Analysis EdinLR Vol 13 pp DOI: /E

Transcription

1 Analysis EdinLR Vol 13 pp DOI: /E Mitchell v Glasgow City Council: A Foreseeable Result? In the law of delict, leading cases often involve unfortunate facts. That is certainly true of Mitchell v Glasgow City Council. 1 Mr Mitchell and Mr Drummond were neighbours, both tenants of Glasgow City Council under secure tenancies. In December 1994, following a dispute about noise, Drummond battered the door to Mitchell s house with an iron bar and smashed its windows. After the police became involved, he threatened to kill Mitchell. According to the pursuers averments, this threat was repeated monthly thereafter. On 31 July 2001 the Council held a meeting with Drummond at which he was told that they were going to serve on him a notice of proceedings for the recovery of possession 2 and that continued anti-social behaviour could result in his eviction. Drummond returned home and, at about 3pm that day, attacked Mitchell with a stick or iron bar. Mitchell died from his injuries. Drummond was charged with murder, but the Crown accepted a plea to culpable homicide. Mr Mitchell s widow and daughter sought damages from the Council on two grounds. They alleged that, by failing to consider Mitchell s safety when arranging the meeting with Drummond and, in particular, by failing to warn Mitchell either before or after the meeting, the Council had broken its common law duty of care. Had he been warned, Mitchell could have taken steps to avoid Drummond. 3 Further, it was argued that the Council had acted incompatibly with Mitchell s right to life under article 2 of the European Convention, in contravention of the Human Rights Act The House of Lords held both claims to be irrelevant. This note considers only the negligence claim. 4 Like many other decisions of the House of Lords in Scottish appeals regarding negligence, Mitchell is of significance beyond Scotland. 5 It considers the general approach to determining whether a duty of care exists and, specifically, what is required in respect of omissions. It is, however, particularly noteworthy from a Scottish perspective because it has been previously 1 [2009] UKHL 11, 2009 SLT Under the Housing (Scotland) Act 1987 s Mitchell at paras 14, 38, 49. More extensive duties had been averred in lower courts: see [2008] CSIH 19, 2008 SC 351 at para The article 2 claim failed as the pursuers were held not to have met the test set by Osman v UK (2000) 29 EHRR 245, namely that the Council knew or ought to have known of a real and immediate risk to Mitchell s life: see paras It has already been relied upon by the English Court of Appeal in X v Hounslow LBC [2009] EWCA Civ

2 478 the edinburgh law review Vol been suggested that Scots law differs from English in both of these areas. The House of Lords held this not to be the case. A. A UNIQUE SCOTS LAW OF NEGLIGENCE? The primary hurdle for the pursuers was that their claim was in respect of an omission, not commission: the Council, it was argued, should have acted so as to protect Mitchell from Drummond. Sometimes the distinction between act and omission can be difficult to draw. 6 Critically, it is not simply a distinction between activity and passivity. 7 However, despite the difficulties, the distinction is fundamentally sound. 8 It is, in the words of Cardozo CJ, the difference between being an instrument of harm and an instrument of good. 9 To distinguish the two is not to say that there can never be liability for failing to confer a benefit, only that this will be more difficult to make out. The misfeasance/non-feasance distinction may be one which is deeply rooted in the common law, 10 but is it drawn by Scots law? It has recently been suggested not. In Burnett v Grampian Fire and Rescue Service, Lord Macphail said that the law of Scotland does not draw a distinction between act and omission comparable to that which appears to exist in the English law of tort between misfeasance and non-feasance. 11 After all, Lord Atkin did not distinguish the two in Donoghue v Stevenson. 12 Nor, however, did he distinguish between physical injury, psychiatric injury and pure economic loss, and one would not deny that these types of claim are subject to different requirements. Professor Walker certainly thought that Scots law drew a distinction between acts and omissions similar to English law. 13 In the Inner House in Mitchell, Lord Reed questioned Lord Macphail s view: Although not determinative of the question whether a duty of care exists, the distinction is relevant to that question under Scots law, as it is under English law. 14 In the event, this was the approach taken by all of the members of the House of Lords, some by implication, by their searching for particular reasons to recognise a duty of care in this case, and others expressly. 15 Lord Scott was explicit: [i]t is a feature of the common law both 6 Lord Rodger (at para 55) and Baroness Hale (at para 76) noted that this case was not a pure omission as the Council were actors in the events which led to Mitchell s death: they had arranged the meeting with Drummond and so had provided the opportunity for the attack. However, the pursuers argument was still that the Council had failed to take steps to protect Mitchell from a third party and so the rules on omissions were still applicable. 7 C McIvor, Third Party Liability in Tort (2006) 9. 8 Stovin v Wise [1996] AC 923 at 930B per Lord Nicholls. For statements of the principle, see, e.g., Dorset Yacht Co Ltd v Home Office [1970] AC 1004 at 1060 per Lord Diplock; Stovin v Wise at 929H-931D per Lord Nicholls, 943E-944G per Lord Hoffmann. 9 HR Moch Co Inc v Rensselaer Water Co 159 NE 896 (1928) at J G Fleming, The Law of Torts, 9 th edn (1998) [2007] CSOH 3, 2007 SLT 61 at para SC (HL) 31 at D M Walker, The Law of Delict in Scotland,2 nd edn (1981) SC 351 at para SLT 247 at para 15 per Lord Hope, para 39 per Lord Scott.

3 Vol analysis 479 of England and Wales and of Scotland that liability in negligence is not imposed for what is sometimes described as a mere omission. 16 The pursuers argued that, as this was a case of physical injury, there was no need to satisfy the Caparo 17 criteria in order to recognise a duty of care and that foreseeability alone sufficed. There has certainly been criticism of the Caparo test, and there was support for the position that it should not apply to novel cases of personal injury. 18 The argument made to the House of Lords, though, was not just that Caparo did not apply to novel cases of personal injury, but that the Caparo test was not part of Scots law in such cases. Baroness Hale summarised the pursuers position: [w]hatever might be the case south of the border..., the law in Scotland was based on principle; and that principle is the foreseeability of harm to one s neighbour, set out by Lord Atkin in Donoghue v Stevenson. 19 The argument that Scots law should beat a different path from English in respect of the test for establishing a duty of care has been made before, most persuasively by Professor Brodie. 20 However, previous arguments that core areas of negligence should be analysed differently in Scotland and England have not fared well. 21 The present case was no exception. The argument that the test for liability was different (and more exacting) in England than in Scotland was rejected. 22 Given the intertwined nature of Scots and English law in this area, 23 this was unsurprising. Lord Brown went as far as to describe the argument as bizarre. 24 B. DUTY OF CARE IN OMISSIONS CASES In adopting the position that foreseeability alone could not determine the existence of a duty of care in omissions cases, the House of Lords rejected Lord Mackay of Clashfern s approach in the earlier Scottish case of Smith v Littlewoods, 25 favouring instead that of Lord Goff. In Smith, the House of Lords held that an owner of derelict property had owed no duty of care to neighbours to keep the premises secure and free of the young fire-raisers who eventually lit a fire which spread and damaged neighbouring buildings. The means by which Lords Goff and Mackay reached that conclusion were very different. For Lord Mackay, the issue was whether a reasonable person in the defenders position was bound to anticipate what had occurred as very 16 Para Caparo Industries plc v Dickman [1990] 2 AC Perrett v Collins [1998] 2 Lloyd s Rep 255 at per Hobhouse LJ. See also Marc Rich & Co AG v Bishop Rock Marine Co [1996] AC 211 at 229E-230D per Lord Lloyd (diss). 19 Para D Brodie, In defence of Donoghue 1997 JR E.g. Strathford East Kilbride v HLM Design Ltd 1999 SLT 121 at 123F-K per Lord Maclean; Gibson vorr1999 SC 420 at 430D-432B per Lord Hamilton. 22 At para 25 per Lord Hope, paras 75, 78 per Baroness Hale, para 80 per Lord Brown. 23 A Rodger, Say not the struggle naught availeth : the costs and benefits of mixed legal systems (2003) 78 Tulane L Rev 419, ; H L MacQueen and W D H Sellar, Negligence, in K Reid and R Zimmermann (eds), A History of Private Law in Scotland (2000) vol 1, 517, Para SC (HL) 37.

4 480 the edinburgh law review Vol likely or probable. 26 This approach drew no distinction between acts and omissions 27 and treated all issues as questions of breach of duty. The facts of Smith did not pass this high threshold. Lord Goff, on the other hand, emphasised that the problem in omissions cases could not be solved simply through the mechanism of foreseeability. 28 Instead, he listed various categories of case in which liability for omissions could exist. These were, though, exceptions to the general rule. 29 Examples were (i) where there is a special relationship between the defender and the third party who has injured the pursuer (e.g. parent-child); (ii) where the defender negligently creates or permits to be created a source of danger which he then negligently fails to abate; or (iii) where the relationship between the pursuer and defender involves the assumption of responsibility by the defender to the pursuer to take steps to protect the pursuer against the harm which eventually arises. Because omissions cases often involve the claim that the defender has failed to protect the pursuer against a third party, a test such as Lord Mackay s, which insists on a high degree of probability of a particular outcome, will not usually impose liability in respect of omissions: 30 the involvement of a third party introduces an extra degree of uncertainty. Indeed it will sometimes prevent recognition of a duty to act where, in fact, one is recognised by law. Attorney General of the British Virgin Islands v Hartwell 31 is a recent example. No duty would have been established there had it been necessary to show that it was highly likely that the police officer, once provided with a weapon, would abandon his post and attempt to shoot his former partner, injuring a tourist in the process. On Lord Goff s approach, once a duty of care is cast upon a person in respect of omissions, the ordinary standard of foreseeability applies. 32 Lord Mackay s test would also recognise duties where Lord Goff s approach would not. In the much discussed examples of the child drowning in a puddle or the careless man walking briskly, but obliviously, towards a cliff, the result would be different. Lord Mackay s approach therefore was inconsistent with the libertarian starting point of the Common Law regarding omissions. In Mitchell the House of Lords unanimously rejected foreseeability alone as an adequate tool for establishing duty in omissions cases. 33 In a phrase which has already been relied upon in a subsequent case, 34 it was said that if a defender is to be held responsible for failing to protect against another s deliberate wrongdoing, it must be because... the situation is one where it is readily understandable that the law should regard the defender as under a responsibility to take care to protect the pursuer 26 At Indeed, at one point (67) Lord Mackay appears to reject such a distinction. 28 At At At 68. Indeed, on this approach, the pursuer would surely have lost in Mitchell: see 2009 SLT 247 at paras per Lord Hope. 31 [2004] UKPC 12, [2004] 1 WLR 1273 at para 25 per Lord Nicholls SC (HL) 37 at SLT 247 at para 15 per Lord Hope, para 39 per Lord Scott, para 56 per Lord Rodger, para 75 per Baroness Hale, para 80 per Lord Brown. 34 X v Hounslow LBC [2009] EWCA Civ 286 at para 53 per Sir Anthony Clarke MR.

5 Vol analysis 481 from that risk. 35 This was not such a situation. The case fitted into none of Lord Goff s categories. There was nothing in the relationship of landlord and tenant which meant that a landlord assumed responsibility for a tenant s safety (focusing upon the relationship between Mitchell and the Council) 36 nor for the safety of a tenant s neighbours (focusing on the relationship between the Council and Drummond). 37 Nor could it be said that, when the Council decided to act in respect of Drummond, it assumed responsibility towards Mitchell. It was simply exercising, or preparing to exercise, its statutory powers. 38 Although Lord Brown thought that the case was not about the liability of public authorities, 39 several of the judges did focus on the fact that the defender was a council exercising the functions of a social landlord and with a broader role in the community. Various reasons of public policy were relied upon to support the conclusion that it would not be appropriate to hold the defender liable. 40 For example, imposing a duty of care would likely deter action to prevent anti-social behaviour. Of course, one might argue that the current approach taken towards the negligence liability of public bodies is unduly restrictive. What is clear from Mitchell is that it is not sufficient for Scots lawyers of that view simply to assert that Scots law is different from English. Peter Webster EdinLR Vol 13 pp DOI: /E Public Authority Liability: Stifling the Common Law Jain v Trent Strategic Health Authority 1 addresses the role of the common law of negligence in protecting the citizen from oppressive behaviour on the part of regulatory bodies. The claimants ran a nursing home for patients who were mentally ill and infirm and the defendants were the regulatory body. 2 The statutory framework was provided by the Registered Homes Act The regulator had certain powers 35 Para 20 per Lord Hope (referring to Lord Reed in the Inner House: 2008 SC 351 at para 94). See also para 76 per Baroness Hale. 36 Para 41 per Lord Scott. Lease law is not the same in Scotland and England, so one may query the reference to the landlord s covenant for quiet enjoyment. 37 Para 82 per Lord Brown SC 351 at paras 79, 127 per Lord Reed. See X v Hounslow LBC [2009] EWCA Civ 286 at para 60 per Sir Anthony Clarke MR SLT 247 at para Paras per Lord Hope, paras per Lord Rodger, para 77 per Baroness Hale. 1 [2009] UKHL 4, [2009] 2 WLR As successor in title to the Nottingham Health Authority. 3 The Act does not apply in Scotland. In England the relevant provisions have been repealed but are re-enacted in the Care Standards Act 2000.

6 482 the edinburgh law review Vol of intervention, including a power to apply to a magistrate in an emergency for an immediate order for the cancellation of the registration of the proprietor of the nursing home without giving the proprietor any notice. Those powers were exercised in the case of the claimants and the home was closed as a result. The claimants had been given no prior notice of the application or of the grounds on which it was made and, therefore, had no opportunity of contesting the matter. The 1984 Act allowed for an appeal to a tribunal. The claimants appealed successfully, but this appeal was not heard until some four months after closure had been imposed and, by this stage, the business was ruined. The tribunal was scathing in its criticism of the regulator in exercising its powers of intervention on the basis of irrelevant and prejudicial information and of insinuations of abuse of residents notwithstanding the absence of supporting evidence. This prompted the trial judge to hold that the decision to make an emergency application without notice was unreasonable in the public law sense: that is, he considered that no reasonable authority could have come to that decision. The House of Lords concluded that the application for closure should never have been made. The tribunal s finding for the claimants was somewhat hollow as there was no power to award compensation. The claimants turned to the common law. The crux of the matter was whether the regulator, in exercising the powers conferred by statute, owed a duty of care in negligence. The answer given by the House of Lords was in the negative because the primary purpose of the legislation was said to be the protection of those resident in homes; this aim might be undermined were a duty to be owed to those in the business of running homes since the interests of the two constituencies might well come into conflict. 4 With particular reference to authorities such as D v East Berkshire Community NHS Trust, 5 the House of Lords discerned a general principle that where action is taken by a regulator under statutory powers designed for the benefit or protection of a particular class of persons, a duty of care will not be owed to others whose interests may be adversely affected by an exercise of the statutory power. 6 A. DISCUSSION The nature of the harm suffered by the claimants in Jain was, it goes without saying, highly material. The courts are not inclined to permit recovery from a public authority of losses which are purely economic. Harris v Evans 7 dealt with the actions of a health and safety inspector who, in the course of his duties, gave advice to certain local authorities about the safety of a mobile crane used by the plaintiff for the purpose of bungee jumping. This resulted in the business being shut down for a period of time with consequent loss of profit. It was held that, given the statutory framework, 4 The House of Lords also found highly relevant the line of authority which holds that no duty of care is owed by one litigant to another over the manner in which litigation is conducted. 5 [2005] UKHL 23, [2005] 2 AC SeealsoB v Attorney General of New Zealand [2003] UKPC 61, [2003] 4 All ER [1998] 1 WLR 1285.

7 Vol analysis 483 the inspector did not owe a duty of care in respect of his advice. The imposition of a common law duty might undermine the aims of the legislation in promoting health and safety. Should health and safety inspectors be unduly concerned about financial claims brought by businesses they might become overly cautious in exercising their powers. Similar fears were made very explicit in Jain. The question may be posed as to whether there are any circumstances in which a duty might arise. In Harris it was suggested that this might occur if the exercise of statutory authority introduced a new risk which led to loss. This line of thinking was clearly influenced by Capital & Counties plc v Hampshire County Council 8 which held that the fire service, where negligent, are only liable should they make matters worse. Capital has since been rejected in Scotland by Burnett v Grampian Fire and Rescue Service, 9 which held that, having attended a fire, a duty was owed to take all reasonable steps to extinguish it. In any event, focusing on the introduction of a new risk seems arbitrary. If the existence of a duty is to be contingent on the form of negligence which occurs, then regard should be had to the degree of negligence. It is arguable that gross negligence should be viewed as being qualitatively different. Jain may be seen as an application of the reasoning in Gorringe v Calderdale MBC, 10 which sought to bring about a reconciliation between the law on actions for breach of statutory duty and common law negligence. In short, if you could not sue on the statute you could not improve the position by bringing an action at common law. If the statute does not create a private right of action, it would be, to say the least, unusual if the mere existence of the statutory duty could generate a common law duty of care. 11 In a previous commentary in this journal, 12 I advanced the view that Gorringe was problematic in that it fails to achieve an effective synthesis of all of the relevant case law. Nevertheless, recourse to the law on the action on the statute may help explain why the claimants lost in Jain. In the influential public authority liability case of X (Minors) v Bedfordshire County Council 13 Lord Browne-Wilkinson noted that the House had not been: 14...referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general. 8 [1997] QB [2007] CSOH 3, 2007 SLT [2004] UKHL 15, [2004] 1 WLR Ibid at para 23 per Lord Hoffmann. 12 D Brodie, Public authority liability: the Scottish approach (2007) 11 EdinLR [1995] 2 AC At

8 484 the edinburgh law review Vol The 1984 Act would appear to be just the sort of legislation Lord Browne-Wilkinson had in mind. The absence of an action on the statute would point against a remedy in negligence. B. CONCLUSION The outcome in Jain is not surprising given the nature of the loss suffered, the identity of the defendant and the primary purpose of the legislation. One may still question whether a more balanced approach might not be developed. The action taken by the regulator was utterly unreasonable and highly oppressive. Whilst the interests of residents of care homes must be protected it would be wrong to ignore the interests of those such as the claimants: the public interest in the provision of nursing homes, particularly those who are willing and able to take patients who are not easy to look after... is liable to be affected if the owners of such homes have no recompense for the dreadful financial consequences of a slipshod, unwarranted application to the court such as was made here. 15 Were a duty to exist the competing interests could be taken into account in establishing the standard of care. Considerations which are relevant to the exercise of reasonable care by a public body but not to a private individual can be taken into account. 16 This approach has been adopted in Burnett and in several other Scottish public authority liability cases. 17 Finally, the House of Lords emphasised that, had the actions of the regulator occurred after October 2000, an infringement of the Human Rights Act 1998 might have arisen. It was arguably incompatible with Convention rights to have closed the home without affording the claimants the opportunity of showing the application to be insubstantial and based on insufficient grounds. Douglas Brodie University of Edinburgh EdinLR Vol 13 pp DOI: /E A Strange Notice In Christie Owen and Davies plc, t/a Christie & Co v Campbell 1 the pursuers entered into a sole-selling rights agreement with Campbell, in terms of which the pursuers agreed to market Campbell s leasehold interest in licensed premises. The pursuers 15 Jain v Trent Strategic Health Authority [2008] QB 246 at per Jacob LJ. 16 Just v British Columbia (1989) 64 DLR (4 th ) See e.g. McCafferty v Secretary of State 1998 SCLR 379 at 382 per Lord Johnston. 1 [2009] CSIH 26, 2009 SLT 518. The opinion of the court was delivered by Lord Clarke. For discussion of proceedings before the sheriff and the sheriff principal, see R G Anderson, Intimation (2008) 12 EdinLR 275.

9 Vol analysis 485 did so, finding a buyer willing to pay 46,000 for an assignation of the lease. As a result of the transaction, the pursuers became entitled to payment of a commission of 7,966 plus VAT. Tucked away in the agreement was a clause which ran:...i/we hereby authorise the vendor s solicitors... to pay out of money received by such solicitors, the fees requested by [the pursuers]. Campbell s solicitors were the second defenders and the contradictors to the action. The solicitors had acted for Campbell in the assignation of the lease and it was the solicitors who held the funds following the assignation of Campbell s lease. Following the settlement of the lease transaction, the pursuers sent a letter to the solicitors enclosing their fee note. The letter stated, We look forward to receiving payment in early course. We look forward to hearing from you in due course. 2 The pursuers were not paid. The report does not disclose any commercial reason why the solicitors refused to pay. The only reason argued was that, although the clause in the agreement was capable of being an assignation, 3 there had been no proper intimation of the assignation. But there is no indication in any of the opinions that the solicitors had paid away the moneys they admittedly held or that they had received a competing claim to payment and were thus in double-distress. The solicitors even conceded before the court that if the documents had been read when they were received then they would have been left in no real doubt that the appellants fell to be paid the sum in question. 4 And, in any event, providing no other interests intervene between intimation and the raising of the action, the production of the assignation in process amounts to judicial intimation, 5 which is the best of all intimations. 6 This point does not appear to have been raised at any stage in the case. A. THE LAW Before the Extra Division, two principles were discussed: first, whether sending a letter together with a large commercial agreement to which the debtor is not party is sufficient intimation; and, second, whether intimation not complying with the terms of the Transmission of Moveable Property (Scotland) Act 1862 requires to be acknowledged. (1) A preliminary issue Nowhere in the opinion of the sheriff, sheriff principal, or the Division, is there recognition that, in Christie, there was no competition. Intimation serves at least two purposes. 7 One is to inform the debtor of the assignation. The other is to provide a 2 Para 5. 3 Whether such payment instructions should be construed as assignations rather than mandates is controversial. See Anderson (n 1) at 276 n 7. 4 A concession highlighted by the Division: para See R G Anderson, Assignation (2008) paras 7-16 ff; Anderson (n 1) 279 n Carter v McIntosh (1862) 24 D 925 at 934 per the Lord Justice-Clerk (Inglis). 7 See Anderson (n 1) at 276.

10 486 the edinburgh law review Vol certain date on which the law holds transfer to occur. Christie was entirely concerned with the first of these purposes. Rather like the well-known decision in Libertas- Kommerz, 8 therefore, it is questionable whether Christie is any authority for whether informal intimation without acknowledgement would be valid in a case where there is a competing assignee or arrester. (2) Covering letters and intimation The sheriff and the sheriff principal took the commercial and common sense view that an assignee intimating an assignation should properly communicate what he is doing in any correspondence. It is not sufficient to send a letter demanding payment and enclose a full copy of an agreement to which the debtor is not party and which may be hundreds of pages long. The debtor cannot be expected to trawl through the provisions of the agreement for his own interest. Surprisingly, however, the Extra Division took a different view. Intimate, Lord Clarke tersely remarked, simply means to make known. 9 By sending the letter together with a fee note and the agreement, and demanding payment in accordance with the [agreement], the pursuers had properly intimated the assignation. With respect, this conclusion may be doubted. A demand for payment may be made on all sorts of legal grounds. That the pursuers in this case had a contract with Campbell that entitled them to payment of a commission would not necessarily mean that there was any entitlement to payment from the solicitors (with whom the pursuers had no contract). If the demand for payment was based on the pursuers position that they were assignees, the intimation by letter can be effective only if it tells the debtor that there has been an assignation, where the assignation can be found and, if the document is large, give the debtor reasonable instructions on where to find the operative clause. 10 In the same way that an insolvency practitioner does not respond to correspondence if there are no funds to pay him for doing so, solicitors do not read 100-page documents unless they are instructed (and paid) to do so. As it happens, however, the method of intimation in this case was unusual, for mainstream corporate and financial practice long ago moved away from complying with the terms of the Transmission of Moveable Property (Scotland) Act 1862 (which requires a certified copy of the assignation to be sent to the debtor). The Christie case therefore provides little support for the standard financial practice of sending to the debtor a clearly marked letter by recorded delivery, which contains an abbreviated notice signed by cedent and assignee. 8 Libertas-Kommerz GmbH v Johnson 1977 SC Christie at para A similar issue arose in McLauchlin, Petitioner [2009] CSOH 49. An on demand bond granted by a cautioner stated that a certificate by an officer of the lender would be conclusive evidence of the sums due. The cautioner consented to registration of the bond for execution. The lender served a charge for payment on the cautioner. The charge expired. The lender sought to do summary diligence. The petitioner sought suspension on the basis there had been no certificate crystallising the sums due. Lady Stacey held that the sums due were intelligible from the demand letters: see para 28.

11 Vol analysis 487 (3) Acknowledgement There has been some doubt in practice about whether an acknowledgement from the debtor is necessary before intimation of an assignation is effective. The law is clear in principle: an assignation is a transfer of a right against a debtor without the debtor s consent. Acknowledgement is thus only of evidential value. 11 But it is sometimes suggested that where the intimation is informal that is to say, where it does not conform to the 1862 Act or a recognised equipollent an acknowledgement from the debtor would be necessary for a valid intimation. 12 The Division, approving the treatment of the subject provided by Professor Wilson, 13 suggests in obiter dicta that (a) informal intimation is competent and (b) even where the intimation is informal, no acknowledgement is required. 14 B. CONCLUSION The Christie case is a strange one. Standing back for a moment, it might be queried how an action for payment of 9, required the consideration of a sheriff, a sheriff principal and the Inner House where there was no substantive defence to the action. The law of intimation is unsatisfactory in a number of respects. Yet intimation is crucial to practice. The wider questions, raised in a previous note, 15 are not addressed, so the obiter dicta about the general law of informal intimation and acknowledgment must be taken subject to the important caveat that no competing assignee or arrester was involved. Ross Gilbert Anderson University of Glasgow EdinLR Vol 13 pp DOI: /E An Opportunity Missed? Some Comments on the Interpretation and Legislative Reform (Scotland) Bill The Interpretation and Legislative Reform (Scotland) Bill has now been introduced into the Scottish Parliament, 1 following upon a consultation by the Scottish 11 The Transmission of Moveable Property (Scotland) Act 1862, for instance, provides that an acknowledgement from the debtor is sufficient evidence of intimation. 12 See, for instance, Anderson, Assignation (n 5) paras 7-11 ff. 13 W A Wilson, The Scottish Law of Debt, 2nd edn (1991) para Christie at para Anderson (n 1). 1 The Bill, together with accompanying documents, is available at s3/bills/27-interpretlegref.

12 488 the edinburgh law review Vol Government earlier in the year. 2 Two of the main purposes of the Bill are to make provision for the interpretation of Acts of the Scottish Parliament (ASPs) and instruments made under them, and for the ways in which a Scottish statutory instrument ( SSI ) may be scrutinised in the Scottish Parliament. It is surprising that for the past ten years questions as to how ASPs are to be interpreted and how SSIs are scrutinised by the Scottish Parliament have been determined by transitional orders made under the Scotland Act by the UK Government. It is long overdue that the Scottish Parliament and Government should make their own provision about such matters. The Bill is therefore to be welcomed. However, the opportunity to have a Bill dealing with such matters comes very rarely, making it all the more important that the Bill does all that is required. It is therefore unfortunate that this opportunity has been missed in four main areas. A. INTERPRETATION The provisions in the Bill dealing with interpretation of ASPs and Scottish instruments are based upon, and largely replicate the effect of, the existing Interpretation Order 3 with one or two exceptions. That Order was in turn based upon the Interpretation Act 1978 which deals with how Westminster Acts and instruments made under them are to be interpreted. This means that, by and large, ASPs are interpreted in a similar way to Westminster Acts. This in itself is not surprising. In following the Westminster model, the Bill follows the same tradition as certain Commonwealth countries. 4 The main purpose of that model is to shorten Acts by providing a dictionary which expresses what is implied by certain provisions or which defines certain terms which are commonly found in them. It does not lay down any substantive principles or rules by reference to which the courts are to interpret Acts or which may assist them in doing so. 5 Instead this is to be left to the judges. There are, however, two objections to this approach. First, this interpretative function frequently involves the courts in controversy because they may be perceived, or may perceive themselves, as encroaching on the legislative function of Parliament. It is contradictory to protest when courts do this and yet at the same time to argue that interpretation is a matter which should be left to the judges without any statutory intervention. Fundamentally, it should be for the Parliament, and not for the courts, to decide how its Acts should be interpreted. 2 See Scottish Government, Interpretation and Legislative Reform (Scotland) Bill: Consultation Paper (available at 3 The Scotland Act 1998 (Transitory and Transitional Proceedings) (Publication and Interpretation etc of Acts of the Scottish Parliament) Order 1999, SI 1999/ See Interpretation Act 1867 (Canada); Interpretation Act 1901 (Australian Commonwealth); Interpretation Act 1999 (New Zealand). 5 It is only in certain exceptional cases that Parliament has given the courts a direction as to how to approach the interpretation of Acts or ASPs, such as in s 3 of the Human Rights Act 1998 and s 101 of the Scotland Act 1998.

13 Vol analysis 489 Secondly, as the Law Commissions pointed out in their joint Report on the Interpretation of Statutes in 1969, 6 while it may not be possible to have a comprehensive statutory enumeration of the factors to be taken into account by the courts in interpreting statutes, a limited degree of statutory intervention would be useful for certain purposes. The purposes identified by the Law Commissions remain fundamentally relevant. It is, for example, still unsatisfactory not to know, without extensive and expensive litigation: how the courts will interpret a statutory provision and, in particular, whether and in what circumstances, and to what extent, they will adopt a literal or a purposive approach; whether breach of a statutory duty or provision will enable someone who suffers loss as a result of that breach to recover damages; and what materials the courts may take into account in interpreting a statutory provision and in what circumstances. This is particularly important now that the courts are also required, when interpreting a provision and in order to assess its compatibility with Convention rights, to examine what Parliament took into account in order to justify it. 7 In this context, section 55 is a surprising provision in the Bill because it does not relate to the interpretation of ASPs. It purports to amend the Interpretation Act 1978 by providing that references to enactment in Westminster Acts and instruments passed or made before 1 July 1999, and in the future, will include ASPs and instruments made under them unless a contrary intention appears. This provision was not included in the consultative draft. No explanation or justification is given in the Policy Memorandum as to why it is included, despite the express intention to the contrary in the Scotland Act, 8 nor why it is made retrospective. The only purpose and effect of making it retrospective would appear to be to validate any action taken, or cases decided in the past (including criminal convictions obtained), 9 upon the erroneous assumption that such references already included ASPs; but why this should be needed is not clear. Further, to be within legislative competence, the provision would have to be read down so that it does not apply to provisions which relate to reserved matters. 10 This could mean that references to enactment within the same Westminster Act will have different interpretations according to whether the reference does or does not relate to reserved matters. This could be very confusing. There is no indication given that the UK Government is prepared to make an order under section 104 of the Scotland Act to bring UK law into line with what is contained in the Bill. Section 55 will need to be explained and justified in detail at Stage 1. 6 Law Commission and the Scottish Law Commission, Report on The Interpretation of Statutes (Law Com No 21, Scot Law Com No 11, 1969) para See e.g. Adams v Scottish Ministers 2004 SC Scotland Act 1998 Sch 7 para 16(3). 9 E.g. under the Criminal Procedure (Scotland) Act 1995 s 293(1). 10 Scotland Act 1998 s 101.

14 490 the edinburgh law review Vol B. SCOTTISH STATUTORY INSTRUMENTS Part 2 of the Bill makes provision as to the procedures for the scrutiny of SSIs by the Scottish Parliament and in particular the negative and affirmative procedure. Most of its provisions are based upon, and largely replicate, the existing Order, 11 with certain simplifications. As that Order was itself based upon the Statutory Instruments Act 1946, this means that, by and large, SSIs are to be subject to similar parliamentary scrutiny as are statutory instruments in Westminster. The Bill gives effect to the main recommendation of the 2008 report of the Subordinate Legislation Committee that, subject to some improvements, the current arrangements and procedures for scrutinising SSIs should be retained. 12 That recommendation reversed the main recommendation of the 2007 report of the previous Committee, that most SSIs should be scrutinised in draft by the Parliament before they were made. 13 The idea was to streamline existing procedures, simplify the process, and to have better, more targeted and effective scrutiny by the Parliament. In particular, that Committee considered that the procedure most commonly used, the negative procedure, was ineffective because the SSIs were already made and were likely to have been brought into force by the time the subject Committee and the Parliament had an opportunity of considering them. The Parliament would then be reluctant to annul them even if it had serious concerns and, in any event, it might then be too late to reverse their effect. 14 While the benefits of this proposed procedure were acknowledged in the 2008 report, the Subordinate Legislation Committee suggested that there were a number of positive aspects to the present system, such as its flexibility, which favoured its retention. The Committee considered that many of the defects in that system could be remedied by making improvements to it. However, the only improvement it recommended which has a bearing upon the effectiveness of the negative procedure was to extend from 21 to 28 days the minimum period within which instruments subject to that procedure should be laid before Parliament before they can come into force. This is given effect by section 28(2) of the Bill. Although this may help individual Committees, it will not give time for the whole Parliament to consider whether to annul an instrument before it has come into force. Accordingly, the doubts about the effectiveness of the negative procedure identified in the 2007 report will remain. It is perhaps unsurprising that the Government is not in favour of increasing the effectiveness of parliamentary scrutiny of SSIs. What is surprising, however, is that the Parliament appears willing to deny itself the opportunity of doing so. It is hoped 11 The Scotland Act (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999, SI 1999/ Subordinate Legislation Committee, 12 th Report, 2008 (Session 3): Inquiry into the Regulatory Framework in Scotland (SP Paper 74, available at subleg/reports-08/sur08-12.htm). 13 Subordinate Legislation Committee, 14 th Report, 2007 (Session 2) (SP Paper 751, available at 14 The House of Commons last annulled a statutory instrument (the Paraffin (Maximum Retail Prices) (Revocation) Order 1979, SI 1979/797) in See HC Deb 24 Oct 1979, cols

15 Vol analysis 491 that it is not too late for the Parliament to amend what is currently in the Bill so as to increase the effectiveness of the negative procedure by: increasing the minimum period of 28 days before an instrument can come into force to something approaching the 40 days within which the instrument may be annulled; having a procedure which would allow the Government to remake a SSI to take account of points raised by the Subordinate Legislation Committee without having to re-start the clock on either the 40 or the 28 periods; and providing that, if the Parliament annuls an instrument after it has come into force, Scottish Ministers should be required to make an order restoring the position to what it was or else explain to the Parliament why it is not possible or desirable to do so. C. CONSOLIDATIONS Section 47(1) of the Bill gives the Scottish Ministers the power, by order, to make such modifications of enactments relating to a particular subject as in their opinion facilitate, or are otherwise desirable in connection with, the consolidation of the law on the subject. The consultation paper explains that this power will enable amendments to be made to the legislation being consolidated which are more extensive than those which the Scottish Law Commission can recommend. This, it is argued, is too limited because the Commission may be reluctant to make recommendations in relation to matters which involve significant policy changes or which are likely to provoke political controversy. 15 However, it is open to question whether these are the kind of amendments which Scottish Ministers should be able to make simply by order. Section 47(1) would enable Scottish Ministers to make amendments which they consider not only to be necessary or desirable to facilitate the consolidation but which are considered to be desirable in connection with the consolidation. This is a very wide Henry VIII power for the Parliament to give to the Government. The fact that the order requires an affirmative resolution is not an effective parliamentary control because Parliament is being denied the opportunity to scrutinise each amendment on its merits which it would have if they were made by a Bill. This power should at least be subject to a super-affirmative procedure which would enable the Parliament to consider, take evidence upon, and comment upon each proposed amendment. Otherwise, it would seem that the expedited procedure for consolidation Bills would be open to abuse. There is an even more fundamental objection. There appears to be a suggestion that this new power is needed in order to enable consolidations to proceed. This is far from being the case. It is not the absence of this power which has delayed consolidations but the fact that, since devolution, successive Scottish Governments have not appreciated the need for consolidation and have not been prepared to devote the necessary resources to enable them to be carried out. Although the Scottish 15 Scottish Government, Consultation Paper (n 2) 49.

16 492 the edinburgh law review Vol Law Commission has a statutory duty to prepare comprehensive programmes of consolidation and to draft Bills pursuant to such a programme, this can only be done at the request, and with the approval, of Scottish Ministers. 16 Every annual report of the Commission since devolution has expressed regret that successive Scottish Governments have not been able to commit the resources necessary to support such a programme. There has only been one consolidation since devolution and most of the work for that was done beforehand. 17 It is only at the end of last year that the Commission has begun work on consolidating the legislation relating to bankruptcy in Scotland, resources for which are being supplied by the Accountant in Bankruptcy. 18 In these circumstances, there is absolutely no evidence that consolidations have been inhibited because of the limited scope of the amendments which the Commission can recommend. Failure to have regular consolidations has meant that it is almost impossible to find the up-to-date state of the law in virtually all legislative areas. 19 This was not meant to happen. One of the arguments for devolution was to provide a greater legislative opportunity to bring our statute law up-to-date. This has simply not happened. The position is now worse than before devolution. It is suggested that there should be a long-term objective to consolidate the main areas of legislation every ten years and that, to achieve this, the Bill should provide: that the Scottish Law Commission should be required, after consultation with Scottish Ministers, to prepare a programme for consolidation and to prepare at least two or three draft Bills a year from that programme. The Government should be required to assist the Commission in the preparation of those Bills; and that, within two months of the submission of the Commission report containing the draft Bill, the Government should be required to introduce the Bill or, if not, to give reasons why. If the Government does not introduce the Bill, the Standing Orders should permit the subject Committee or any MSP to do so without any further procedure. 20 It is only in the context of such provisions that consideration should be given to the suggested new power in section 47. In other words, this new power should only be considered if the Government is prepared to enter into such a commitment. D. IMPLEMENTATION OF SCOTTISH LAW COMMISSION REPORTS The number of Commission reports which have not been implemented has risen significantly since devolution. The Chairman of the Commission has recently pointed to [t]he danger... that Scots law will fall behind the rest of the world s legal systems 16 Law Commissions Act 1965 s 3(1)(d). 17 The Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act See Scottish Law Commission, Annual Report 2008 (Scot Law Com No 214) 8, The Statute Law Database ( which provides an online database of statute law in the UK, is of considerable assistance, but it is incomplete and not completely up-to-date. In any event, it is no substitute for a proper consolidation. 20 Such as the consultation required for Members Bills by rule of the Parliament s Standing Orders.

17 Vol analysis 493 in responding to the challenges of an era marked by rapid technological and economic change. 21 Again, this was not meant to happen. On the contrary, it was hoped that devolution would lead to a renaissance of law reform in Scotland. What can be done to increase the rate of implementation of these reports? It is suggested that the Bill should provide something similar to what is proposed above for consolidation Bills. In other words, the Bill should provide that, within two months of the submission of a Commission report, Scottish Ministers should be required to make a statement to Parliament as to when it proposes to introduce a Bill to implement the report in full or to give reasons as to why the report is not to be implemented. If the Government does not propose to introduce such a Bill immediately, it is hoped that the Parliament might also consider it appropriate to amend the Standing Orders to permit the subject Committee or any MSP to so do so without requiring any further procedure or consultation. It is also hoped that the Parliament might consider it appropriate to amend its Standing Orders to permit some form of expedited procedure for Bills which implement Commission Reports similar to that for consolidation Bills. Iain Jamieson EdinLR Vol 13 pp DOI: /E Legislating the Duty of Disclosure A relatively recent development in Scots criminal procedure is the recognition of the Crown s duty to disclose certain parts of its evidence to the defence. 1 The scope of this duty has been contentious, resulting in a number of appeals reaching the Privy Council. 2 To date, the most important of these are Holland v HM Advocate 3 and Sinclair v HM Advocate, 4 which were heard together. The duty recognised in both was the same: the Crown must disclose material evidence to the defence. This was defined as any evidence which would tend to undermine the prosecution s case or to assist the case for the defence See Scottish Law Commission, Annual Report 2008 (n 18) 5. 1 Duff argues that it would have been virtually meaningless to speak of such a duty before McLeod, Petitioner 1998 JC 67: P Duff, Sinclair and Holland: a revolution in disclosure 2005 SLT (News) 105 at 105. A defence submission that a duty of disclosure existed was described as impertinent in Higgins v HM Advocate 1990 SCCR 268 at 269 per Lord Cowie. 2 See, most recently, McDonald v HM Advocate [2008] UKPC 46, 2008 SLT [2005] UKPC D1, SC (PC) 3. 4 [2005] UKPC D2, SC (PC) Sinclair at para 33 per Lord Hope of Craighead.