Davidson v Scottish Ministers (No 3)

The committee considered whether an incidental petition to the nobile officium in the Inner House formed part of the same "cause" as an earlier petition for judicial review so as to attract the requirement in section 40(1) of the Court of Session Act 1988 that leave of the Inner House be obtained before an appeal to the House of Lords. The court held that the two processes were separate both in form and in substance and that the interlocutor of 11 September 2002 in the nobile officium petition was a judgment on the whole merits of that cause. Applying the test of finality in substance (as explained in Beattie v Corporation of Glasgow and Ross v Ross), the committee concluded that leave of the Inner House was not required for an appeal to the House of Lords against that interlocutor. The incidental petition by the petitioner seeking dismissal of the Scottish Ministers' appeal was therefore dismissed.

The petitioner, Scott Davidson, a remand prisoner, brought a petition for judicial review alleging that his detention conditions breached Article 3 of the European Convention on Human Rights and sought specific performance, interim relief and damages. Initial interim relief was refused by the Lord Ordinary. An Extra Division of the Inner House refused the petitioner's reclaiming motion (reported at 2002 SC 205). The petitioner then applied to the Inner House to the nobile officium alleging apparent bias affecting one of the Extra Division judges (Lord Hardie) and seeking to set aside the earlier interlocutors and to be granted leave to appeal to the House of Lords. The Second Division set aside the Extra Division interlocutors for apparent bias and refused the petitioner's application for leave to appeal to the House of Lords (reported at 2003 SC 103), ordering a rehearing of the reclaiming motion before a differently constituted Division.

The incidental petition before the Appellate Committee asked that the Scottish Ministers' petition of appeal to the House of Lords be dismissed on the ground that they had not obtained prior leave of the Inner House. The issues framed were (i) whether the nobile officium petition was part of the same "cause" as the earlier judicial review petition for the purposes of section 40(1) of the Court of Session Act 1988 and (ii) whether, if it was not, the interlocutor of 11 September 2002 was a judgment on the whole merits entitling the parties to appeal to the House of Lords without leave of the Inner House.

The committee analysed the formal differences between the two processes (they were presented under different rules of court and had distinct process numbers) and applied the "finality in substance" test drawn from Beattie v Corporation of Glasgow and Ross v Ross. It concluded that the nobile officium petition was a separate process and that the interlocutor of 11 September 2002 was final in substance. The committee therefore recommended dismissal of the incidental petition. The committee also clarified that the petitioner could not cross-appeal in the House of Lords on the interlocutory questions decided in the separate judicial review process.

The incidental petition was dismissed. The committee held that the nobile officium petition and the earlier judicial review petition were separate processes in both form and substance; the interlocutor of 11 September 2002 was a judgment on the whole merits of the nobile officium cause and therefore did not require the leave of the Inner House under section 40(1) of the Court of Session Act 1988 for an appeal to the House of Lords. Accordingly the petition to dismiss the Scottish Ministers' appeal was dismissed.

Lord Ordinary (Lord Johnston) refused interim relief (26 October 2001); Extra Division refused the reclaiming motion (29-30 October 2001) and decision reported 2002 SC 205; Extra Division (differently constituted) refused the petitioner's reclaiming motion and adhered to the Lord Ordinary on 18 December 2001; leave to appeal to the House of Lords was refused by the Extra Division (20 December 2001). The petitioner petitioned to the Inner House to the nobile officium; the Second Division set aside the Extra Division interlocutors for apparent bias and refused leave to appeal to the House of Lords (11 September 2002) (reported 2003 SC 103) and ordered a rehearing. The incidental petition was heard by the Appellate Committee of the House of Lords on 31 July 2003.