(155)  Human rights and diligence on the dependence

Lord Drummond Young held on 14 January 2002 that the diligence of inhibition on the dependence was disproportionate and incompatible with Article 1 of the First Protocol of the European Convention on Human Rights (Karl Construction Ltd v Palisade Properties plc 2002 GWD 7-212; 2002 SLT 312). The judge briefly discusses the horizontal effect of the Human Rights Act 1998, referring to the writings of Sir William Wade on the subject, and observes (para 76):

 The question thus arises as to how far the courts are bound by the Convention in common law matters.  In my opinion the applicability of the Convention must extend at least to what may be described as the ‘internal’ processes of the court, as against the rights that individuals and other private legal persons have against one another as a matter of substantive law.  These ‘internal’ processes include the procedures that the court follows and, crucially, the remedies that the court makes available.  I reach this conclusion because these are matters that involve the court’s own processes.  The statement in s 6(3)(a) that a court is a public authority must have some content, and the minimum content that can be given is in my opinion the subjection of the court’s procedures and remedies to the Convention. (2002 SLT at 330)

It is understood that the pursuers were granted leave to reclaim in this case, but abandoned it shortly before a hearing.  The Commercial Court is giving serious thought to a Practice Note and/or revision of the relevant Rules of Court.  It is understood that the General Department of the Court of Session is (i) continuing to signet summonses containing warrants for diligence; and (ii) refusing requests from agents that the warrant be put before a judge.  There are concerns about the demands on judicial resources.  There has also apparently been a sheriff court case in which it was accepted that Karl applied to arrestments and the arrestments in question were recalled. 

It is also understood that a First Protocol point may be taken in the appeal of Scottish Power Generation Ltd v British Energy Generation (UK) Ltd 2002 GWD 2-60, a case about whether s 47(2) of the Court of Session Act 1988, enabling the court to make an interim order for the possession of property, could be extended to permit an order requiring payment of money into a designated account.  Lord Macfadyen held on 4 January 2002 that s 47(2)’s reference to property did not justify an order for the interim payment of money, but that such an order was nonetheless competent under the section as an order regarding the subject matter of the cause.