DOCHERTY, PHILBIN AND LOGAN v SCOTTISH MINISTERS

The Court of Session has allowed the appeals against the Scottish Ministers in relation to actions taken in respect of damages sought for “slopping out” at Barlinnie Prison.

Lord Hamilton, Lord Wheatley & Lady Smith

Each of the pursuers in these actions was for a period held at Barlinnie Prison, Glasgow in conditions incompatible with his rights under Article 3 of the European Convention of Human Rights – in respect of “slopping out”.  Each subsequently raised an action against the Scottish Ministers in Glasgow Sheriff Court in which he sought “just satisfaction” (essentially damages) for that infringement.  The actions were in each case raised more than 5 years after the relative infringement had ceased.

In the sheriff court the Scottish Ministers successfully argued that the claims were barred because they had not been brought within 5 years of the cessation of the infringement.  The pursuers appealed that decision to the Court of Session.

At the outset of the hearing counsel for the Scottish Ministers invited the court to dismiss the actions on the basis that the pursuers had chosen the wrong form of process in which to pursue their claims.  It was suggested that a remedy of the kind sought could only be obtained by raising judicial review proceedings in the Court of Session.  Having heard parties, the court rejected that suggestion.

It then went on to hear argument as to whether the actions were time-barred.  It has now held that they were not – on the ground that the 5-year time-bar relied on does not apply to the claims advanced.  In particular, it has held that the “public law remedy” available under the Scotland Act to those who have suffered damage as a result of infringement of human rights by the Scottish Ministers is not caught by the statutory provision which imposes the time-bar on claims rested on an “obligation arising from liability to make reparation”. 

The appeals have accordingly been allowed.  These cases will be remitted to the sheriff to determine what just satisfaction each pursuer is entitled to.

The full Opinion is available here

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