JUDGMENT
Ruddy (AP) (Appellant) v Chief Constable,
Strathclyde Police and another (Respondents)
(Scotland)
before
Lord Hope, Deputy President
Lady Hale
Lord Mance
Lord Kerr
Lord Reed
JUDGMENT GIVEN ON
28 November 2012
Heard on 29 October 2012
Appellant Respondent
W James Wolffe QC Rory Anderson QC
Kenny McBrearty Douglas Ross
(Instructed by Taylor &
Kelly)
(Instructed by Simpson &
Marwick and The Scottish
Government Legal
Directorate)
LORD HOPE (with whom Lady Hale, Lord Mance, Lord Kerr and Lord
Reed agree)
1. On 5 September 2004 the appellant Kevin Ruddy was arrested by two
officers of Tayside Police in execution of a warrant for his arrest and taken to
Perth police station. The following day he was taken by two officers of Strathclyde
Police by car from Perth police station to Partick police station in Glasgow. He
alleges that he was abused, threatened with violence and assaulted by the
Strathclyde police officers before, during and after that journey as a result of which
he suffered injury. He decided to take proceedings against the Chief Constable of
Strathclyde Police for damages, and he applied for legal aid. His application for
civil legal aid was intimated to the Chief Constable in November 2004. Strathclyde
Police treated this intimation as a complaint and remitted the matter to its
Complaints and Discipline Branch (“the Complaints Branch”). In December 2004
the Complaints Branch reported receipt of the complaint to the Procurator Fiscal
for Glasgow.
2. On 10 January 2005 the Procurator Fiscal instructed the Complaints Branch
to carry out an investigation into the complaint. On 13 January 2005 Inspector
Darroch of the Complaints Branch was appointed to carry out the investigation. On
14 March 2005, having completed his investigation, he submitted his report to the
Procurator Fiscal. On 10 May 2005 the appellant was interviewed by staff from the
Procurator Fiscal’s office and he was precognosced. On 6 June 2005, having
considered Inspector Darroch’s report and a medical report which had been
instructed by the appellant’s solicitor, the Procurator Fiscal wrote to the appellant
to inform him that she was satisfied that the available evidence did not justify
criminal proceedings against any police officer. The Complaints Branch then
reviewed the complaint. By letter dated 22 June 2005 the Chief Superintendent of
the Complaints Branch wrote to the appellant to inform him that Strathclyde Police
did not consider it necessary to take any proceedings for misconduct against the
police officers.
The proceedings
3. In August 2005 the appellant commenced proceedings in the Sheriff Court
at Glasgow in which he sought an award of damages. Two separate craves were set
out in the initial writ. First, there was a claim of damages against the Chief
Constable of Strathclyde Police. This award was sought at common law for loss,
injury and damage alleged to have suffered as a result of the actings of the police
officers and as just satisfaction under section 8(3) of the Human Rights Act 1998
Page 2
for a breach of the appellant’s rights under article 3 of the European Convention on
Human Rights, for both of which the Chief Constable was said to be vicariously
liable. Second, there was a claim of damages against the Chief Constable and the
Lord Advocate jointly and severally. This award was sought as just satisfaction
under section 8(3) of the Human Rights Act 1998 and section 100(3) of the
Scotland Act 1998 for a breach of the appellant’s right under article 3 of the
Convention to an effective investigation into his complaint.
4. The Chief Constable and the Lord Advocate (“the respondents”) lodged
answers to the initial writ in which they took pleas to the relevancy of the
averments that were made against them. They did not challenge the competency
of the action. On various dates between November 2006 and April 2007 the sheriff
heard a debate in which the respondents argued that the claim that was made
against them for breach of the procedural obligation under article 3 of the
Convention was irrelevant. On 5 June 2007 the sheriff held that this claim was
irrelevant, refused to allow the second crave to go to proof so far as it was directed
against the Chief Constable and dismissed the action so far as it was directed
against the Lord Advocate. The appellant appealed to the Sheriff Principal. On 25
April 2008 the Sheriff Principal refused the appeal. In the course of the hearing of
the appeal the appellant was given leave to amend his pleadings so as to direct the
second crave against the respondents severally rather than jointly and severally.
5. The appellant then appealed to the Inner House of the Court of Session. A
hearing was set down for 7, 8 and 9 December 2010. When the case called before
an Extra Division (Lady Paton, Lord Clarke and Lord Abernethy) on 7 December
2010 the court informed counsel that it seemed to it, having considered the papers
before the hearing, that the case raised fundamental questions of competency. It
was suggested that, while it was competent to bring a claim for damages at
common law in the sheriff court, the second crave was a distinct and separate
claim which raised questions of administrative law that would require to be made
the subject of judicial review in the Court of Session. The court adjourned the
hearing to 2.00 pm to allow counsel to consider this issue. Having heard argument
on the point, it discharged the remainder of the appeal hearing and made
avizandum.
6. At advising on 2 March 2011 the Extra Division issued an opinion which
had been prepared by Lord Clarke in which he dealt with the point that had been
raised at the hearing on 7 December 2010: [2011] CSIH 16, 2011 SC 527. He said
that, on further consideration, the problems appeared to the court to be even
greater than had been discussed at that hearing and then set out the court’s reasons
for holding on other grounds that the action as a whole was incompetent. As
indicated in para 16 of the opinion, the case was put out By Order on 8 March
2011 to allow the parties to make any representations that they wished to make
before the court pronounced any further interlocutor. Counsel for the appellant did
Page 3
not ask for time to make any representations. On the motion of the respondents the
court then pronounced an interlocutor dismissing the action. The appellant has now
appealed to this court.
The issues as to competency
7. The background to the issues raised by the appeal is provided by the
following comments that Lord Clarke made in para 5 of his opinion after he had
summarised the appellant’s pleadings:
“Any practitioner in the business of civil litigation might, when
faced with this omnibus approach to several claims in a single action,
query the appropriateness of this approach. He or she might reflect
that in a single sheriff court action a straightforward claim for
damages for assault finds itself coupled with (a) a claim for breach of
the substantive obligation under article 3 of the Convention and (b)
claims against two defenders ‘severally’ for breaches of the
obligation arising under the article as regards investigation and
inquiry. One action is being brought against two separate defenders
with three distinctive juristic bases of claim being made.”
8. The objections that the Extra Division took to the competency of the action,
on closer examination, were as follows. First, there was the point that was raised
with counsel at the hearing on 7 December 2010. At that stage it was directed to
the subject matter of the second crave, in which damages are claimed for a failure
to carry out an investigation which was compliant with article 3. Second, there was
the fact that the proceedings sought to address three distinct issues against two
separate defenders. This appears to have been a new point, as it had not been
discussed at the hearing on 7 December 2010.
9. The first objection was summarised by Lord Clarke in these words in para
6:
“What the appellant’s averments in articles 8, 9, 10 and 11 seek, in
substance, is to have reviewed the investigatory proceedings that
have been carried out so far, to have a finding that these proceedings
were incompatible in some way with article 3 of the Convention and
consequently that the appellant is entitled to damages for breach of
Convention rights, not because of any assault. That is quite simply a
separate and distinct claim in law from a claim based on common
law assault and deals with quite distinct subject-matter in fact and
Page 4
law. This claim, when properly analysed, involves an attack, in
administrative law, on administrative acts and decisions, namely the
administration of the complaints procedure in the instant case and
possibly also an attack on the adequacy or otherwise of established
procedures in general.”
He said that it raised questions which, normally at least, would require to be made
the subject of judicial review in the Court of Session. Returning to this point in
para 14, Lord Clarke indicated that this objection extended to the claim for just
satisfaction for breach of the substantive obligation under article 3 that was the
subject of the first crave as well that which was the subject of the second crave. He
said that the claims would require to be brought by way of judicial review. This
was because, once unshackled from the claim of damages for assault, the
appellant’s claims involving human rights questions required the procedures in
question to be reviewed and tested in accordance with administrative law
principles: Clyde and Edwards, Judicial Review (2000), para 8.16; Cocks v Thanet
District Council [1983] 2 AC 286.
10. The second point was summarised by Lord Clarke in these words in para
12:
“It is a well established principle of our law and procedure that
‘one pursuer cannot sue two or three defenders for separate causes of
action, and put into his summons a conclusion for a lump sum, and
then by means of putting in the words ‘jointly and severally, or
severally’, as the case may be, ask the court to split up this lump sum
of damages and give a several decree for what the court thinks
proper’
(Ellerman Lines Ltd v Clyde Navigation Trs 1909 SC 690, pp
691,692; see also Barr v Neilson (1868) 6 M 651; Maclaren, Court of
Session Practice, p 266; Thomson and Middleton, Manual of Court
of Session Practice, pp 56, 57, 65). The present proceedings seek to
address three distinct issues, distinguishable in fact and law, against
two separate defenders. Our system of pleading does not provide, nor
should it provide, for such an approach. To countenance such a
procedure would, among other things, fly in the face of the practice
in relation to conjunction of processes….This attempt at an
‘omnibus’ approach to pleading distinct causes of action against
different defenders in the same action also runs counter to the
approach of the court in relation to counterclaims.”
Page 5
What the appellant was seeking to do in these proceedings, he said, was to bring an
action against two defenders in a case of unconnected wrongs. This objection was
taken to the proceedings as a whole, the question being whether it was competent
for the appellant to raise in a single action a common law assault claim against the
Chief Constable and a procedural article 3 claim against the Chief Constable and
the Lord Advocate. It was a ground for dismissing the whole case as incompetent.
11. In para 15 Lord Clarke said that it seemed to the court that another problem
of competency was perhaps raised, which was this:
“can there be two distinct defenders in relation to alleged breaches of
the state’s obligations under article 3 of the Convention?”
As this matter had not been discussed at all the court expressed no concluded view
on it, but said it was an issue that might merit further consideration. This objection,
it seems, was to the fact that the procedural article 3 claim was the subject of a
crave directed against the Chief Constable and the Lord Advocate severally.
12. The issues that are raised by this appeal can therefore be summarised as
follows:
(1) Was it competent for the appellant to bring his claims for damages in
respect of the substantive article 3 claim and the procedural article 3 claim,
or either of them, by way of action or did he require to bring them, or either
of them, by way of judicial review?
(2) Was it competent for the appellant to raise the common law assault
claim and the substantive article 3 claim against the Chief Constable and the
procedural article 3 claim against the Chief Constable and the Lord
Advocate together in the same action?
Mr Anderson QC for the respondents did not seek to support the reasoning of the
Extra Division on the first issue. He said that he was in broad agreement with the
way the appellant presented his argument, but he drew attention to the way Lord
President Hamilton analysed the case in Docherty v Scottish Ministers [2011]
CSIH 58, 2012 SC 150, paras 19-20 which indicated that the court’s remarks on
this point did not form part of the reasoning which had led to the whole action
being dismissed. He did however seek to support the Extra Division’s conclusion
on the second issue, which was that the action as a whole as pled was incompetent.
Page 6
Discussion
13. This is a highly unusual case, not only because of the way the claims that
the appellant is seeking to make are presented in the pleadings but also because of
the way it was dealt with by the Extra Division. It is, of course, always open to the
court to raise question about the competency of proceedings that are brought
before it. And, as the Court of Session is to a large extent the master of its own
procedure, the Supreme Court will always be reluctant to interfere with the
judgment of the Inner House as to whether proceedings with which it has to deal
are competent. As in so many other matters, this court is guided by the practice of
the House of Lords before the appellate jurisdiction of the House was transferred
to it in October 2009. In Cowan & Sons v Duke of Buccleuch (1876) 4 R (HL) 14,
16 Lord Chancellor Cairns said:
“In matters of procedure and practice, and still more in matters of
discretion, and, above all, where the Judges of the Court below are
unanimous as to a matter of procedure and practice, the uniform
practice of your Lordships’ House has been not to differ from that
opinion unless your Lordships are perfectly satisfied that it is
founded upon erroneous principles.”
That remains true today, and nothing that I am about to say is intended in any way
to depart from it. Regrettably, however, it is clear that the test which he laid down
is entirely satisfied in this case.
(a) the first issue
14. It is clear from Lord Clarke’s opinion, and the narrative of events that the
court has been provided with by counsel, that the idea which first attracted the
Extra Division’s attention was that the subject matter of the second crave raised
issues that ought to have been the subject of proceedings by way of judicial review
in the Court of Session. As thinking on this point developed, however, the way the
objection was explained in para 14 of Lord Clarke’s opinion seems to have
extended to the human rights claim in the first crave as well. This is because he
referred, without distinguishing one crave from the other, to “the claims by the
appellant involving human rights questions”. In para 20 of Docherty v Scottish
Ministers Lord President Hamilton indicated that he found it difficult to accept that
this passage should be read as meaning that any claim whatsoever against a public
authority alleging an infringement of a Convention right must be brought in
Scotland by judicial review:
Page 7
“Such a process would be quite inept for certain proceedings, for
example, proceedings simply for damages for an infringement of
article 3 by reason of isolated physical torture by a public official for
whose actings the public authority was vicariously responsible. Such
proceedings could, and should, be initiated by action. They might be
so initiated in the sheriff court.”
I agree, but I do not think that these cautiously worded remarks can be said to
dispose entirely of the objection which seems to have been taken to the claim for
breach of the substantive obligation under article 3. The appellant’s claim relates
to a course of conduct, not an isolated act of physical torture.
15. The fallacy which undermines the Extra Division’s whole approach to this
issue, however, lies in its assumption that the appellant is seeking an exercise of
the court’s supervisory jurisdiction. That is not so. He is not asking for the review
or setting aside of any decision of the Chief Constable or the Lord Advocate. He is
not asking the court to control their actions in that way at all. His case in regard to
both craves is based on averments of things done or omitted to be done and actions
that were taken or not taken. The allegations are of completed acts or failures to
act. He is not seeking to have them corrected in order to provide a foundation for
his claim, nor does he need to do so. What he seeks is just satisfaction for the fact
that, on his averments, his article 3 Convention rights have been breached. The
essence of his claim is simply one of damages.
16. Lord Clarke referred in para 14 of his opinion to Cocks v Thanet District
Council [1983] 2 AC 286 where it was held that it would be contrary to public
policy and an abuse of process for a person to proceed by way of an ordinary
action to establish that a public authority’s decision had infringed rights that were
entitled to protection under public law. Where private rights depended on prior
public law decisions, they must ordinarily be litigated by judicial review. As Lord
Clarke saw it, the illegal nature of the respondents’ actings and decisions that was
alleged in this case had first to be established before any question could arise as to
whether the appellant was entitled to a remedy. That had to be done by judicial
review, not by an ordinary action in the sheriff court.
17. But, as Sedley LJ pointed out in Clark v University of Lincolnshire and
Humberside [2000] 1 WLR 1988, para 16, the ground has shifted considerably
since Cocks v Thanet District Council was decided. It was established soon
afterwards that the requirement for litigation by judicial review could not be a
universal rule: Wandsworth London Borough Council v Winder [1985] AC 461.
The fact that a claim that was based on a private right had a public law dimension
did not mean that it was an abuse of process to proceed by private action: Roy v
Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1
Page 8
AC 624. In para 17 of his judgment in Clark Sedley LJ endorsed the test which
was suggested in de Smith, Woolf & Jowell’s Judicial Review of Administrative
Action, 5th ed, (1995) that what should matter was whether the choice of procedure
was critical to the outcome. In D v Home Office [2005] EWCA Civ 38, [2006] 1
WLR 1003, para 105 Brooke LJ said that he had no doubt that, if the proceedings
in that case in which damages were claimed for false imprisonment in breach of
the claimants’ Convention rights were viable, they were properly brought as a
private law action.
18. English authority as to practice in this field must be approached with
caution, as the distinction between public and private law has never been regarded
as determining the scope of the supervisory jurisdiction of the Court of Session.
But the position that has now been reached in England is not difficult to apply in
the Scottish context. The sole purpose for which the supervisory jurisdiction of the
Court of Session may be exercised is to ensure that a person to whom a power has
been delegated or entrusted does not exceed or abuse that jurisdiction or fail to do
what it requires: West v Secretary of State for Scotland 1992 SC 385, 413. The
proceedings which the appellant has raised are not of that character. As Lord
President Hamilton said in Docherty v Scottish Ministers, para 20, the process of
judicial review would be quite inept for proceedings in which damages are claimed
for an isolated act of physical violence which was in breach of the article 3
Convention right. But the number of acts or incidents cannot sensibly make any
difference. Judicial review would be just as inept for a claim of damages for injury
and damage sustained as the result of a course of such conduct. On any view the
objection that appears to have been taken to the competency of the claim for just
satisfaction for breach of the substantive obligation under article 3 must be
regarded as misconceived.
19. The objection to the competency of the claim for just satisfaction for breach
of the procedural obligation which is the subject of the second crave is in no better
position. Here too the claim is in essence one of damages, and judicial review for
its determination would be just as inappropriate. The decisions of which the
appellant complains do not need to be reviewed and set aside in order to provide
him with a basis for his claim. His position can be compared with that of the
widow and daughter of James Dow Mitchell who was attacked and killed by his
next door neighbour. They brought proceedings against Glasgow City Council as
the local housing authority by way of an ordinary action in which they claimed
damages for negligence at common law and a judicial remedy under section 8(3)
of the Human Rights Act 1998 on the ground that, in failing to remove the
neighbour from his house next door despite a long history of aggressive behaviour
towards Mr Mitchell, the local authority had acted in a way that was incompatible
with Mr Mitchell’s right to life under article 2 of the Convention: Mitchell v
Glasgow City Council [2009] UKHL 11, 2009 SC (HL) 21.
Page 9
20. It was not suggested at any stage in that case that the claim that was brought
under section 8(3) of the Human Rights Act was incompetent. The facts of that
case are, of course, different. But, just as in this case, the complaint was of a
procedural failure to give effect to the Convention right. And, just as in this case
too, it was based on actions taken or not taken and things done or omitted to be
done. No orders were being sought to regulate the local authority’s conduct. There
was no need to bring the decisions complained of under judicial review to provide
a basis for the claim. The decision of the Inner House in Docherty v Scottish
Ministers to allow the pursuers’ claims for just satisfaction for an infringement of
their rights under articles 3 and 8 of the Convention to proceed by way of an
ordinary action in the sheriff court falls into the same pattern; see also C v
Advocate General for Scotland [2011] CSOH 124, 2012 SLT 103. I would
respectfully endorse the reasons which the Lord President gave in paras 22-24 for
rejecting the argument, which was prompted by the decision of the Extra Division
in this case, that the actions were incompetent.
21. For these reasons I would hold that, as the objection that was taken to the
competency of the second crave in this case was unsound in principle, it is open to
this court to differ from the Extra Division and reject the objection.
(b) the second issue
22. Lord Clarke began his examination of this issue by referring to the wellestablished principle that one pursuer cannot sue two or three defenders for
separate causes of action and put into his summons a conclusion for a lump sum:
Ellerman Lines Ltd v Clyde Navigation Trs 1909 SC 690, per Lord President
Dunedin at pp 691-692. As Maclaren, Court of Session Practice (1916), p 266 puts
it, where there is a single wrong it is competent for a pursuer to ask for a decree for
a lump sum against joint delinquents jointly and severally, but not where there are
separate wrongs. In Liquidators of the Western Bank of Scotland v Douglas (1860)
22 D 447 Lord Justice Clerk Inglis said at p 497 that, if defenders were sought to
be subjected in liability on separate and unconnected grounds inferring separate
individual liability, the proceeding would be so flagrant a violation of ordinary
practice that the summons must at once be dismissed. On the other hand, it is
commonplace to have a joint and several conclusion against two delinquents who
have both contributed to the loss and damage which the pursuer has suffered. That
is seen, for this purpose, as a single wrong. And joint and several liability may
follow where two different breaches of contract have produced a common result:
see Grunwald v Hughes 1965 SLT 209.
23. In Barr v Neilson (1868) 6 M 651 the pursuer raised an action against a
husband and his wife conjunctly and severally or severally for one sum by way of
damages in respect of two acts of slander, one by the wife, the other by the
Page 10
husband, on two different occasions. It was held that this was incompetent. Lord
President Inglis said at p 654 that it was out of the question that the two parties
could be made conjunctly and severally liable for two disconnected wrongs. Lord
Deas said at p 655 that he would not be disposed to understand Lord Justice Clerk
Inglis’s judgment in the Western Bank case to mean that it was not competent to
conclude in one summons against six different defenders for six different debts. In
that case the pursuers sought distinct sums against different individuals in respect
of the different periods of time during which the constitution of the board was
different, and the action was allowed to proceed. But it was clear, on looking at the
condescendence as explained by the issues in that case, that no joint liability was
concluded for in Barr v Neilson at all. In Ellerman Lines Ltd v Clyde Navigation
Trs, on the other hand, there was, as the Lord President said at p 692, a perfectly
good averment against the defenders as joint delinquents and it was held that the
action, in which an award of a single lump sum was being sought against them
both, was competent.
24. The principle is, as Lord Clarke said, well-established. But his opinion, in
which he said that the court was of the view that the action fell to be dismissed as
incompetent, was issued to the parties before they had had an opportunity to
address it on the point. This was unfortunate, as a careful examination of the
pleadings and the authorities would have shown that the principle has not been
breached.
25. This is not a case where separate defenders are being sought to be found
liable in a single lump sum. There are two craves in which the appellant is seeking
an award of damages. The first crave, which is based on averments of assault at
common law and a breach of the substantive obligation under article 3, is directed
against the Chief Constable only. The second crave, which is based on averments
that the procedural obligation under article 3 was breached, is directed against the
Chief Constable and the Lord Advocate. Before the Sheriff Principal the word
“severally” was substituted for the words “jointly and severally” in the crave as
originally drafted, but Mr Wolffe QC said that it was his intention to seek leave to
restore those words and I would proceed on the assumption that leave will be given
for this to be done. It is clear that the wrongs which are the subject of these two
craves are separate wrongs, committed at different times by different people. But
the appellant is not asking for a decree for the defenders to be found liable in a
single lump sum for these separate wrongs. This objection to the competency of
the action was misconceived, and it must be rejected.
26. Lord Clarke drew attention in para 15 to the fact that the procedural article
3 claim was the subject of a single crave directed against the Chief Constable and
the Lord Advocate severally. He suggested that this perhaps raised another issue
about competency. But, as the matter had not been discussed at all, he expressed
no concluded view on it. The point was not the subject of argument in this court
Page 11
either, so it would not be appropriate for me to make any comment on it. It is
sufficient for present purposes, however, to note that it was not for this reason that
the action was held to be incompetent.
27. It is, of course, the case that the appellant has combined two distinct claims,
founded on different grounds, in one single action. This raises a different point, to
which Lord Clarke referred in para 13 when he said that omnibus pleadings of the
sort sought to be applied in this case would defeat the ends of avoiding undue
complexity and keeping good order in litigation. If permitted, he said, they would
result in “litigation bedlam”.
28. It is possible to imagine cases where this objection could properly be taken.
For example, in Treadwell’s Drifters Inc v RCL Ltd 1996 SLT 1048 Lord Osborne
was faced with an action in which the pursuers were seeking different remedies
against four defenders on the one hand and a fifth defender on the other. Although
the claims arose from a common sequence of events, the grounds of action against
the defenders were different. One was the delict of passing off, and the other was
breach of contract. The procedure to be followed in an accounting under a passing
off claim was quite different from that for a claim of damages for breach of
contract: p 1059J-L. Lord Osborne was unable to see how the court could follow
these procedures in one action in a manner that was in accordance with the
requirements of justice, and he dismissed the action as incompetent: p 1060G-H.
29. On the other hand the court has permitted actions to proceed against two
defenders on separate grounds where considerations of convenience favour letting
it proceed to proof as a whole. In Yoker Housing Association Ltd v McGurn Logan
Duncan & Opfer 1998 SLT 1334 the pursuer sought damages in the same action
against a firm of architects and a firm of engineers when defects came to light in
works for which they had been responsible. They sued the architects for some of
those defects and the architects and engineers jointly and severally for the others.
Lord Maclean rejected the argument that, because the case against the architects
was based on one ground and the case that was made against them jointly and
severally was based on another, the action was incompetent.
30. In Toner v Kean Construction (Scotland) Ltd 2009 SLT 1038 an architect
raised an action against developers and a firm of architects subsequently employed
by them for breach of copyright in drawings that he had prepared for the
developers. His case against the developers was that they had breached his
copyright by constructing the development in accordance with his drawings. His
case against the architects was that they had, in breach of copyright, copied
substantial parts of drawings which he had prepared for the developers. Lord
Bannatyne rejected the plea that the action was incompetent. The two claims were
intimately connected, the respective cases were factually and legally interlinked,
Page 12
and it was manifestly convenient to have the case against the two defenders in the
same action. If there were to be two separate actions, that would be likely to lead
to injustice and manifest inconvenience: para 101.
31. Mr Anderson QC for the respondents submitted that the test that should be
applied was whether the two claims were so essentially different that they ought
not to be tried together. The subject matter of the first crave was in very small
compass, while the second crave raised separate and quite distinct issues.
Furthermore the Procurator Fiscal was involved in the second crave but not the
first. He accepted that convenience had a part to play in the assessment, but there
was more to it than that. Regard had to be had to the fundamental principle that
one action should not be brought for separate and unconnected wrongs. An
exacting approach was needed where, in such a case, there was more than one
defender. The court had to have regard to the fact that the Procurator Fiscal was
not involved in the first crave at all.
32. 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 court must, of course, seek to be fair to all
parties. It must take a pragmatic approach to the question whether the way the case
is presented is so complex and disconnected that, despite the opportunities that
exist for case management, it will not be possible to conduct the case in a way that
meets the requirements of justice. The same is true if a motion is made for two
actions to be heard together, or for two actions to be conjoined. Each case will
have to be looked at on its own facts. There is no absolute rule one way or the
other, so long as the rule which says that it is incompetent for a pursuer to ask for a
decree in a lump sum for separate wrongs is not broken. Rules of procedure
should, after all, be servants, not masters, in matters of this kind.
33. An examination of the pleadings in this case shows that the two claims,
although separate, are interconnected. The averments in articles 2 to 6 set out the
basis for the claim in the first crave. Articles 8 to 12 set out the basis for the claim
in the second crave. The basis for each claim is, in that respect, separate from each
other. But article 8 begins by referring to the subject matter of the appellant’s
complaint, which was his treatment by the Strathclyde constables, and in article 10
it is said that the acts and omissions of the Complaints Branch and the Procurator
Fiscal were incompatible with the appellant’s right to an investigation of his
complaint. It is plain that the case made in articles 8 to 12 cannot proceed to proof
without leading the appellant’s evidence about his treatment at the hands of the
Strathclyde constables. He will have to give evidence on that same matter too in
support of the first crave. It would be inconvenient, and quite possibly unjust, to
require him to give evidence about it twice over in two separate actions on two
separate occasions. The fact that the Procurator Fiscal is not concerned in the first
crave is not likely to lead to any practical difficulties of case management, and
Page 13
Page 14
certainly not to an injustice. Lord Clarke was right to refer in para 13 of his
opinion to the need to avoid undue complexity and to keep good order in litigation.
But the pleadings in this case are not unduly complex, and good order in litigation
favours the two claims being heard together. They are interconnected both in law
and in fact, and it would be in the interests of justice and more convenient for them
not to be separated.
34. For these reasons I would hold that, as the objection that was taken to the
competency of the action as a whole was not well founded, it is open to this court
to differ from the Extra Division on this issue too and reject the objection.
Conclusion
35. I would allow the appeal and recall the Extra Division’s interlocutor. As
there is no plea in law directed to this issue, I would find that the action is
competent. The case will be returned to the Inner House for a hearing of the appeal
against the Sheriff Principal’s interlocutor.
