Docherty & Ors v. The Scottish Ministers [2011] ScotCS CSIH_58 (02 September 2011)

Docherty & Ors v. The Scottish Ministers [2011] ScotCS CSIH_58 (02 September 2011)

Claims for damages under section 100 of the Scotland Act 1998 for breach of Convention rights are not subject to the five-year negative prescription in section 6 and Schedule 1, paragraph 1(d) of the Prescription and Limitation (Scotland) Act 1973 because such damages are discretionary public law remedies, not obligations to make reparation for private law wrongs. Such claims may competently be brought by ordinary action in the sheriff court and do not require judicial review. Declarators of breach may be granted where necessary for just satisfaction, even if breach is admitted.

Citation
[2011] ScotCS CSIH_58
Parties
Pursuer and Appellant: Stuart Docherty; Pursuer and Appellant: James Philbin; Pursuer and Appellant: Paul Logan; Defenders and Respondents: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
02 September 2011
Procedural Posture
Appeal (civil) / Inner House, Court of Session, Post Sheriff Court Dismissal of Damages Claim, Cross Appeal on Declarator
Outcome
Appeal allowed; cross-appeal refused
Legal Topics
Prescription and Limitation of Actions, Damages for Breach of Convention Rights, Judicial Review Vs Ordinary Action, Public Law Remedies, Article 3 ECHR, Scotland Act 1998, Prescription and Limitation (scotland) Act 1973
Constitutional Law Human Rights Law Civil Procedure Scots Law Prescription and Limitation of Actions Damages for Breach of Convention Rights Judicial Review Vs Ordinary Action Public Law Remedies +3 more

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Parties

Stuart Docherty

Pursuer and Appellant

James Philbin

Pursuer and Appellant

Paul Logan

Pursuer and Appellant

The Scottish Ministers

Defenders and Respondents

Procedural Posture

Appeal (civil) / Inner House, Court of Session, Post Sheriff Court Dismissal of Damages Claim, Cross Appeal on Declarator

Legal Issues

  1. 1 Whether claims for damages under section 100 of the Scotland Act 1998 for breach of Convention rights are subject to the five-year negative prescription under section 6 and Schedule 1, paragraph 1(d) of the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether such claims must be brought by judicial review or may competently be brought by ordinary action in the sheriff court
  3. 3 Whether declarators of breach are necessary where breach is admitted and damages are time-barred

Ratio Decidendi

Claims for damages under section 100 of the Scotland Act 1998 for breach of Convention rights are not subject to the five-year negative prescription in section 6 and Schedule 1, paragraph 1(d) of the Prescription and Limitation (Scotland) Act 1973 because such damages are discretionary public law remedies, not obligations to make reparation for private law wrongs. Such claims may competently be brought by ordinary action in the sheriff court and do not require judicial review. Declarators of breach may be granted where necessary for just satisfaction, even if breach is admitted.

Court Disposition

Appeal allowed; cross-appeal refused

Orders

  • Sheriff's decision on prescription reversed
  • Cases remitted to sheriff to proceed as accords