Anwar v The Advocate General for Scotland

This case addresses whether Scottish courts can grant interim protective orders (arrestment or inhibition on the dependence) to secure monetary claims pursued in the Employment Tribunal and whether requiring a separate court action to obtain such measures is compatible with EU law principles of effectiveness and equivalence as applied to the Equality Directives (Council Directives 2000/43/EC, 2000/78/EC and 2006/54/EC). The Supreme Court held that the Court of Session and the sheriff court possess an ancillary jurisdiction, established at common law and retained alongside the statutory regime in Part 1A of the Debtors (Scotland) Act 1987 (as amended), to grant diligence on the dependence in an ancillary action brought to provide interim security for a claim in another forum such as an employment tribunal. The court further held that the requirement for a claimant to raise a separate action in the sheriff court to obtain such diligence does not render enforcement of EU-derived rights practically impossible or excessively difficult and therefore does not breach the EU law principle of effectiveness or the principle of equivalence. The appeal was dismissed.

Background and parties:

• The appellant, Ms Anwar, pursued harassment claims in the Employment Tribunal (sex, race and religion) under section 26 of the Equality Act 2010 and obtained an award of £74,647.96. She alleged dissipation of her former employer’s funds and sought damages from the UK Government for failing to implement the Equality Directives by not providing an interim remedy in the Employment Tribunal equivalent to arrestment on the dependence in Scotland.

Procedural history: The Lord Ordinary (Lord Tyre) refused judicial review ([2018] CSOH 54). The First Division of the Court of Session (Lord Drummond Young majority; Lord Carloway dissenting) upheld that decision ([2019] CSIH 43; 2020 SC 95). The Supreme Court heard the appeal and dismissed it.

Nature of the claim / relief sought:

• Declarator that the failure to make provision for arrestment on the dependence as part of Employment Tribunal procedure in Scotland was unlawful and damages for that failure. Broadly, the claim was that the absence of an ability to obtain arrestment via the employment tribunal (a "one stop shop") breached the EU principles of effectiveness and equivalence and the state’s duties under the Equality Directives and related EU law.

Issues framed:

1. Whether the Court of Session or sheriff court has power to grant a warrant for arrestment or inhibition on the dependence in support of proceedings in the Employment Tribunal (ancillary jurisdiction).
2. If competent, whether the requirement to bring separate court proceedings constitutes a breach of EU law principles of effectiveness/effective judicial protection.
3. If not competent, whether the absence of such power constitutes a breach of EU law. (The third issue fell away once the court found the ancillary jurisdiction existed.)

Reasoning and analysis:

• The court examined historic authority (notably Hawkins v Wedderburn and Fordyce v Bridges) and subsequent Scottish jurisprudence and concluded that Scottish courts have long recognised an ancillary jurisdiction to grant diligence on the dependence to secure claims pursued in other fora, including arbitration and foreign proceedings. Part 1A of the Debtors (Scotland) Act 1987 (sections 15A, 15C, 15D, 15E, 15F, 15M) did not abolish that ancillary jurisdiction; instead it regulates procedure and sets statutory tests which an applicant must satisfy.
• On EU law, the court accepted that interim measures are required to secure effective judicial protection of rights under the Equality Directives (citing Impact, Factortame (No 2) and Križan). However, the Supreme Court rejected the submission that EU law requires a single forum (a "one stop shop") to combine merits determination and interim security: member states may provide interim measures through the ordinary courts rather than mandating their availability within a specialised tribunal, provided the domestic rules do not make enforcement of EU-derived rights practically impossible or excessively difficult.
• Applying the established "practically impossible or excessively difficult" test (as explained in Impact and subsequent authority) and having regard to the statutory safeguards and the proportionality of the requirement, the court concluded that the requirement to obtain diligence via a separate sheriff court action did not breach the principles of effectiveness or equivalence. The court took account of the intrusive nature of arrestment/inhibition, the statutory safeguards introduced after Karl Construction (section 169 of the Bankruptcy and Diligence etc (Scotland) Act 2007 and Part 1A), the availability of alternative remedies, and the modest additional costs and procedures involved compared with the totality of remedies available.

Context and implications: The court noted evidence (through the EHRC intervention) about enforcement difficulties in practice but found that those systemic problems did not demonstrate that the ancillary jurisdiction and the requirement to litigate in the sheriff court rendered EU rights ineffective in law. The remedies sought by the appellant (a declarator and damages for failure to provide an arrestment procedure within the Employment Tribunal) were not established.

Appeal dismissed. The Court held (i) the Court of Session and the sheriff court have an ancillary jurisdiction, supported by historic authority and preserved alongside Part 1A of the Debtors (Scotland) Act 1987, to grant arrestment or inhibition on the dependence in an ancillary action brought to secure claims pursued in the Employment Tribunal; and (ii) requiring a claimant to apply to the ordinary courts for such interim protective measures does not render enforcement of rights under the Equality Directives practically impossible or excessively difficult and therefore does not breach EU principles of effectiveness or equivalence.

Appeal from the First Division of the Court of Session ([2019] CSIH 43; 2020 SC 95). Earlier petition for judicial review refused by the Lord Ordinary, Lord Tyre ([2018] CSOH 54).