Dear Ross;
Thanks very much for this interesting decision. I am currently in the US at Villanova trying to get my mind around the variety of ways that statutes create civil liability here, but this decision provides another interesting example of delineation questions even with the Anglo/Scots tradition.
At first glance a civil remedy created by a breach of an Act sounds as if it ought to fall squarely within the classic "breach of statutory duty" tort recognised for many years in both England and Scotland (though called a delict in Scotland, as I see Lord Hope in Majrowski v Guy's & St Thomas's NHS Trust said- see [55] in Docherty.) And hence it ought to be subject to a general limitation statute covering tort/delict actions.
But the reality is that the Scotland Act is not "just" another statute, but a constitutional enactment, and this in part seems to have driven the decision here to classify the civil liability created by a breach as sui generis in some way. Without having read the cases I was interested to see that the House of Lords (as it then was) started using the language of "a public law remedy" in R v HM Advocate in 2003 for something that is a civil action for damages or reparation brought by private individuals.
Clearly the decision in Docherty could in theory have gone either way- how many genetic changes are needed to turn something which started out as a dog into a cat? (See the great quote from Lord Bingham at [46], and its use at [53].) But I wonder whether the Court of Session may have been a bit too influenced by the quote from Glegg at [50]:
"Reparation is the pecuniary remedy afforded by law for loss caused by a wrong. By a wrong is meant a breach of a private and not a public duty: and private duty is understood to include any obligations fixed by law, and to exclude those created by agreement. In other words, wrong is distinguished from crime on the one hand, and breach of contract on the other."
When Glegg says that a "wrong" here is a "breach of a private and not a public duty", clearly he didn't have the Scotland Act in mind. It looks to me as though the word "public" here means exactly what he goes on to say it means in the second half of the quote: it would be "public" if it were a "crime". (After all, he says that a "private" duty includes "obligations fixed by law" which would include statutes in a BSD claim.) But it could be argued that the court here has taken this phrase "private and not public" and read into it the later meaning of "public law remedy" given by the House of Lords.

Regards
Neil



Neil Foster
Senior Lecturer
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

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>>> Donald Macdonald <d.r.macdonald@dundee.ac.uk> 02/09/11 2:06 PM >>>
A decision just issued by the Inner House of the Court of Session in Scotland:

http://www.scotcourts.gov.uk/opinions/2011CSIH58.html
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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