Eba (AP) v The Advocate General for Scotland

Procedure in the Inner House [13] The reclaimer reclaimed against the Lord Ordinary's interlocutor. The respondent lodged cross-grounds of appeal in which he contended - for the first time - that decisions of the Upper Tribunal were not in any circumstances amenable to the supervisory jurisdiction of the Court of Session. As this was an issue logically prior to that argued before the Lord Ordinary, the respondent, by agreement, addressed the court first.

[21] Finally, in any appeal the Upper Tribunal had the power to retake the relevant decision de novo (section 12(2) of the 2007 Act). In deciding whether to grant permission to appeal, it was therefore entitled to take into account whether any error of law identified was material. That, correctly, was a consideration taken into account by the Upper Tribunal judge in refusing permission to appeal. When the decision by the First-tier tribunal was considered as a whole, there was no realistic prospect of a successful appeal. The reclaiming motion should be refused.

[29] The reclaiming motion should be allowed and the case remitted to the Outer House for further procedure to consider whether there had been an error of law in the First-tier Tribunal's consideration of the case.

Response by Mr Johnston [30] Mr Johnston submitted that the dictum of the Lord President in Watt had not been expressly departed from and remained the law of Scotland ( Stair Memorial Encyclopaedia , Reissue Vol 1, Administrative Law, para 45).

"...[The power of the Court of Session to quash decisions of inferior courts] stems, in my opinion, from the foundation of the College of Justice in 1532 to take over the judicial duties of the King's Council."