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This case considers the proper procedure which should be adopted under Scots law for bringing a claim for damages where there has been an alleged infringement of the ECHR. The Supreme Court’s judgment also offers clarification on the more general civil procedure principle of avoiding undue complexity and keeping good order in litigation.

Due to its human rights elements, the case has echoes of the Supreme Court judgments that over the past few years have ignited a vigorous debate over the Court’s effect on the sovereignty of the Scottish legal system (see for example Fraser v Her Majesty’s Advocate (Scotland) [2011] UKSC 24). However, it seems unlikely this case will add further fuel to that debate.

Background

In September 2006 Mr Kevin Ruddy, who was under arrest at the time, was transferred by car from Perth Police Station to Partick Police Station in Glasgow. Mr Ruddy alleges that before, during and after that journey he was abused, threatened with violence and assaulted by the two Strathclyde police officers who were escorting him.

After the Procurator Fiscal chose not to pursue criminal proceedings and Strathclyde Police’s Complaints Branch chose not to open misconduct proceedings against the two police officers, Mr Ruddy raised an action in Glasgow Sheriff Court seeking:

  1. Damages against the Chief Constable of Strathclyde Police at common law and for a breach of the substantive obligation under Article 3 of the ECHR (for the alleged assault itself);
  2. Damages against the Chief Constable and the Lord Advocate jointly and severally for a breach of the procedural obligation under Article 3 (for an alleged failure to carry out an effective investigation into the alleged assault).

The Sheriff agreed with the Chief Constable and the Lord Advocate that the second claim (point 2 above) was irrelevant. On appeal the Sherriff Principal agreed and dismissed Mr Ruddy’s appeal.

An appeal to the Inner House of the Court of Session was made. During the hearing the issue of competency of the action quickly became a point of contention and, after discharging the remainder of the hearing, the Extra Division gave an opinion to the effect that the action as a whole was entirely incompetent. Latterly, the action was dismissed and then appealed to the Supreme Court.

On 28th November 2012 the unanimous judgment of the Supreme Court, written by Lord Hope of Craighead, was given.

The Supreme Court’s Judgment

After reciting the facts and appellate history of the case, Lord Hope started the legal discussion by elucidating the longstanding principle that the Supreme Court will only interfere with the procedure of lower courts if they are founded on erroneous principles: see Cowan & Sons v Duke of Buccleuch(1876) 4 R (HL) 14, 16. His Lordship did not leave the reader waiting long to discover whether this strenuous test was met in the case at hand, noting that “regrettably” the Cowan & Sons test was “entirely satisfied” by the interpretation of procedure endorsed by the Extra Division in the judgment on appeal.

Firstly, Lord Hope dealt with the Extra Division’s characterisation of Mr Ruddy’s human rights claims as amenable to judicial review rather than the normal procedure for damages claims. His Lordship held that conflating a human rights claim against a public body with seeking the Court of Session’s supervisory jurisdiction was a “fallacy”. Mr Ruddy was alleging that the public authorities in question had acted wrongly or had failed to act appropriately and was seeking satisfaction by way of damages. He was not asking for Strathclyde Police’s internal investigation or the Procurator Fiscal’s decision not to prosecute to be reviewed. As such, a judicial review procedure would be inappropriate.

Secondly, the prohibition on concluding for a lump sum when suing two or more defenders for separate causes of action was considered. It is well established that demanding such a decree is incompetent as making defenders jointly liable for separate loss or damage would be unjust: see Ellerman Lines Ltd v Clyde Navigation Trs 1909 SC 690; Liquidators of the Western Bank of Scotland v Douglas (1860) 22 D 447. Lord Hope held that, while the two wrongs for which Mr Ruddy was seeking damages were separate and committed by different people, the appellant was not asking for the Chief Constable and the Lord Advocate to be held liable in a single lump sum for these separate wrongs. As such, any objection on this ground to the competency of Mr Ruddy’s action was wrong.

Finally, Lord Hope dealt with the more general issue of avoiding undue complexity and keeping good order in litigation. In the Extra Division’s judgment, Lord Clarke suggested that allowing the appellant to combine distinct claims, with different juridical bases, in a single action would lead to “litigation bedlam”. Lord Hope held that the true test for such objections was rather more flexible than had been suggested by the Extra Division:

“The guiding principle, where an objection to competency is taken on these grounds, is whether the way the action is framed is likely to lead to manifest inconvenience and injustice.”

The judgment emphasises the pragmatic nature of this test, the application of which should be aimed at achieving fairness for all parties on a case-by-case basis as long as long as the strict rule against demanding a lump sum for separate claims against two or more defenders is not contravened. By way of illustration, his Lordship referred to previous Court of Session cases where it had been held that considerations of convenience validated combining claims against distinct defenders based on different legal bases in a single case: see Yoker Housing Association v McGurn Logan Duncan &Opfer SLT 1334; Toner v Kean Construction (Scotland) Ltd 2009 SLT 1038. A key consideration seems to be the legal and factual interconnectedness of the claims. This is unsurprising given the high degree of convenience evidently offered by combined litigation if there is a high degree of such interlinking between the claims.

In Mr Ruddy’s case, Lord Hope held that, inter alia, the closely legally and factually connected nature of the claims (indeed proof of each claim will require the same evidence) that it is in the interests of justice and more convenient for the two claims not to be separated.

Comment

The Supreme Court used this judgment to clarify some areas of Scots civil procedure in need of authoritative interpretation.

The idea that any claim against a Scottish public authority with a human rights element must be brought by judicial review had already been discredited by the Court of Session itself (see Docherty v Scottish Ministers [2011] CSIH 58). However, Lord Hope’s judgment now makes it clear that respondents will not be able to scupper claims for damages with a human rights element through competency challenges.

Lord Hope’s above quoted dicta regarding avoiding undue complexity and keeping good order in litigation neatly and accurately encapsulates the previous case law. It will undoubtedly be oft quoted by future students, practitioners and judges when they are crafting their thoughts, pleadings and judgments on this issue.

The Court’s judgments on Scottish appeals have, in recent years, been liable to stir political controversy in Edinburgh. Civil procedure, however, may not provide such a controversial topic, and the facts of this particular case will likely not give easy sound bites for nationalist politicians. As such, readers of the UKSC Blog may need to wait until the New Year for the next Supreme Court/Scottish Government tête-à-tête.