Politakis v Spencely
| Jurisdiction | Scotland |
| Judgment Date | 29 November 2017 |
| Neutral Citation | [2017] CSIH 74 |
| Docket Number | No 12 |
| Date | 29 November 2017 |
| Court | Court of Session (Inner House) |
[2017] CSIH 74
First Division
Sheriff Appeal Court
Apollo Engineering Ltd v James Scott Ltd [2009] CSIH 39; 2009 SC 525
Apollo Engineering Ltd v James Scott Ltd [2012] CSIH 88; 2012 GWD 40–777
Eba v Advocate General for Scotland [2011] UKSC 29; 2012 SC (UKSC) 1; 2011 SLT 768; [2012] 1 AC 710; [2011] 3 WLR 149; [2011] PTSR 1095; [2011] STC 1705; [2011] Imm AR 745; [2011] STI 1941
McGruther v James Scott Ltd 2004 SC 514; 2005 SLT 264; 2004 SCLR 328
R v Secretary of State for the Home Department [2013] CSIH 66; 2013 SLT 1108
Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60; [2005] 1 WLR 2070; [2005] 1 WLR 2070; [2005] 3 All ER 264; [2005] CP Rep 20
Maxwell, PB, The Interpretation of Statutes (12th St John and Langan ed, Sweet and Maxwell, London, 1969), p 191
Scottish Government, Courts Reform (Scotland) Bill: Explanatory Notes (and other accompanying documents) (SP Bill 46–EN) (Scottish Parliamentary Corporate Body, Edinburgh, February 2014) (Online: http://www.parliament.scot/S4_Bills/Courts%20Reform%20(Scotland)%20Bill/b46s4-introd-en.pdf (9 February 2018))
ScottishGovernment, Courts Reform (Scotland) Bill: Policy Memorandum (SPBill46–PM) (Scottish Parliamentary Corporate Body, Edinburgh, February 2014) (Online: http://www.parliament.scot/S4_Bills/Courts%20Reform%20(Scotland)%20Bill/b46s4-introd-pm.pdf (9 February 2018))
Process — Review — Appeal from Sheriff Appeal Court — Permission to appeal — Competency — Whether quorum of three judges required — Court of Session Act 1988 (cap 36), sec 31A
Gabriel Politakis raised an action of declarator and damages in the sheriff court against John Despenser Spencely and James Scott Ltd. The cause called before the sheriff for debate and, on 6 April 2016, the sheriff granted decree of absolvitor. The applicant appealed to the Sheriff Appeal Court (Sheriff Principal MW Lewis, Sheriff MP Morrison QC and Sheriff Principal RA Dunlop QC), which upheld the sheriff's decision and, on 8 May 2017, refused the appeal ([2017] SAC (Civ) 19). The applicant sought permission to appeal to the Court of Session.
Section 31A of the Court of Session Act 1988 (cap 36) (‘the 1988 Act’) (inserted by the Courts Reform (Scotland) Act 2014 (asp 18), sec 115) empowers the court to provide by Act of Sederunt, inter alia, for the determination of applications for leave or permission to appeal to the Inner House by a single judge of the Inner House, subject to a requirement to provide a mechanism for review by a division of the Inner House.
Rule 40.2 of the Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69)) provide that applications for leave to appeal from an inferior court shall be made to a procedural judge. Rule 40.1(c)(ii) (as amended by the Act of Sederunt (Rules of the Court of Session, Sheriff Appeal Court Rules and Sheriff Court Rules Amendment) (Sheriff Appeal Court) 2015 (SSI 2015/419), r 7(3)) defines an inferior court as including the Sheriff Appeal Court.
The applicant raised an action in the sheriff court seeking declarator and decrees for payment. The sheriff granted decree of absolvitor, and the Sheriff Appeal Court upheld the sheriff's decision. The applicant sought permission to appeal. The respondents objected to the determination of the application by a single procedural judge and it was remitted for consideration of the competency and merits by a quorum of three judges.
The respondents argued that the discretionary power provided by sec 31A of the 1988 Act had not been exercised. The Act of Sederunt of 2015 did not provide for a mechanism of review by a division of the Inner House, and therefore the amendment to include the Sheriff Appeal Court in r 40.2 was ultra vires. Furthermore, all existing rules of court, which did not meet the criteria set out in sec 31A of the 1988 Act, and which would otherwise permit determination of an application for leave by a single judge, were impliedly repealed.
Held that: (1) the reasonable inference from the discretionary terms of sec 31A of the 1998 Act, in the context of the requirement for permission to appeal, was that such applications would be dealt with under the current regime of procedural rules pending any exercise of the discretionary rule-making power contained in sec 31A as it had been Parliament's intention for all applications for leave to be dealt with in a similar manner (para 13); (2) even if the Act of Sederunt of 2015 was ultra vires, Ch 41 of the RCS otherwise provided that the quorum for procedural business, including applications for leave to appeal from a court, was one judge (r 41.2(1)) (para 14); (3) Parliament had been aware of the existing rules providing for applications for permission to appeal to be determined by a single judge and would have repealed them expressly had it wished to do so, the implied repeal of the existing rules would be inconsistent with the conferral of a discretionary rule-making power and with the savings provisions contained in art 7 of the Courts Reform (Scotland) Act 2014 (Commencement No 2, Transitional and Saving Provisions) Order 2015 (SSI 2015/ 77 (C 17)) (paras 15, 16); (4) permission to appeal was refused where the test in sec 113(2) of the Courts Reform (Scotland) Act 2014 was not met (paras 20–23); and respondents’ objection to competency repelled, and application refused.
Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070 followed.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Brodie and Lord Malcolm, for a continued hearing on the single bills, on 11 October 2017.
At advising, on 29 November 2017, the opinion of the Court was delivered by the Lord President (Carloway)—
Opinion of the Court—
[1] This is an application for permission to appeal from a decision of the Sheriff Appeal Court refusing an appeal from a determination of the sheriff granting decree of absolvitor. In the course of the initial hearing, the respondents raised an objection to it being determined by a single procedural judge, in terms of RCS 40.2 (Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69))). It was contended that, as a consequence of the operation of sec 115 of the Courts Reform (Scotland) Act 2014 (asp 18) (‘the 2014 Act’), which introduced sec 31A into the Court of Session Act 1988 (cap 36) (‘the 1988 Act’), a quorum of three judges was required. The procedural judge remitted the issue of competency, and the merits of the application, for consideration by such a quorum in terms of RCS 37A.2(3).
[2] This is the latest in a series of litigations involving either the applicant or Apollo Engineering Ltd, a company in which he held a controlling interest, and the second respondents. The disputes stem from a sub-contract between Apollo and the second respondents...
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...Discussion of and guidance in relation to the application of the second appeals test is to be found in the opinion in Politakis v Spencely 2018 SC 184, under reference to Eba v Advocate General for Scotland 2012 SC (UKSC) 1, at paragraph 48 and Uphill v BRB (Residuary) [2005] 1 WLR 2070, at......
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