Davidson v Scottish Ministers (No 3)

An Inner House judgment is appealable to the House of Lords without leave where it finally determines the whole merits of the particular cause in which it was pronounced. Finality depends on substance as well as form. The question is whether the case would have been decided in substance whichever way the interlocutor had been pronounced.

Related proceedings do not become one cause merely because they concern connected subject matter. Where a petition to the nobile officium is formally and substantively separate from judicial review proceedings, a final determination of that petition is appealable without leave. A respondent cannot use a cross-appeal to raise an issue arising only from the separate judicial review process.

A prisoner sought judicial review of detention conditions said to contravene article 3 of the European Convention. The Lord Ordinary held that section 21 of the Crown Proceedings Act 1947 prevented an order for specific performance against the Scottish Ministers. The Inner House adhered to that decision, reported at 2002 SC 205, and refused leave to appeal to the House of Lords.

The prisoner then petitioned the nobile officium, alleging apparent bias arising from Lord Hardie's participation in the earlier Inner House decisions. The Second Division set those decisions aside and directed a rehearing, but again refused leave to appeal. Its decision was reported at 2003 SC 103.

The Scottish Ministers appealed against the decision on apparent bias. The prisoner petitioned to dismiss their appeal because they had not obtained the Inner House's leave. The issue was whether the nobile officium petition formed part of the judicial review cause or was a separate cause finally determined by the Second Division.

1. The incidental petition was dismissed. The Appeal Committee, comprising Lord Bingham of Cornhill, Lord Hoffmann and Lord Hope of Craighead, held that the Scottish Ministers did not require the Inner House's leave to pursue their appeal.

2. In the Committee's considered opinion, the judicial review petition and the petition to the nobile officium were separate processes in both form and substance. They were presented under different provisions of the Rules of the Court of Session 1994, commenced in different Houses of the Court of Session and bore separate process numbers. The Lord Justice-Clerk had himself described the judicial review proceedings as the previous process.

3. The Committee applied the approach in Beattie v Corporation of Glasgow and Ross v Ross. For the purposes of section 40(1)(a) of the Court of Session Act 1988, finality turns on substance rather than form. The relevant question is whether the case would have been decided in substance whether the interlocutor had been pronounced as it was or in the opposite way.

4. On that test, the Second Division's interlocutor was a judgment on the whole merits of the nobile officium cause. If the petition had failed, it would have been dismissed. As it succeeded, its subject matter was exhausted when the earlier interlocutors were set aside and the reclaiming motion was sent for rehearing before a differently constituted Division. Nothing remained to be decided in the nobile officium process. Leave was therefore unnecessary under section 40(1)(a).

5. The Committee further held that the prisoner could not use a cross-appeal in the Ministers' appeal to raise the effect of section 21 of the Crown Proceedings Act 1947. The apparent-bias issue was self-contained, while the section 21 issue belonged to a separate process in which leave to appeal had been refused. Moreover, the setting aside of the earlier interlocutors meant that no valid Inner House judgment then existed in the judicial review proceedings from which an appeal could be taken.

1. House of Lords: The Appeal Committee dismissed the prisoner's incidental petition to dismiss the Scottish Ministers' appeal. It held that the decision reported at 2003 SC 103 finally determined a separate nobile officium cause and was appealable without the Inner House's leave.

2. Second Division of the Inner House: The court held that apparent bias vitiated the interlocutors of 18 and 20 December 2001. It set them aside, refused leave to appeal and directed that the reclaiming motion be reheard by a differently constituted Division: 2003 SC 103.

3. Extra Division of the Inner House: The court unanimously refused the prisoner's reclaiming motion and adhered to the Lord Ordinary's interlocutor: 2002 SC 205. It subsequently refused leave to appeal by a majority, Lord Weir dissenting.

4. Outer House: The Lord Ordinary refused interim relief, holding among other matters that section 21 of the Crown Proceedings Act 1947 prevented the requested order.