Clancy v Caird [2000] ScotCS 96 (4 April 2000)

Clancy v Caird [2000] ScotCS 96 (4 April 2000)

The Court held that the statutory framework for temporary judges in the Court of Session provides sufficient security of tenure and safeguards to meet the requirements of independence and impartiality under Article 6.1 ECHR. There is no express or implied power for the executive to terminate a temporary judge's commission at will, and the rules of declinature and the judicial oath provide adequate protection against conflicts of interest. In the context of a private dispute between individuals, there is no real risk of bias or lack of independence. The pursuer's challenge to the competence of the temporary judge fails, and the case is remitted to the temporary judge for decision.

Citation
[2000] ScotCS 96
Parties
Pursuer: Paul Clancy; Defender: Robin Dempsey Caird; Intervener: Lord Advocate, McCreadie
Jurisdiction
Scotland
Judgment Date
04 April 2000
Procedural Posture
Civil (breach of Contract, Damages) / Inner House, Court of Session, Report on Devolution Issue Prior to Judgment by Temporary Judge
Outcome
Challenge to the competence of the temporary judge rejected; case remitted to the temporary judge for decision.
Legal Topics
Judicial Independence, Article 6 ECHR, Temporary Judges, Devolution Issues, Waiver of Rights, Security of Tenure, Impartiality, Breach of Contract, Misrepresentation
Constitutional Law Human Rights Law Civil Procedure Contract Law Judicial Independence Article 6 ECHR Temporary Judges Devolution Issues +5 more

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Parties

Paul Clancy

Pursuer

Robin Dempsey Caird

Defender

Lord Advocate, McCreadie

Intervener

Procedural Posture

Civil (breach of Contract, Damages) / Inner House, Court of Session, Report on Devolution Issue Prior to Judgment by Temporary Judge

Legal Issues

  1. 1 Whether the appointment and use of a temporary judge in the Court of Session breaches Article 6.1 of the European Convention on Human Rights (right to an independent and impartial tribunal)
  2. 2 Whether a devolution issue arises under the Scotland Act 1998 in respect of the use of temporary judges
  3. 3 Whether the pursuer has waived his right to object to the temporary judge after the hearing has concluded

Ratio Decidendi

The Court held that the statutory framework for temporary judges in the Court of Session provides sufficient security of tenure and safeguards to meet the requirements of independence and impartiality under Article 6.1 ECHR. There is no express or implied power for the executive to terminate a temporary judge's commission at will, and the rules of declinature and the judicial oath provide adequate protection against conflicts of interest. In the context of a private dispute between individuals, there is no real risk of bias or lack of independence. The pursuer's challenge to the competence of the temporary judge fails, and the case is remitted to the temporary judge for decision.

Court Disposition

Challenge to the competence of the temporary judge rejected; case remitted to the temporary judge for decision.

Orders

  • Remit the case back to the temporary judge (Mr. T.G. Coutts, Q.C.) to issue his decision.