Steven Smart

Mr Downie alleged that negligent management of his psychiatric care in 2016 had led to him sustaining lasting mental-health injuries, which led to subsequent criminal convictions. It was held that NHS Fife were not liable after a civil trial in February 2025. The legal expenses of the action were reserved to be dealt with at a subsequent hearing. Parties reached an agreed position and an order was pronounced on 11 April 2025.

Two weeks later, the pursuer lodged an appeal. Part of his legal case had not been allowed to proceed to trial on the basis that he could not seek damages as a result of his own criminal actions. This argument had been appealed and refused by three Appeal Sheriffs earlier in the action. However, the pursuer asked for five Appeal Sheriffs to be convened to revisit this point, due to an ongoing case in England proceeding to the Supreme Court.

The first issue was whether the appeal was lodged in time. NHS Fife argued that the merits of the case had been addressed at the trial in February 2025. The appeal had not been lodged within 28 days and was therefore too late. The pursuer argued that the legal expenses of the action needed to be determined before an appeal could proceed. There are some competing previous judgments on this point. However, the Sheriff Appeal Court confirmed for the second time that the expenses of an action must be dealt with for a judgment to be final, which in turn starts the clock for an appeal being lodged. The appeal was on time.

However, the motion asking for five appeal sheriffs to revisit the previous decision was refused. The Sheriff Appeal Court cannot review its own earlier judgments in the same proceedings. The relevant legislation did not expressly state this was incompetent. Upon careful consideration of the legislation though, it was not intended to permit such procedure. To allow such reviews to take place would “lead to uncertainty and undermine confidence in the finality of judicial decisions.” Once the Sheriff Appeal Court has determined an issue, only the Inner House of the Court of Session can review it.

Separately, the English case upon which the pursuer hoped to rely involved someone who had been acquitted of the criminal charges brought against them. The pursuer in this case had pled guilty. The outcome of the English case would be distinguished and of no bearing on the present matter. The court therefore also refused a motion to remit the matter to the Court of Session.

The first leg of the appeal was therefore competent as to timing but incompetent as to scope. Other separate grounds of appeal relating to the outcome of the civil trial were allowed to proceed.

An unsuccessful party in an action may well feel aggrieved by the outcome but the certainty of judicial determinations is a necessity to support the rule of law. As Justice Jackson of the Supreme Court of the USA once noted: “We are not final because we are infallible, but we are infallible because we are final.” This decision provides welcome clarity on what triggers the requirements for an appeal, as well as how and when a decision of the Sheriff Appeal Court can be challenged.

Steven Smart is a partner and head of Horwich Farrelly Scotland. This article first appeared in The Scotsman.