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27 June, 2016

Inner House refuses application for permission to appeal to the Supreme Court in cerebral palsy case

David Stephenson QC and Jamie Dawson of Ampersand recently represented Highland Health Board at a hearing at which the pursuers and reclaimers sought the Court’s permission to appeal to the Supreme Court. The application was made in terms of section 40(1)(a) of the Court of Session Act 1988. Section 40A(3) of the Act provides as follows:

“The Inner House or the Supreme Court may grant permission for an appeal under section 40(1) or (3) only if the Inner House or, as the case may be, the Supreme Court considers that the appeal raises an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time.”

On 22 June 2016, the Inner House of the Court of Session heard an application by the pursuers and reclaimers for permission to appeal to the Supreme Court in the case of Jacqueline MacLeod & Anr (for Rowan MacLeod) v Highland Health Board. The case was one in which the pursuers had sought damages for a brain injury to their daughter alleged to have been caused by the negligence of medical staff at Raigmore Hospital, Inverness around the time of her birth on 2 June 1999. A proof in the matter was heard by Lord Kinclaven who ruled in favour of the Board on 23 January 2014 [see here]. A 9 day reclaiming motion was heard before an Extra Division in which the reclaimers argued that the Lord Ordinary’s opinion was defective in various ways, including there being a lack of proper reasoning. The Extra Division’s opinion (delivered by Lord Brodie, dated 7 April 2016) [see here] found the Lord Ordinary’s opinion to have been deficient but determined that the sole disposal for which the reclaimers had contended (a re-hearing of the proof de novo) was neither a competent nor a necessary way of disposing of the case.

At the hearing for permission to appeal, it was argued for the reclaimers that the proposed appeal raised an arguable point of law of general public importance which ought to be considered by the Supreme Court at this time. It was argued that the case was important as it would give the Supreme Court the opportunity to consider the scope of the inherent jurisdiction of the Court of Session to regulate its own procedure and what constituted a fair trial in terms of Scots civil procedure. Lord Brodie (again in the chair) delivered an ex tempore decision of the court refusing permission to appeal.

As to whether the proposed appeal raised an arguable point of law, the court observed that the procedure contended for by the reclaimers (the fixing of a new proof) was entirely without precedent and would involve a departure from the invariable practice of the court since the early part of the 19th century. The reclaimers had had the opportunity to request a full review by the Extra Division on the transcripts but had decided not to avail themselves of that. The reclaimers had not demonstrated that it was impossible for the case to have been decided by the Extra Division in that way. The court accepted the respondents’ submission that in circumstances where it had not been said to have been necessary to embark on the innovative procedure for which the reclaimers contended, the basis for the assertion that the reclaimers had been denied a fair trial was undermined.

The court also did not accept that the case was one which was of general public importance which ought to be considered by the Supreme Court at this time. Again, the court accepted the respondents’ submission (based on the case of Ruddy v Chief Constable of Strathclyde Police [2012] UKSC 55, 2013 SC (UKSC) 126) that it is not the inclination of the Supreme Court to deal with cases where the point of appeal is restricted to a procedural issue, particularly where the procedural issue in question seems to be well settled in the courts below. The respondents’ submission was accepted that the principal responsibility for development of Court of Session procedure lay with the Court of Session.

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