Inner House allows reclaiming motion to proceed despite time bar challenge

About this case:

• Citation:
  [2026] CSIH 34
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Clark

The petitioner, who sought judicial review of various decisions made by the respondents, sought to reclaim against a lord ordinary’s refusal to allow her petition to proceed. In response, the respondents cited the applicable seven-day statutory time limit to object to the reclaiming motion being heard.

A preliminary issue in the reclaiming motion was heard by Lord Clark, with the petitioner appearing in person, Jamie McGowan appearing for the first respondent and Eilidh MacEwan for the second respondent.

Seven-day time limit

The petitioner sought judicial review of decisions made by the chief constable of Police Scotland and the Police Investigations and Review Commissioner, the respondents. In a decision made ex tempore on 27 April 2026, the lord ordinary found all but one of the petitioner’s claims to be time-barred and refused permission to proceed accordingly. An interlocutor carrying the same date, accompanied by the lord ordinary’s note of reasons, was issued to the parties on 6 May.

On 11 May, the petitioner contacted a clerk of court to request guidance on the procedure associated with reclaiming against the lord ordinary’s decision. In reply, a member of the court staff informed the petitioner that the seven-day time limit for reclaiming against the interlocutor had already passed, noting however that “I understand this is frustrating due to the interlocutor not being issued until 6th of May but you can put this in the reasons for lateness”. Two days later, the petitioner lodged a reclaiming motion, with the respondents thereafter opposing its being received.

At issue in the appeal was the proper interpretation of section 27D(2) of the Court of Session Act 1988, which provides that “[t]he person making the application [to the Court’s supervisory jurisdiction] may, within the period of 7 days beginning with the day on which the Court makes its decision, appeal under this section to the Inner House”.

The respondents argued that the reclaiming motion was bound to be rejected, as it had not been lodged within the time limit stipulated by that section. The starting date of that time period was 27 April, for that was the date on which the lord ordinary gave his ex tempore decision and the date borne by the resultant interlocutor. In response, the petitioner submitted that she could not reclaim until the interlocutor had been issued and ought not to be prejudiced by administrative errors at the court that had caused such issue to be delayed.

Requirements of natural justice

Approaching the issue of when the statutory time period commenced, Lord Clark began his decision by noting: “If parties are made aware by the Lord Ordinary, on the day of a hearing, of the decision reached and are given the main reasons for that decision, that could be taken as the starting point for the period to bring a reclaiming motion. In several cases that has been done. Section 27D expressly states that the 7-day period begins on the day when the decision is made which could, at least arguably, be taken to mean the date of the ex tempore decision.”

Observing, however, the “more fundamental matter” arising in the case, he continued: “Chapter 38 of the [Rules of the Court of Session] makes a number of references to a reclaiming motion being made against an interlocutor … The court has been advised that in this case if the interlocutor sought to be reclaimed against was absent, the offices of court would not accept the reclaiming motion, on the basis that the petitioner had failed to comply with the requirements of RCS 38.5(2)(a). This would, of itself, have precluded the petitioner in this case from lodging the reclaiming motion within 7 days from the ex tempore decision.”

Concluding that “the earliest date when the petitioner could have competently marked a reclaiming motion was the date when she was sent the signed interlocutor, on 6 May 2026”, Lord Clark queried whether the Rules of the Court of Session “deal with late lodging of an application to appeal against a decision refusing to allow a judicial review to proceed”, stating: “It will no doubt be of assistance if the Inner House could, if another such case arises, at some stage clarify whether ‘the reclaiming days’ mentioned in RCS 38.10 are only those days referred to in RCS 38.2 or whether that also covers reclaiming days/time limits set out in a statute.”

Finding it in any event unnecessary to determine that question in the context of the present proceedings, Lord Clerk concluded: “The unfortunate delay in the interlocutor being issued resulting in the petitioner being unable to lodge her reclaiming motion within the time period should be taken as causing the starting point to be 6 May 2026. If that approach is not followed, it would not have been possible for the petitioner to reclaim. If the court were simply to proceed on the basis that the date of the ex tempore decision was the starting point, or that the wording of section 27D is to be taken as referring to that date, so that this application would be out of time and could never have been made, that would not comply with the requirements of natural justice … In these exceptional circumstances, taking a fair and pragmatic approach to the interpretation of the statutory provision, the starting date here was when the interlocutor was signed and issued.”

The petitioner’s reclaiming motion was accordingly received, with the respondents found liable for costs.