Inner House rules application for appeal is incompetent after Sheriff Appeal Court refusal

About this case:

• Citation:
  [2022] CSIH 23
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Dorrian

An application by the woman, JK, for leave to appeal to the Court of Session had already been refused by the Sheriff Appeal Court. On this basis the respondent, Argyll and Bute Council, argued that a direct application to the Court of Session was incompetent.

The application was considered by the Lord Justice Clerk, Lady Dorrian, alongside Lord Malcolm and Lord Woolman. Leighton, advocate, appeared for the applicant and Blair, advocate, for the respondent.

Substantial point of law

After concerns were raised about the applicant’s mental health, the respondent brought a summary application in the sheriff court seeking to appoint a welfare guardian for a period of three years under section 57(2) of the Adults with Incapacity (Scotland) Act 2000. The application was supported by the applicant’s father and her primary carer, however she opposed it on the ground that she did not have a mental disorder.

The sheriff concluded following a proof that the applicant suffered from a serious delusional disorder and concluded that a one-year guardianship order would be to her benefit. An appeal was made to the Sheriff Appeal Court, which was refused. Following refusal of permission to appeal to the Court of Session from the SAC, the applicant sought direct leave.

Initially, the applicant sought permission to appeal under section 113(1)(a) of the Courts Reform (Scotland) Act 2014, however the clerk of the SAC advised her that this was incompetent and that any such application required to be made under section 2(3) of the 2000 Act. The SAC determined that the legal test in the 2000 Act was less stringent than that of the 2014 Act, but nonetheless there was no substantial or arguable point of law upon which to base an appeal.

Counsel for the applicant submitted that the SAC had erred in concluding that the question of leave fell to be determined under section 2(3) of the 2000 Act. It had misread section 109 of the 2014 Act, which applied only to appeals to, not from, the SAV. Section 113 applied to the current proceedings. The respondent submitted that a right of appeal to the Court of Session depended upon leave being granted by the SAC, and the effect of statute was simply to preserve the pre-2014 Act jurisdiction of the sheriff principal.

Well established principle

Lady Dorrian, delivering the opinion of the court, observed: “The 2014 Act transferred the former appellate jurisdiction of the sheriff principal to the sheriff appeal court. Section 109 did that and no more. An appeal to the Court of Session may only be exercised with the leave of the sheriff appeal court, or, such leave having been refused, by the Court of Session: section 113. Importantly, however, where statute already provides a right of appeal, the relevant restrictions continue to apply.”

She continued: “Put short that means that no section 113 appeal to the Court of Session can be made if there is another statutory route. Section 2(3) of the 2000 Act clearly falls into that category. Section 113(4) makes it clear that this remains the only route for an appeal to this court in cases under the 2000 Act. There is no opportunity to obtain leave direct from the Court of Session, and the course sought by the applicant is incompetent.”

Noting the legislative purpose of the 2014 Act was to limit the number of cases going to the Court of Session, Lady Dorrian added: “In the course of his submissions counsel for the applicant submitted that leave should be granted because of the importance of the substantive issue to which the application relates. That would be a relevant issue to address were the application competent in the first place. However, an issue may be important without raising an arguable point of appeal.”

She concluded: “The sheriff appeal court however considered that the case concerned ‘the application of existing legal principle, well established under existing authority, both domestic and ECHR. The Inner House is not being asked to determine a matter where there is no authority or the law is plainly unclear or the decision is plainly wrong.’ It refused leave because the applicant had “singularly failed to set out why or how the sheriff and this Court erred in law in reaching their respective decisions’.”

Leave to appeal was therefore refused.