New Judgment: Apollo Engineering Ltd v James Scott Ltd [2013] UKSC 37
13 Thursday Jun 2013
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On appeal from: [2012] CSIH 88
This case concerned an aspect of the Supreme Court’s jurisdiction to hear appeals in Scottish civil cases. The appellant had challenged the validity of an order – the Inner House of the Court of Session dismissed the case and refused leave to appeal to the Supreme Court.
The Court of Session Act 1988, s 40 provides that it is competent to appeal from the Inner House to the Supreme Court against either: a judgment on the whole merits of the cause; an interlocutory judgment where there is a dissenting opinion; or an interlocutory judgment that sustains a dilatory defence and dismisses the action. In McGregor Ltd v Grampian Regional Council (1994) SLT 133 it was held that an opinion of a court in a stated case did not constitute a “judgment” within the meaning of s 40. In the present case, an opinion on the legal issues in the stated case had not been given.
The Supreme Court held that in the present case Apollo could competently appeal to the Court without the leave of the Inner House against the part of the order that dismissed the stated case, so long as the appeal raised a question that could be certified by counsel as reasonable. The Administration of Justice (Scotland) Act 1972 makes no provision for the course of action the Inner House took: dismissing the stated case without giving its opinion on the questions before it.
It would be more correct to regard (for the purposes of s 40) the order dismissing the action as a judgment on the whole merits of the case, even though the Inner House did not address the issues raised, as it was not easy to characterise the order as “sustaining a dilatory defence” as it gave effect to the respondent’s motion based on the appellant’s inability to fulfil the Court’s rules.
For judgment, please download: [2013] UKSC 37
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII
1 comment
Jonathan Mitchell QC said:
20/06/2013 at 16:05
Section 40 of the 1988 Act is not quite in those terms. The three categories of judgment described above as appealable (final/interlocutory with dissent/dismissal on a preliminary plea) are appealable without leave of any Court, on the certificate of two Scots counsel that the appeal is reasonable. Other judgments are appealable with leave of the Inner House; leave can only be sought from the Supreme Court in some cases under the Tribunals and Inquiries Act.
I appreciate this is all of rather peripheral concern to English readers, but in the past couple of years there has been one Scottish case in the Supreme Court in which two English counsel purported to certify a case as reasonable (Anderson v Shetland IC), and another where English counsel were instructed for the appellants in the Supreme Court and never sought leave as they should (I had acted for the other side and the case settled, so I won’t name it!), so the precise ambit of the right of appeal does matter. And this judgment is significant for its firm statement that the test for Scots counsel in so certifying is the same as the test the Court would apply on granting leave- visibly that has not always been adhered to in recent years.