215.Section 117 sets out new provisions for appeals from the Court of Session to the UK Supreme Court by replacing section 40 of the Court of Session Act 1988 with new sections 40 and 40A. It will be competent to appeal against a judgment of the Court of Session to the Supreme Court, but only with the permission of the Inner House of the Court of Session or, failing such permission, with the permission of the Supreme Court.
216.Section 40 of the Court of Session Act 1988 provides that it is competent to appeal to the Supreme Court against certain types of judgments without requiring leave from the Inner House. The only restriction on those appeals is that the Supreme Court under Practice Direction 4 requires that the note of appeal must be signed by two Scottish Counsel who certify that the appeal is reasonable.
217.In addition to changing the process for appeals to the Supreme Court, in line with the overall approach in the Act the opportunity has been taken to update the language and modernise terminology (noting that section 40 was itself a consolidation of the Court of Session Acts of 1808 and 1925), where appropriate. The Supreme Court in the judgment of Apollo Engineering Limited (Appellant) v James Scott Limited (Respondent) (Scotland) [2013] UKSC 37(7) made some criticism of the language of section 40.
218.The main changes in terminology in the new section 40 are:
“cause” becomes “proceedings” – Lord Hope notes in the Apollo judgment that “cause” has a very wide meaning and is defined in Rules of Court as covering “any proceedings”;
“leave” becomes “permission” as that is the term that is used more widely now, for example section 288AA(5) of the 1995 Act and the Constitutional Reform Act 2005;
“judgment” and “interlocutory judgment” become “decision”. This reflects the fact that “an interlocutory judgment” is any judgment other than a final one and on that basis “decision” is clearer for the user;
“judgment on the whole merits” becomes “final judgment” as defined in new section 40(10). This is consistent with the definition of “final judgement” as in section 136(1) of the Act which in turn is drawn from the definition of “final judgement” in section 3 of the Sheriff Courts (Scotland) Act 1907; and
“dilatory defence” becomes “preliminary defence”. This is discussed in the Apollo judgment where Lord Hope notes that “preliminary defence” is more favoured nowadays. The term is defined in new section 40(10).
219.New section 40(1) provides that an appeal may be taken to the Supreme Court against the relevant types of case only with the permission of the Inner House of the Court of Session or, if the Inner House has refused permission, with the permission of the Supreme Court.
220.Subsection (2) lists the kinds of decisions that can be appealed with the permission of the Supreme Court (even though the Inner House has refused permission). These are intended to be the same categories of decision as are covered by the existing provisions in section 40(1)(a) and (2) (with the terminological changes mentioned above and with the addition of a decision in an exchequer cause). Exchequer causes are subject to special rules in the Court of Session Act 1988 (namely sections 3 and 21 to 23 which are unaffected by the Act). An example of an exchequer cause is an appeal from the Upper Tax Tribunal for Scotland to the Inner House of the Court of Session under section 36 of the Revenue Scotland and Tax Powers Act 2014. The reference to exchequer causes in new section 40(2)(b) effects a restatement without modification of section 24 of the 1988 Act, bringing all the relevant provisions into a single section. See also Massie v McCaig [2013] CSIH 37.(8)
221.Subsection (3) then sets out the rule for other cases. It provides that for those other cases the decision is appealable with the permission of the Inner House of the Court of Session. In other words, the Inner House is the gatekeeper alone.
222.Subsection (4) is intended to restate the second part of the old section 40(2). It sets out that the Supreme Court has the same powers as the Inner House had in relation to an appeal against an application under section 29 of the Court of Session Act 1988 to grant or refuse a new trial in any proceedings, including in particular the powers in section 29(3) of the 1988 Act (power to set aside the verdict in place of granting a new trial) and section 30(3) of the 1988 Act (power to grant a new trial restricted to the question of the amount of damages).
223.Subsections (5) and (6) are intended to restate the old section 40(3), namely that an appeal cannot be taken to the Supreme Court against a decision of a Lord Ordinary unless that decision has been reviewed by the Inner House.
224.Subsection (7) is intended to restate the old section 40(4), with the effect that once an appeal is taken to the Supreme Court all prior decisions, whether at first instance or at any stage of appeal, are opened up for review by the Supreme Court.
225.Subsection (8) restates the opening qualification that is expressed in the old section 40(1), namely that the procedure is subject to sections 27(5) and 32(5) of the Court of Session Act 1988 which make special provision for appeals to the Supreme Court and to provisions in any other enactment which restrict or exclude appeals from the Court of Session to the Supreme Court.
226.Under new section 40(9), the provisions do not affect any right of appeal from the Court of Session to the Supreme Court that arises other than under the new section 40 of the 1988 Act – whether statutory appeals or at common law (although the assumption is that all such appeals are statutory now). For example, paragraph 13 of Schedule 6 to the Scotland Act 1998 sets out a separate process in relation to civil devolution issue appeals which is unaffected by the Act.
227.New sections 40A(1) and (2) provide a time limit for applications for permission to appeal to the Supreme Court. Applications to the Inner House of the Court of Session must be made within 28 days of the date of the decision against which the appeal lies, or such longer period as the court considers equitable having regard to the circumstances. The application to the Supreme Court should be made within 28 days of the date on which the Inner House refused permission, or such longer period as the Supreme Court considers equitable having regard to the circumstances. The time limit is equivalent to the time limits provided for in relation to applications for permission to appeal compatibility issues (European Convention on Human Rights and European Union challenges) to the Supreme Court through section 288A(7) and (8) of the Criminal Procedure (Scotland) Act 1995.
228.New section 40A(3) sets out that the test that the Court is to apply when considering an application for leave is whether the appeal raises an arguable point of law of general public importance that ought to be considered by the Supreme Court at the time. This is in line with the comments made by Lord Reed in the case of Uprichard v Scottish Ministers [2013] UKSC 21.(9)