McDONALD v Secretary of State for SCOTLAND

JurisdictionScotland
CourtCourt of Session (Inner House - Second Division)
Judgment Date17 December 1993
Date17 December 1993
Docket NumberNo 26

SECOND DIVISION

No 26
McDONALD
and
SECRETARY OF STATE FOR SCOTLAND

InterdictCrownCrown immunityCompetencyWhether competent to interdict CrownWhether "civil proceedings"Crown Proceedings Act 1947 (10 & 11 Geo. VI, cap. 44), sec. 211

Words and phrasesStatutory interpretation"Civil proceedings"Crown Proceedings Act 1947 (10 & 11 Geo. VI, cap. 44), sec. 21

Section 21 of the Crown Proceedings Act 1947 enacts that in civil proceedings against the Crown the court shall not grant an injunction. Section 43 enacts that in the application of the Act to Scotland "injunction" means "interdict".

A serving prisoner brought an action of reparation for damages against the Secretary of State for Scotland in the sheriff court, averring that he had been subjected to over 3,000 illegal searches. He also sought interdict and interdict ad interim against the Secretary of State, or anyone on his behalf, from searching him without lawful authority, warrant or justifiable cause. The sheriff refused the interim motion on the basis that sec. 21 of the 1947 Act made it incompetent. On appeal, the sheriff principal adhered to that view. The appellant then appealed to the Court of Session.

Held (1) that the respondent was being sued in a representative capacity and not as an individual, so that the action was one against the Crown, and as the pursuer had chosen to bring an ordinary action in the sheriff court for interdict and damages that was clearly a civil proceeding which was covered by sec. 21 of the 1947 Act; and accordingly, (2) that the interdict sought was incompetent; and appealrefused.

Re M. [1993] 3 W.L.R. 433 distinguished.

Opinion that there would be difficulties in arguing that an application under the judicial review procedure of the Court of Session did not constitute civil proceedings.

Observed that one effect of the 1947 Act was to deprive litigants in Scotland of the right which they had at common law to obtain interdict and interim interdict against the Crown.

Observations on the differences in English and Scots law relative to proceedings against the Crown.

James McFarlane McDonald, prisoner in H.M. Prison, Glenochil, brought an action of reparation for damages in the sheriffdom of Tayside, Central and Fife at Stirling against the Rt. Hon. Ian Lang, the Secretary of State for Scotland. He also craved interdict and interdictad interim against the defender from searching the pursuer without lawful authority, warrant or justifiable cause.

The motion for interim interdict called before the sheriff who refused it on the basis that it was incompetent in light of the provisions of sec. 21 of the Crown Proceedings Act 1947.

The pursuer appealed to the sheriff principal, who adhered to the interlocutor of the sheriff and opined that, in any event, he would not have been disposed to grant the interim motion as the balance of convenience fell in favour of the defender.

The pursuer then appealed to the Inner House of the Court of Session.

The cause called before the Second Division, comprising the Lord Justice-Clerk (Ross), Lord Morison and Lord Sutherland, for a hearing.

At advising, on 17th December 1993

LORD JUSTICE-CLERK (Ross)In this action which was raised in Stirling Sheriff Court, the pursuer is seeking interdict against the defender, who is the Secretary of State for Scotland, or anyone on his behalf from searching the pursuer without lawful authority, warrant or justifiable cause. The pursuer is presently serving a sentence of imprisonment in H.M. Prison, Glenochil, and he avers that the defender is responsible for the general superintendence of prisons including Glenochil. The pursuer claims to have been subjected to illegal searches on at least 3,000 occasions, and he also craves reparation from the defender in respect of each allegedly unlawful search.

In Stirling Sheriff Court the pursuer sought interim interdict against the defender, and the sheriff, after hearing parties, refused the crave for interim interdict in hoc statu. The sheriff expressed the opinion that the crave for interim interdict was incompetent by virtue of sec. 21 of the Crown Proceedings Act 1947. The sheriff also expressed the view that the sheriff court did not have jurisdiction in the circumstances of this case since it appeared to him that the pursuer was challenging standing orders, and that that was a matter which would require to be made the subject of judicial review. The sheriff also stated that if he had required to consider the balance of convenience, he would have sided with the defender.

The pursuer then appealed to the sheriff principal and, on 31st August 1993, the sheriff principal, having heard the pursuer personally and counsel for the defender, refused the appeal and adhered to the sheriff's interlocutor of

19th August 1993. In the note annexed to his interlocutor the sheriff principal expressed the view that it was not appropriate at this stage to consider the matter of jurisdiction. So far as competency is concerned the sheriff principal stated that at first blush sec. 21 of the Crown Proceedings Act 1947 made it clear that interdict was not available against the Crown in Scotland. He referred to Re M.[1994] 1 A.C. 377 to which the sheriff had also been referred. He concluded that Re M. did not alter the situation in Scotland, and that it was not competent in these proceedings to attempt to interdict the Crown. Against that interlocutor of the sheriff principal the pursuer has now appealed, with leave of the sheriff principal, to this court.

As it was known that the pursuer was appearing for himself, and since the issues raised in the appeal appeared to be important, the court decided to appoint counsel to act as amicus curiae to assist the court at the hearing of this appeal. No objection to this course was taken by the pursuer. Accordingly, at the hearing the court heard submissions by the pursuer and a response on behalf of the defender; thereafter they heard further submissions from the amicus curiae.

In opening the appeal, the pursuer maintained that several issues of considerable importance were raised in the appeal. There was a question of the competency of seeking interdict against the Crown, and there was also an issue raised as to whether the sheriff could adjudicate upon the matter raised in the action. Having regard to the fact that what the sheriff had done was to refuse to grant interim interdict, the pursuer appreciated that the real issue raised in this appeal was one as to the competency of seeking interdict against the Secretary of State for Scotland. Under reference to sec. 6(e) of the Sheriff Courts (Scotland) Act 1907, he submitted that it was plain that an action for interdict against an alleged wrong being committed within the jurisdiction of the sheriff could competently be raised in the sheriff court. The pursuer, however, appreciated that regard had also to be had to the provisions of the Crown Proceedings Act 1947. Under reference to sec. 44 of the Crown Proceedings Act 1947 the pursuer submitted that civil proceedings against the Crown could be instituted in the sheriff court. He emphasised that no certificate by the Lord Advocate had been produced in terms of the proviso to sec. 44, and he accordingly submitted that the sheriff court had jurisdiction to entertain the present action.

The pursuer recognised that sec. 21 of the Crown Proceedings Act 1947 limited the power of a court to grant interdict against the Crown, but he contended that Re M. showed that it was competent in England to grant an injunction against the Crown, and he maintained that Scotland was in precisely the same position. The pursuer emphasised that one difference between the law of England and the law of Scotland was that the rules relating to judicial review were not the same (West v. Secretary of State for ScotlandSC 1992 S.C. 385), but, on the issue of the competency of pronouncing an interdict or injunction against the Crown, he submitted that there was no difference between the two jurisdictions. He referred to Barnes, The Crown Proceedings Act 1947 (1948) 26 Can. Bar Rev. 387 at p. 397 where the author states: "As it was thus unnecessary to apply the Act in all its aspects to Scotland, Part V applies only those provisions which having regard to the existing state of the law in Scotland, are necessary to bring the position of the Crown as litigant in Scotland into line with the position of the Crown as litigant under the Act in England."

The pursuer also founded on Bell v. Secretary of State for ScotlandUNK 1933 S.L.T. 519 as authority for the proposition that interim interdict could be pronounced against the Secretary of State. He described the present case as "on all fours withBell". I shall refer to Bellagain presently, but meantime would merely observe that it was decided before the enactment of the Crown Proceedings Act 1947.

The pursuer also addressed submissions to the court relating to the power of the Secretary of State to make prison rules but as that issue does not really arise at this stage, it is unnecessary to record the submissions which the pursuer attempted to make in this regard. Under reference to Henderson v. Chief Constable, Fife PoliceUNK1988 S.L.T. 361 he did submit that action in the nature of an illegal search could be made the subject of an ordinary action, and that it was not necessary to challenge such proceedings by means of judicial review. At the end of the day, however, his submission was that the decision inRe M. was a decision of the House of Lords on sec. 21 of the Crown Proceedings Act 1947, and that that decision was binding on this court. He contended that before the sheriff, counsel for the defender had misinterpreted Re M., and that likewise the sheriff and the sheriff principal had been in error in this regard. The pursuer founded particularly upon the speech of Lord Templeman. In that speech Lord Templeman said (at p. 395): "The judges cannot enforce the...

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