 2000 Act was the general test for leave to appeal, and not the second appeals test (para 12); and (2) Aberdeenshire Council v JM was not authority for the propositions advanced by the applicant, the question of permission to appeal having been granted by a single judge without being addressed on the competency of the application, and...
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