Paul Clancy V. Robin Dempsey Caird
| Jurisdiction | Scotland |
| Judge | Lord Sutherland,Lord Coulsfield,Lord Penrose |
| Date | 04 April 2000 |
| Docket Number | 0199/6 |
| Court | Court of Session |
| Published date | 01 November 2000 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| Lord Sutherland Lord Coulsfield Lord Penrose
| 0199/6/97 OPINION OF LORD SUTHERLAND in REPORT TO THE INNER HOUSE in the cause PAUL CLANCY Pursuer; against ROBIN DEMPSEY CAIRD Defender: _______ |
Act: Bovey, Q.C., Summers; Bennett & Robertson (Pursuer)
Alt: Stewart, Q.C., Davidson; Balfour & Manson (Defender)
The Lord Advocate, McCreadie; Lord Advocate
4 April 2000
[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, Q.C., 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 and Chalmers v. P.F. Linlithgow 2000 J.C. 208 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 that the hearing before a temporary judge was incompetent and was in breach of Article 6 of the European Convention of Human Rights. The case comes before this court on a report by the temporary judge who took the view that it was inappropriate for him to consider the issues raised.
[2]The matter was brought before this court as a devolution issue and the first question to be considered is whether, under the terms of the legislation, a devolution issue truly arises. A great deal of time was taken up in argument as to whether a failure to act in accordance with Convention rights by the Scottish Ministers fell within the provisions of the Scotland Act 1998, or whether it is only acts in breach of Convention rights which could be challenged as a devolution issue. What is abundantly clear is that when the Human Rights Act 1998 comes into force in its own right, instead of being applied by implication under section 129(2) of the Scotland Act, an act will be deemed to include a failure to act. Prima facie it would seem strange when importing provision of the Human Rights Act to exclude by a procedural device, not clearly spelled out, the effect of failing to act in accordance with Convention rights. Apart from anything else there are many situations which, on one view, could be categorised as an act but on another view could be categorised as a failure to act. It is the duty of the Scottish Ministers to provide the necessary judicial resources to enable Convention rights to be secured. As part of these judicial resources the executive continues to provide temporary judges. Is continued provision an act, or is it a failure to act by reason of failing to withdraw that particular resource? Where serious constitutional issues have to be decided, the ability to bring such issues before the court should not depend on semantic quibbles of this nature, and I would require the clearest possible provision in the statutory framework to compel me to take such an unattractive approach. For the reasons set out in detail by Lord Penrose I am satisfied that the contention of the defender and the Lord Advocate must fail and that a devolution issue has competently been raised.
[3]The principal issue raised in this case arises out of Article 6.1 of the Convention which provides
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...".
The meaning and significance of the phrase "independent and impartial" has been discussed in detail in a number of cases in Europe and in Canada and most recently in Scotland in Starrs. We were referred to a substantial number of these cases, some of which were analysed in considerable detail. It is the duty of this court, when considering the interpretation of the Convention, to have regard to the decisions in the European Court of Human Rights ("E.C.H.R.") and the Commission. These decisions, however, are not to be treated in the same way as precedents in our own law. In so far as principles can be extracted from these decisions, those are the principles which will have to be applied. It is, however, clear from E.C.H.R. decisions that the decision in any particular case will depend upon the particular facts and circumstances of that case considered in the context of the legal system of the State concerned. While the general principles to be applied will remain constant, the actual decision in each particular case may vary, depending upon the way in which the principles are applied to the facts of that particular case. It is therefore of little assistance to consider the detail of cases involving military tribunals in Turkey or Belgium, probationary judges in Germany, Housing and Tenancy Courts in Sweden, and so on. I do not therefore propose to go through the detail of all the cases to which we were referred but would prefer to extract what appear to me to be the relevant principles and then apply those principles to the facts and circumstances of the present case. This appears to me to be consistent with the approach of the E.C.H.R. Such an approach is somewhat different to the Canadian approach, which is exemplified in three cases in particular, namely Valente v. The Queen 1985 24 D.L.R. 161, Attorney General of Quebec v. Lippé 1991 2 S.C.R. 114 and Reference Re. Section 6(2) of the Territorial Court Act (N.W.T.) 1997 152 D.L.R. 132. The Canadian approach is to treat independence and impartiality as separate elements, then split each of them into two separate components, and then carry out a step-by-step analysis in relation to each component. The end result may be the same, but in my opinion this analytical approach is somewhat unnecessary when considering the terms of Article 6 and the way in which the principles embodied in Article 6 should be applied to a particular case. As far as independence is concerned this covers method of appointment, security of tenure and freedom from any influence from outside sources which might affect a judge's decision in any particular case. As far as impartiality is concerned this relates again to extraneous influences which might be thought to affect a judge's decision. If, on a subjective test, it can be shown that a judge acted with some form of personal bias, whether due, for example, to relationship, financial interest or strong personal conviction, then he can not be regarded as impartial. There is, however, also an objective test which requires that judges should offer guarantees sufficient to exclude any legitimate doubts in this respect. As pointed out in Starrs there must be not only actual independence and impartiality but also the appearance of independence and impartiality.
[4]I now turn to consider the circumstances of this particular case. Until 1985 all judges sitting in the Court of Session or High Court of Justiciary were permanent appointments who held their office ad vitam aut culpam subject only to a compulsory retirement age. Under section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 it was provided that the Lord President may, with the consent of the Scottish Ministers, appoint a person who has held office as a judge of the Court of Session or as a Lord of Appeal in Ordinary to act as a judge of the Court of Session or High Court during such period or on such occasions as the Lord President may think fit. The major innovation came under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, Section 35(3) of which provides:
"Notwithstanding any provision in any enactment, if it appears expedient to the Secretary of State he may, in accordance with the provisions of paragraphs 5 to 11 of the said Schedule, and after consulting the Lord President, appoint persons to act as temporary judges of the Court of Session".
Paragraphs 5 to 11 of Schedule 4 are in the following terms:
"5(1)Any person who is eligible under -
(a)paragraph 1 above; or
(b)any other enactment,
for appointment as a judge of the Court of Session may be appointed as a temporary judge under section 35(3) of this Act for such period as the Scottish Ministers may determine, but, subject to paragraph 9 below, no such appointment shall extend beyond the date on which the person reaches the age of 70 years.
(2)Subparagraph (1) above is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993...
6.Subject to paragraph 7 below, a person appointed as a temporary judge under the said section 35(3) shall, while so acting, be treated for all purposes as, an accordingly may perform any of the functions of, a judge of the Court in which he is acting.
7.Subject to paragraph 8 below, a person shall not, by virtue of paragraph 6 above, be treated as a judge of the Court of Session for the purposes of any other enactment or rule of law relating to -
(a)the appointment, tenure of office, retirement, removal or
disqualification of judges of that Court, including, without prejudice to the generality of the foregoing, any enactment or rule of law relating to the number of judges who may be appointed; and
(b)the remuneration, allowances or pensions of such judges.
8.A person appointed to be a temporary judge of the Court of Session shall, by virtue of such appointment, be a temporary Lord Commissioner of Justiciary in Scotland.
9.Notwithstanding the expiry of any period for which a person is appointed under the said section 35(3) to act as a judge -
(a)he may attend at the Court of Session or the High Court of Justiciary
for the purpose of continuing to deal with, giving judgment in, or dealing with any matter relating to, any case begun before him while acting as a judge of either Court; and
(b)for that purpose, and for the purpose of any...
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