A decision just issued by the Inner House of the Court of Session in Scotland:

 

Docherty (+ others) v Scottish Ministers    

 

In earlier litigation (Somerville v Scottish Ministers,  (2008) SC (HL) 45, similarly concerning treatment of prisoners which contravened the European Convention on Human Rights) the UK Supreme Court had held that the 1-year time bar on judicial review claims under the Human Rights Act 1998 did not apply to claims founded instead on the Scotland Act 1998 

(which established the Scots devolved administration).  Docherty is, not jud rev (Scots law does not require that procedure to be used for public law-type claims), but procedurally an ordinary action for damages.  The court has held that, in public law-type damages claims against the Scottish Government,  the normal (non-HRA) statutory limitation period (5 years) does not apply either.  In Docherty, the events occurred in 2000 and the claims were raised in 2006.

 

The actual decision is of limited importance since future such cases would usually be covered by the statutory extension (2009), in the wake of Somerville, of the 1 year time bar to cover them.  But the judgment contains extended discussion of the juridical nature of such damages claims, comparing / contrasting the Scots position with that in England; the public / private law divide; and also statutory interpretation, the core issue being whether the drafters of the relevant (1973) legislation intended "obligation arising from liability... to make reparation" to extend to cover public law claims such as in Somerville or Docherty under the Scotland Act 1998 (the court considers that they did not).

 

Ross Macdonald  (School of Law, University of Dundee)

 

 

 

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