Sheriff Appeal Court rules it is unable to overturn its own earlier decision within the same judicial process

About this case:

• Citation:
  [2025] SAC (Civ) 29
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Pursuer and appellant David Downie raised a claim against NHS Fife Health Board seeking damages in respect of the alleged negligent management of his care. The respondent challenged the competency of the appeal given the earlier procedure and further contended that the appellant was barred by acquiescence from challenging the decision.

The appeal was heard by Sheriff Principal Aisha Anwar KC, with Allardice, advocate, appearing for the appellant and McConnell KC for the respondent.

All prior decisions

In February 2004, the appellant was diagnosed with Bipolar Affective Disorder for which he occasionally received compulsory in-patient treatment. On 14 January 2016, he was detained in hospital on a short-term detention certificate whilst in police custody. The certificate was revoked by the respondent’s clinician Dr Narayan on 18 January, and after the appellant discharged himself from hospital against medical advice he was convicted of a number of criminal offences.

The appellant raised proceedings in Kirkcaldy Sheriff Court in January 2019 contending that Dr Narayan failed to diagnose his recognised psychiatric condition and averring that he would not have committed the offences had the certificate not been revoked. The sheriff excluded part of the claim on the basis of ex turpi causa non oritur actio arising from the appellant’s criminal activity.

A three-judge bench of the Sheriff Appeal Court upheld the sheriff’s interlocutor and remitted the case to the sheriff to proceed as accords. The action was transferred to the All-Scotland Sheriff Personal Injury Court in November 2022, with decree of absolvitor eventually granted in February 2025. The appellant advanced three grounds of appeal, including that both the sheriff and the Sheriff Appeal Court erred in excluding the appellant’s averments on the basis of ex turpi causa.

Counsel for the appellant submitted that it was competent to convene a bench of five appeal sheriffs to reconsider an earlier opinion under the same process. Section 116(2) of the Courts Reform (Scotland) Act 2014 made it competent for the Sheriff Appeal Court to review all prior decisions in the proceedings; that included prior decisions made at any stage of appeal.

For the respondent it was submitted that it was not competent for the appellant to seek for the Sheriff Appeal Court to overturn its own previous decision within the same process. This would put the Sheriff Appeal Court in a different position to both Houses of the Court of Session, which in terms of sections 18 and 39 of the Court of Session Act 1988 could not review their own decisions.

No novel power

In her decision on competency, Sheriff Principal Anwar began by noting: “The appellant is correct to submit that that there is no express prohibition contained within the 2014 Act preventing this court from reviewing its own decisions. That can be contrasted with the provisions of the Court of Session Act 1988, which provide that the judgments of the Outer House or Inner House are final in those courts. However, it is a well-established principle that a court cannot review or recall its own interlocutor. Any rule to the contrary would lead to uncertainty and undermine confidence in the finality of judicial decisions.”

She continued: “Section 48(1)(c) provides that a decision of the Sheriff Appeal Court on the application or interpretation of the law is binding on the Sheriff Appeal Court, unless it is constituted by a greater number of Appeal Sheriffs than those constituting the court which made the decision. It does no more than that. It is plain that subsection (1) refers to prior decisions in separate proceedings. It does not create a novel power for the court to review its own prior decisions in the same proceedings. It would require the clearest statutory language to create such a power.”

Considering whether section 116(2) provided such clear language, the Sheriff Principal said: “The wording of section 116 cannot be interpreted without reference to context, including the existing established rules that a court does not review its own interlocutors, or those of a superior court. I find it difficult to accept that Parliament would have intended such an absurd outcome which would fundamentally alter the hierarchical status of the courts without express and unequivocal language to that effect.”

With reference to Parliamentary material, she added: “The words ‘prior decisions in the proceedings (whether made at first instance or at any stage of appeal)’ were proposed by the Cabinet Secretary for Justice, Kenny MacAskill, as amendment 92 and moved by the Minister for Community Safety and Legal Affairs, Roseanna Cunningham, without any discussion or debate. The absence of any meaningful discussion or debate on amendment 92 points irrefutably to the absence of any intention to displace the well-established rule that a court cannot review its own interlocutor.”

The appellant’s first ground of appeal was therefore refused as incompetent, with a further motion to remit the appeal to the Inner House also refused as such, having been made before an inquorate bench. A procedural hearing was assigned to discuss further procedure in respect of the remaining grounds of appeal.