When judges disagree

Is there still a thing we can call Scots law? There is certainly plenty of law taking place in Scotland. The Scottish Parliament has not held back on legislation since it opened for business in 1999. Our legal academics can trace the roots of a distinct conceptualisation of Scots law back through the centuries to the Low Countries and Ancient Rome. Our politicians are still occasionally to be heard insisting our jurisdiction and its institutions are unique and regarded with envy round the globe.

The reason I pose the open question, however, is based on the recent run of decisions of the UK Supreme Court that have overturned three out of the last five decisions of the Inner House of the Court of Session, the tip of the conceptualisation pyramid in Scotland.

According to the Scottish Judiciary website: ‘The Inner House deals mostly with appeals…The Inner House is divided into the First and Second Divisions, , which have equal authority and are chaired by the Lord President and Lord Justice Clerk respectively’.

The Inner House contains our wisest judicial heads who serve as stewards of our law as it meets new challenges of fact and circumstance that turn up in the lower courts in Scotland. And it tidies up fumbles further down the pyramid. In the longer view, since the inauguration of the UK Supreme Court in 2009, it turns out the Inner House has had its decisions upheld more often than not – approximately in a 3:2 ratio. A glance over the entire spreadsheet of UKSC business since it took over from the judicial committee of the House of Lords suggests at first glance that that’s as good a rate of UKSC endorsement as their colleagues from the English, Welsh and Northern Ireland courts. Possibly better.

There are two important qualifications to note. First, Scottish civil cases have a direct route to the UKSC that is not enjoyed by prospective appellants in the other jurisdictions. They must seek leave to appeal from their own courts and an assessment is made at that stage of what the issues are and whether there is a significant new legal point to be argued. If they are refused leave to appeal they can appeal that decision to the UKSC. Some do and many of those are refused again. The UK Supreme Court does not appear to be actively seeking work. The UKSC statistics show that 43 of its 207 cases – 20% – in the three years from 2011/12 to 2013/14 came from Scotland.

In a two-part blog on the UKSC website in May 2013 advocate Aidan O’Neill explained the convoluted constitutional route that created this direct access from the 1689 Claim of Right through to the UKSC via the 1707 Treaty of Union and the House of Lords.

The Inner House success scorecard should therefore be viewed in the context that several Scottish appeals against its decisions would never have reached the Supreme Court at all if they had come from England and Wales.

Aidan O’Neill cited an observation from Lord Reed in a 2013 case of Upritchard v Scottish Ministers that ‘the appeal did not on examination raise any arguable point of law of general public importance’ and hearing it ‘was not an appropriate use of the time of this court’. The sentiment has been repeated in several cases since.

The second qualification, however, is that among the successful appeals against Inner House decisions are several that have stretched the UKSC judges to the limit to find diplomatic words to convey their incredulity at the decisions reached in Edinburgh.

In the interface between the criminal appeal process, previously assumed to end in Edinburgh, and the European Convention of Human Rights, justiciable at the UK Supreme Court, the cases of Cadder in 2010 and Fraser in 2012 induced apoplexy in first minister Salmond and justice secretary MacAskill, when the High Court of Appeal was overturned by the judges in London.

In the Cadder case, concerning the right of an accused person to legal advice before being interviewed by police, a decision by a seven-judge Scottish bench was overturned in brutal terms by seven judges of the Supreme Court. It was asserted in public by certain politicians and in private within Parliament House that this was an outrageous interference in Scottish criminal justice by representatives of an alien jurisdiction. For alien, read English, even though the law they were applying was European and would have reached the same decision even if the UK Supreme Court had been taken out of the loop.

It was a humiliating moment. The Scottish Government introduced emergency legislation at Holyrood. Solicitors threatened to boycott the ad hoc scheme dreamed up by the government and the Scottish Legal Aid board to plug the gaps in coverage of overnight arrests. But was there anything in the argument that maybe the Scots judges were more in touch with the Scottish public and the Scottish way was distinctive and worth arguing for?

The names of Cadder and Fraser in the footnotes of criminal law have been joined by similar broadsides in the family law cases of Principal Reporter v K and even NJDB v JEG in 2012. The latter is formally listed as an appeal dismissed and the Inner House endorsed but the terms in which the adminstration of Scottish family law was ripped to pieces led Lord Gill to set up a task force under Lord Brailsford in pursuit of the ‘culture change’ recommended by the Supreme Court.

Of the most recent five judgements in Scottish cases handed down by the UKSC since last December, three have overturned Inner House decisions. The fourth, Moohan and another v The Lord Advocate, concerned an application by prisoners to be allowed to vote in last year’s indpendence referendum. The Inner House decision was that a referendum was not covered by the electoral law on which there has been a succession of European decisions declaring the blanket ban on prisoners voting in a general election non-compliant with the ECHR. Interestingly there were two dissenting opinions within the five-judge bench. This may yet turn out to be unfinished business.

The fifth was the Sustainable Shetland v Scottish Ministers appeal against Scottish Ministers’ decision to allow the construction of a wind farm in Shetland. It was one of those cases that relied on the unimpeded 1689 route. It didn’t delay the judges long.

Of the three appeals upheld against the Inner House, McGraddie v McGraddie at first sight concerned a dispute between a father and a son about property transactions. The first instance judge found in favour of the father and made his determination accordingly.

The Inner House upheld an appeal by the son. The Supreme Court took a very dim view not only that it had interfered with the decision of the lower court but had substituted its own view of the credibilty of the witnesses whom it had not heard. It was a comprehensive criticism that ‘the Inner House had no proper basis for concluding that the Lord Ordinary had gone plainly wrong, let alone that on a re-consideration of the whole evidence that an opposite conclusion should be reached’. Ouch.

The sequence appears to have been similar in the case of Greater Glasgow Health Board v Doogan and another. Two midwives sought to excuse themselves from any involvement with patients who are having a termination of pregnancy. They had argued that grounds of conscience which excused them from ‘participating’ in a termination should be extended to wider ward support of women admitted for termination. Again a judge at first instance rejected their case but the Inner House intervened and allowed their appeal. And again the UK Supreme Court gave their legal justification very short shrift.

Finally, perhaps the most curious case of all – concerning Jackson v Murray and another. In a tragic incident in January 2004 a 13-year-old schoolgirl, Lesley Jackson, stepped out from behind her school bus on the Banff-Fraserburgh Road and was severely injured when struck by a car on the opposite carriageway. It was after school on a dark January afternoon. After an extraordinary passing of time she was awarded some damages in the Court of Session by Lord Tyre who nevertheless determined that she was 90% responsible for the incident. The financial award was reduced accordingly. There’s law on contributory negligence even for 13-year-olds.

That attribution of contributory negligence to Lesley Jackson was appealed to the ‘extra division’ of the Inner House. Three judges, Lord Clarke, Lord Drummond Young and Lord Wheatley explained that it was a difficult matter to interfere with a decision made by a judge in an area that allowed considerable discretion. Nevertheless, they did and reduced that attribution of contributory negligence to 70%. Their decision was appealed to the UK Supreme Court which in turn explained last month that it was a difficult matter to interfere with a decision of a judge in an area that allowed considerable discretion etc. Nevertheless, in his leading judgement, Lord Reed overcame his reluctance and with the support of Lady Hale and Lord Carnwath further reduced the liability to 50%.

Lord Reed said: ‘I cannot discern in the reasoning of the Extra Division any satisfactory explanation that the major share of the responsibility should be attributed to the pursuer…’. Eleven years later it appears to be the end of the road.

Lord Reed is one of the two Scottish members of the Supreme Court. The other is Lord Hodge who dissented with an opinion that accepted that the 70% finding of contributory negligence was indeed high but he didn’t think that it was correct for the Supreme Court to interfere.

Whatever the jurisprudential rights and wrongs of these decisions, or the sympathies that go to anyone mired in litigation for years and the financial and emotional stress that are part of the experience, it is difficult to detect any distinctive Scottishness or Scots lawishness at stake in these manifest disagreements between the courts in London and Edinburgh. Is the Inner House protecting or even developing Scots lawishness under its stewardship?

I return to my opening question. Is there still such a thing as Scots law? Is it distinctive? Is it better? Is it in tune with the perceptions of modern civic Scotland? Right now, I have an open mind though I rather think if I have to ask then I probably know the answer.

Update 12th March 2015

It’s not just a matter of keeping score. As a matter of superficial arithmetic, the United Kingdom Supreme Court decision on Wednesday March 11th in the case of Montgomery v North Lanarkshire Health Board was the fourth time it had overturned a decision of the Inner House of the Court of Session out of the last 6 occasions it had been asked.

It was followed within minutes by the UKSC’s decision in the case of Carlyle v Royal Bank of Scotland. That made 5 out of 7.

The circumstances in each of those five reversals are different and the narratives given by the Supreme Court judges for doing so have deployed a spectrum of language from incredulity to respectful finessing. It remains the case that more judgments have been upheld than reversed since the UK Supreme Court succeeded the House of Lords as the top court in the land in 2009 (see my blog www.lawfulbusiness.co.uk).

However, the blunt terms of the recent decisions must be a concern. Litigants and their legal advisers in Scotland need to have confidence in the predictability and consistency of decisions in Scotland’s highest courts when assessing whether to battle on, withdraw or settle.

Has the Inner House been trying to trace a distinctly Scottish view of cases that has brought it into collision with the thinking of the Supreme Court, notwithstanding the presence of two Scottish judges among its number? Or has the Inner House become inherently more cautious, arguably more conservative than either its own recent predecessors or its current Supreme Court contemporaries. Has cautious and Scottish become one on the Scottish bench?

In Montgomery v North Lanarkshire Health Board the UK Supreme Court overturned successive Scottish court decisions that had rejected Nadine Montgomery’s claim for damages following the birth of her son, Sam, at Bellshill Maternity Hospital in 1999.

As a result of complications during delivery Sam was born with severe disabilities.

The case hinged on whether the medical practitioners (who were employed by the Health Board) went far enough in advising Mrs Montgomery of all the potential risks of giving vaginal birth to her son rather than by caesarian section, given that she was slight in stature but Type 1 diabetic - often associated with delivering large babies.

The full judgment sets out the unfortunate facts of the case which were not greatly in dispute.

The broadcast news bulletins understandably have concentrated on the large award, previously agreed in the region of £5.25m, that has been secured by Mrs Montgomery for Sam’s care.

Of greater significance beyond Mrs Montgomery and Sam individually is that the UKSC took the opportunity to reset the balance between informed consent and medical negligence in tune with the times and current expectations of the relationship between a patient and a practitioner.

In their consideration of the issues in Scotland, first Lord Bannatyne in 2010 and then an Inner House bench of Lord Eassie, Lord Hardie and Lord Emslie in 2013 stated they were following the approach laid down in the 1985 House of Lords decision in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital. It has been the guiding case since and in some respects it may seem unfair to criticise unduly the Inner House for holding the line so clearly drawn 30 years ago by Lords Diplock and Templeman.

Except that it was 30 years ago. Sidaway used to be king. Now it is simply “unsatisfactory”.

Lord Reed asserted: “Since Sidaway, however, it has become increasingly clear that the paradigm of the doctor-patient relationship implicit in the speeches in that case has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship. “

Taking into consideration the changing expectations of patients as consumers and the multiplicity of sources of information available to them, most patients and most doctors now expect “dialogue” about the prospective benefits and risks inherent in a prospective treatment.

It is perhaps an indulgence enjoyed by judges at the very top of the pyramid to decide when the longstanding precedents are no longer fit for purpose. Indeed it is their job.

But a question for the Inner House to address was what had stopped it applying its own intellectual rigour to the Montgomery case and declaring that its judgment was that Sidaway and associated ‘tests’ were out of date rather than appearing to dig in? Cautious or Scottish?

Lord Reed asserted in another part of the judgment that English courts have effectively been disregarding Sidaway for some time. As in the 2010 Cadder case did the Scottish bench really not see the signs that the light at the end of a tunnel was a locomotive racing towards it?

Wednesday’s second reversal of an Inner House decision, Carlyle v Royal Bank of Scotland, is in some respects more embarrassing. The case itself concerns a dispute between Mr Carlyle, a property developer, and Royal Bank of Scotland over funding he believed had been agreed and confirmed in a phone call with a Ms Hutchison of RBS in June 2007 for the purchase and then development of some plots of land near Gleneagles Hotel in Perthshire.

However, the Bank decided in August 2008 not to provide funds for building a property on the land for which it had provided a loan in the intitial purchase. Mr Carlyle’s plans foundered. The bank called in the loan and raised an action against him for close on £1.5m.

The judge at first instance in the Court of Session, Lord Glennie, heard witnesses and assessed the evidence and in 2010 gave judgment in favour of Mr Carlyle.

The bank appealed. In September 2013 a bench of Lord Carloway, Lady Dorrian and Lord Bracadale in the Second Division of the Inner House overturned Lord Glennie’s decision, reinterpreting the evidence that had been heard and substituting its own view of the sustainability of Mr Carlyle’s proposition that he had been given a binding undertaking by the bank.

Wednesday’s Supreme Court decision was extraordinary in itself, verging on Alice Through the Looking Glass.

Lord Hodge said, “Were I deciding the matter at first instance and if the findings of fact record all the material evidence, I think that I might have shared the view of the Second Division (a) that the statement by Ms Hutchison on 14 June 2007 did no more than communicate to Mr Carlyle that the bank had reached a decision in principle to provide funding for the development of the two plots and (b) that the parties were required to take further steps to create a legally binding obligation on the bank to advance that funding.

“BUT”, Lord Hodge continued, sweeping the feet from under the Inner House, “deciding the case as if at first instance is not the task assigned to this court or to the Inner House. It is not appropriate to restate at any length in this judgment the dicta from prior cases which this court recently set out in McGraddie v McGraddie and discussed in Henderson v Foxworth Investments Limited.”

In short, the Inner House might have been right but was only entitled to interfere if there had been an error in law by Lord Glennie or his interpretaton of the evidence was unsustainably wrong and if he was wrong in this case he wasn’t wrong enough so therefore he must be taken to be right: the evidence means what he said it means.

It was not the Inner House’s business to second guess the judge who had actually heard the witnesses. The evidence means what he said it means

The UK Supreme Court went over this ground in McGraddie v McGraddie in July 2013. The Inner House decision in Carlyle v Royal Bank of Scotland was delivered in September 2013. They should have known.

However, it may be that lessons are being learned.

In two recent decisions in the Inner House (Coyle v Lanarkshire Health Board, and Little v Glen) the decisions in McGraddie and Henderson were applied without hesistation, and the decisions of the Lords Ordinary (Tyre and Jones respectively) were not interfered with.

I’m told Sheriffs Principal now expect McGraddie to be cited as a reason for repelling appeals on a routine basis.

And slipped into Lord Hodge’s judgment in Carlyle was a masterpiece of understatement that may have gone some way to explaining how wires could have been crossed between a client and the Royal Bank: “… it is notorious that the prudence which historically has been attributed to Scottish bankers was not always in evidence in commercial and mortgage lending in the years leading up to financial crisis in 2008.”

Carlyle v Royal Bank of Scotland is not entirely over. The Supreme Court did not reinstate Lord Glennie’s determination but set aside the interlocutors of the Second Division dated 12 September 2013 and 3 October 2013, and remitted the case “to a commercial judge in the Court of Session to proceed accordingly”. It may well be that Mr.Carlyle in winning this battle has not yet won the war.