Scottish Supreme Court Cases

The UK Supreme Court issued decisions in two Scottish cases yesterday, the 8 May 2014. In general terms, and subject to various exceptions, Scottish cases may be appealed from the Inner House of the Court of Session (for English readers, our equivalent to the Court of Appeal. However, an appeal should only be pursued if some matter of public interest, or legal principle is at stake.

One of the cases decided yesterday was A v BBC, and was an appeal against a decision of the Inner House. A was an asylum seeker whose application to remain in the UK failed before the Upper Tribunal. He subsequently sought judicial review of the Upper Tribunal decision in the Court of Session. It was argued that because of the nature of his application, to disclose his identity would result in harm to him in the country to which he potentially could be deported to (given the potential for outrage in relation to offences he had committed in the UK).  

The Court of Session allowed A to amend his Judicial Review application to withhold and delete his name and address. The court decided it had a common law power to do that. It also made an order in terms of s11 of the Contempt of Court Act 1981, prohibiting publication of his details. The BBC became aware of the orders and sought recall. This was refused. The BBC appealed to the Inner House.

The Inner House agreed with the judge at first instance that it was within the court’s power to make such orders. The BBC appealed again, this time to the Supreme Court.

Delivering an important unanimous decision for media and privacy law, on behalf of the Supreme Court, Lord Reed (one of the two Scottish justices) agreed that principles of open justice were vitally important. However, he traced the history of the exceptions to the rule and concluded that the Scottish Courts did have an inherent power to make the common law order, and that neither it, nor the s11 order were incompatible with ECHR rights; in circumstances where the BBC had the opportunity to be heard on the recall of the order. The BBC appeal was refused.

The full opinion of the court can be read at:

http://supremecourt.uk/decided-cases/docs/UKSC_2013_0159_Judgment.pdf

Following the Inner House decision, the Scottish Civil Justice Council carried out a consultation in relation to reporting restrictions. An analysis of the consultation can be seen here:

http://www.scottishciviljusticecouncil.gov.uk/news/2014/03/04/reporting-restrictions-consultation—analysis-of-responses

The second Scottish judgement issued yesterday, allowed an appeal in the case of L. Batley Pet Products Limited v North Lanarkshire Council.

This is an important case regarding the repairing standard in commercial leases. The Council were Batley’s sub-tenant. Following the expiry of the sub-lease, the council refused to remove their alterations. Batley said they were either entitled to be paid for removal of alterations originally consented to in a Minute of Agreement, or alternatively paid a sum for repairs under the Head Lease repairing standard (having intimated a schedule of delapadations).

The Council challenged the relevancy of Batley’s case on the basis that there was no written instruction to remove alterations or repair. At first instance the Lord Ordinary, having herd a debate on the legal issues arising from the pleadings decided that a relevant case had been plead and there should be a Proof before Answer (evidential hearing/trial leaving the legal issues standing meantime) on the issues. Her reasons for so allowing centred around her construing a clause in the Minute of Agreement as allowing a verbal request for alterations to be made, as opposed to insisting on a written notice (the Council’s position was that a verbal request by Batley’s surveyor was not enough).

The Inner House allowed an appeal by the Council, and Batley appealed to the Supreme Court. The second Scottish Justice, Lord Hodge, delivered another unanimous decision of the court, this time allowing the appeal.

He concluded that there was no obligation on Batley to give written notice. To construe the Minute of Agreement you had to look at it as a whole. Looking at the whole “factual matrix”, written notice was not required; Batley simply had to “require” the Council to do the work, in contrast to other provisions in the documentation that expressly required writing. He was also satisfied that there was a relevant contractual claim plead, with reference to the Lease, which would require to be assessed after evidence. He did accept that the Minute of Agreement for licensed works necessarily took precedence over the continuing repairing obligation in the Lease (which did not require any notice to start the obligation; it was there the whole time in the lease). It was a separate contract with separate obligations.

Anyone with an interest in contractual interpretation and commercial leasing should read the decision:

http://supremecourt.uk/decided-cases/docs/UKSC_2012_0276_Judgment.pdf

BBM’s litigation team specialise in complex litigations, and have experience of dealing with cases both in the Court of Session and the Supreme Court. Contact: Eric Baijal: emb [AT] bbmsolicitors [DOT] co [DOT] uk