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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fargie, Re Judicial Review [2008] ScotCS CSOH_117 (13 August 2008)
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Cite as: [2008] ScotCS CSOH_117, [2008] CSOH 117

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OUTER HOUSE, COURT OF SESSION

 

[2008] CSOH 117

 

     

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD UIST

 

in the petition of

 

LAUREEN JOAN FARGIE

 

for

 

Judicial Review of the eligibility criterion of the Skipton Fund as agreed to and determined by the Scottish Executive in so far as it restricts payments to representatives of persons who have died having been infected with Hepatitis C as a result of infected blood, blood products or tissue from the National Health Service to the representatives of those persons who died after 29 August 2003.

 

 

 

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Petitioner: Gale QC, Miss Sutherland; Drummond Miller WS

Respondents: Johnston QC, Miss Poole; Solicitor to the Scottish Executive

 

13 August 2008

Introduction

[1] This is an application to the supervisory jurisdiction of the court by Mrs Laureen Jean Fargie. She is the widow and next surviving kin of the late George Fargie ("the deceased"), to whom she was married on 17 November 1978. He worked as a gardener, ultimately becoming the head gardener at four hospitals in Edinburgh. He had to retire in 1987 after he suffered a major heart attack. He suffered a further heart attack the following year and subsequently underwent a quadruple heart by-pass operation on 9 November 1990. On or about 11 November 1990 he lost consciousness for a period of about three weeks as a result of medical complications following upon an infection at the site in his leg where a vein had been removed. On 17 November 1990 he had to undergo an operation for the amputation of his right leg. In March 2001 he had to go back into hospital for exploratory surgery on a suspected bowel carcinoma. In the course of that surgery a nurse pricked herself with a needle. Blood tests therefore had to be carried out and it was discovered that the deceased had contracted Hepatitis C some time previously. He was told by the doctors that he must have contracted it from a blood transfusion at the time of either his heart by-pass operation or the operation for the amputation of his right leg. The deceased died from acute pulmonary oedema due to ischaemic heart disease at the Western General Hospital, Edinburgh on 7 March 2003. The petitioner has since obtained an opinion from Dr Andrew Bathgate, Consultant Gastroenterologist at the Centre for Liver and Digestive Disorders at the Royal Infirmary of Edinburgh, who concluded, after considering all the relevant medical records, that the deceased contracted Hepatitis C from an infected blood product.

[2] Hepatitis is inflammation of the liver. An explanation of the Hepatitis C virus ("the virus") is given by Burton J in A v National Blood Authority [2001] 3 All ER 289 at pp 300-301, para 8. Screening tests to eliminate the virus from blood donations were not introduced in the National Health Service (NHS) until 1 September 1991. The effects of the virus were described by Burton J as follows:

"In so far as its consequences are concerned, although it is and can be a serious condition, leading in rare cases to eventual death, many sufferers from Hepatitis C have few or no clinical symptoms, life expectancy is often unaffected and little, if any, change in lifestyle results ..."

 

The Skipton Fund
[3] The Skipton Fund ("the Fund") is a private company limited by guarantee which was incorporated on 25 March 2004. Its registered office is at 35 Belmont Road, Uxbridge, Middlesex. Included in the objects clause of its memorandum of association is "to administer the Hepatitis C ex gratia scheme on behalf of the Department of Health". It is called the Skipton Fund because the meetings to set it up were held at Skipton House, an office of the Department of Health in London. The history of events leading up to the establishment of the Fund is briefly as follows.

[4] In evidence to the Health and Community Care Committee of the Scottish Parliament ("the HCCC") on 25 October 2000 the then Health Minister stated that it was a generally held principle that the NHS did not pay compensation for non-negligent harm. On 26 April 2001 a debate on Hepatitis C was held in the Scottish Parliament. In October 2001 the Committee published a report in which it recommended that the Scottish Executive should set up an Expert Group to consider not only financial assistance to those who were infected with the virus as a result of contaminated blood products but also the wider issue of the NHS making no-fault compensation payments. Such an Expert Group was set up under the chairmanship of Lord Ross, the former Lord Justice Clerk. In its preliminary report published in September 2002 it recommended that the Scottish Executive should establish and fund a discretionary trust as a matter of urgency that would make ex gratia payments to all people who could demonstrate, on the balance of probabilities, that they had received blood, blood products or tissue from the NHS in Scotland and were subsequently found to be infected with the Hepatitis C virus. It proposed (at para 2.7 of its report) that the ex gratia payments be constituted, so far as relevant for present purposes, as follows:

"a) an initial lump sum of г10,000 to cover inevitable anxiety, stress and social disadvantage;

b) an additional lump sum of г40,000 to those who develop chronic Hepatitis C;

c) in addition, those who subsequently suffer serious deterioration in physical condition because of their Hepatitis C infection, e g, cirrhosis, liver cancer or other serious condition(s), should be entitled to additional financial support (on an ongoing basis if necessary) as may be assessed appropriate by the trust. This financial support should be calculated on the same basis as common law damages, taking account of the payments made under a) and b) above;

d) where people who would have been beneficiaries of these arrangements are deceased and their death was not due to the Hepatitis C virus, the above payments should pass to their executors. Where their death was due to the Hepatitis C virus, the trust should provide for payments to be made to dependant children, spouses, partners or parents, as appropriate."

[5] On 11 December 2002 Lord Ross gave evidence before the HCCC and spoke to the Expert Group's recommendations. He stated that the Expert Group recognised that the decision on the above recommendation was political and not for the group to make, that they appreciated that there were many competing demands made on the health budget and that that was why they had insisted on being advised what the measures would cost, but that they felt that the figures were reasonable and that it ought to be possible for them to be accommodated in the health budget.

[6] In a statement to the committee the then Minister for Health and Community Care (Malcolm Chisholm) stated:

"We said in our response to the Expert Group 's report that we share its concerns for those who, through no fault of their own, are suffering 'serious long-term harm'. Those are the words that the Health and Community care Committee used in its report last year. We would very much like to find a way of doing something to help those people.

However, there are quite complex medical, legal and financial considerations. The way in which Hepatitis C presents is variable. Finding a fair set of criteria for making payments and meeting people's needs is not necessarily straightforward. It is also clear that what the Expert Group is proposing involves a very large sum of money and that it would not necessarily focus help on those who need it most. We must take account of the costs of any payment scheme in the light of our other health priorities, which are vital to the people of Scotland.

We are looking very carefully at who needs help and at the best way to design a scheme and structure payments so that the individuals involved benefit fully. There are two considerations. First, we must act within devolved powers, and that might need clarification when it comes to the kind of payments that we are proposing. Secondly, we need to look at the interface with the social security system and devise a scheme that fits it as well as possible, avoiding a situation in which payments lead to social security payments being withdrawn or refused."

The above two considerations were in his view capable of resolution and if progress could not be made on them by the turn of the year he thought it might be necessary to explore other (unspecified) avenues. He also pointed out at one stage in his evidence that "a lot of the people that the Expert Group is proposing should be helped are no longer alive" (sic).

[7] At a meeting of the HCCC on 29 January 2003 the Minister made, inter alia, the following statements:

"I have looked at the details of the proposals from the Expert Group on financial and other assistance for NHS injury, and some difficulties have emerged as a result of my reflections. The main group about which we are all concerned is the group that is made up of people who have contracted Hepatitis C from blood products and who are still alive. It would be reasonable to focus assistance on those people who are still with us and who contracted the Hepatitis C virus in that way. That is the group I would like to help. ...

My thinking is that I would like to give a payment to everyone who contracted Hepatitis C from blood products and who is still alive. I propose the payment of a sum of г20,000 to everyone who is in that position. I still intend to follow the Expert Group 's thinking about a further payment at the cirrhosis, or more advanced, stage of the illness. That is consistent with what I said before Christmas. I propose that г25,000 should be paid at the advanced stage. In concentrating on the people who are still alive I differ from the Expert Group . That is consistent with what I said about targeting support on those who are suffering now as a result of having contracted the virus in the way in question."

When a member of the committee stated that he had emphasised the fact that payment would be made only to those who are still alive and asked what the cut-off date would be for that, the Minister replied:

"I have not come to that level of detail. The important thing is that I have carried forward the principles that I described previously to the committee. A date will have to be set, but the principle is that help should be given to those who are suffering. The corollary to that is the fact that we are talking about people who are still alive. I do not envisage a great deal of retrospection, as the principle of helping those who are still alive self-evidently means that the date will have to be set at around the time that the help kicks in.

That is the general principle that I would follow, and it is what the public would expect, in so far as they support the principle. I would sympathise with that. We want to help those who are suffering as a result of having contracted the virus in this way. In a way, I am simplifying what the Expert Group proposed. If somebody is alive now and has the virus because of NHS treatment they will get the initial payment."

Later another member of the committee pointed out to him that

"People might die between now and the commencement of the scheme."

The Minister did not follow up on that statement.

[8] The Expert Group published its final report in March 2003. Referring to the above Ministerial statement, it said at para 4.20:

"While we appreciate the Minister's desire to focus on people who are alive, we also believe it is manifestly unjust that no payments are proposed for our category D (people who are deceased). This, in particular, can only serve to increase the worry and frustration of those who are alive because they might not survive to qualify for such a payment. For those who have died, it can only add a feeling of unfairness to the grief of the relatives, especially when the delay which cuts off compensation is no fault of the deceased. If the Minister is concerned about the category of relatives being too wide he could of course restrict it to payments to immediate relatives and dependants, eg, spouses/partners and children."

[9] On 31 March 2003 the Scottish Executive issued its response to the Expert Group's final report in which it stated that it would be prepared to fund a scheme as proposed by the Minister on 29 January 2003, but that before establishing such a scheme it would want to be certain that making the payments in question would not result in social security payments being withdrawn or reduced and also that it needed to establish that it did have the necessary powers to operate such a scheme.

[10] In a subsequent news release dated 29 August 2003 the Scottish Executive stated:

"A payment scheme for people in Scotland infected with Hepatitis C from NHS blood products took a major step forward today, Health Minister Malcolm Chisholm announced today (sic).

In a letter to the Health and Community Care Committee the Minister revealed that the UK Government has agreed that the Scottish Executive does have the powers under the Scotland Act to establish the proposed scheme.

And in a parallel announcement the Department of Health has decided to provide financial assistance to people in England.

Mr Chisholm said:

'I am very pleased that the devolved issue has been clarified and we can now get on with the detailed business of establishing the scheme.

I am now hopeful that the benefits issue with the Department of Work and Pensions will be resolved to a satisfactory conclusion and the people affected will be able to receive the financial assistance we have proposed in the near future.' (sic)"

The corresponding English news release stated that "the details of the payments have still to be worked out", the corresponding Welsh one that it still remained "to work out the details for the scheme" and the corresponding Northern Irish one that "details of how the scheme will work and what details will be available are still being finalised".

[11] On 23 January 2004 the Scottish Executive issued a news release in which it stated, inter alia:

"The ex gratia payment scheme for people infected with Hepatitis C from NHS blood or blood products will now be administered through a UK-wide scheme, it was announced today.

The UK scheme, to be administered by a new independent body known as the Skipton Fund, will operate on the same basis as the Scottish scheme announced earlier this year.

It will award lump sum payments of г20,000 to all those who now have Hepatitis C from blood or blood products, with a further г25,000 being awarded when people reach a more advanced stage of the illness.

General eligibility for payments is defined in terms of having received blood, blood products or tissue from the NHS in Scotland before September 1991. No payments will be made in respect of those who have died before August 29 2003, when the Health Minister announced that it had been confirmed the Scottish Executive had the legal powers to operate the scheme, or to people who have cleared the virus spontaneously.

In the case of eligible people who die between August 29 and the time when the scheme is in a position to make payments then the payments will be made to their dependants."

[12] In a news release dated 29 June 2006 the Scottish Executive stated, inter alia:

"The Skipton Fund, the body set up to manage the UK-wide ex gratia payment scheme for people infected with Hepatitis C from NHS blood or products, will go live on the 5 July 2004.

Applications will be processed from Monday 5 July.

General eligibility is defined in terms of having received blood, blood products or tissue from the NHS before September 1991. No payments will be made in respect of those who have died before 29 August 2003 or to people who have cleared the virus spontaneously in the acute phase of the disease. In the case of eligible people who die between 29 August 2003 and 5 July 2004 the payments will be made to their estate. Where eligible persons die after 5 July 2004 payments will only be made to their estate if the eligible person had applied to the Skipton Fund when they were (sic) still alive."

The above eligibility criteria are set out in para 3(g) of a guidance note issued by the Skipton Fund.

[13] The rationale behind the eligibility criterion covering those who died between 29 August 2003 and 5 July 2004 is explained in an affidavit by Andrew MacLeod, Head of Patients and Quality Division in the Scottish Executive, in which he states at para 27:

"The rationale for the transitional period from 29 August 2003 to 5 July 2004 was that it was anticipated that it would take some time to make administrative arrangements and get the scheme up and running and that there might therefore be a delay before the first payments would be made under the scheme. The transition period was designed to cover those claimants who were alive when the scheme was announced and who, therefore, had an expectation of receiving a payment but who, unfortunately, died before the first payments were made. These arrangements were announced in the press release of 3 June 2004."

[14] Since the coming into operation of the Skipton Fund there has been enacted section 28 of the Smoking, Health and Social Care (Scotland) Act 2005, which came into force on 17 October 2005. It provides, so far as relevant, as follows:

"28 Payments to certain persons infected with hepatitis C as a result of NHS treatment etc.

 

(1) The Scottish Ministers may make a scheme for the making of payments by them, or out of money provided by them, to, or in respect of -

(a) persons who -

(i) before 1st September 1991, were treated anywhere in the United Kingdom under the National Health Service by way of the receipt of blood, tissue or a blood product;

(ii) as a result of that treatment, became infected with the hepatitis C virus; and

(iii) did not die before 29th August 2003.

(2) A scheme under this section must - ...

(e) provide that a claim may be made in respect of a dead person,
without such a claim having to have been made prior to that person's death."

On 24 April 2007 the Scottish Ministers adopted the Skipton Fund as a scheme under section 28.

 

The grounds of challenge
[15] The petitioner challenges the lawfulness of the provision of the non-statutory Fund that no payments will be made in respect of those who have died before 29 August 2003. She avers that she wishes to make an application for an ex gratia payment from the Fund but is precluded from doing so because the deceased died before 29 August 2003. At a time when she was unaware of the rationale for this exception as set out by Mr MacLeod in para 27 of his affidavit she averred that the eligibility criteria gave no explanation as to the rationale behind the selection of the date of 29 August 2003 and that she believed that its selection was arbitrary, irrational and unreasonable, disproportionate and in breach of a legitimate expectation. She averred that the eligibility criterion unfairly precluded from payment representatives of persons who were infected with Hepatitis C over a lengthy period of time and that it could and should have recognised that persons who died before 29 August 2003 as a result of infection with Hepatitis C caused by contaminated blood, blood products or tissue were as deserving of payment from the Fund as those who died after that date. Had the deceased not died he would have been eligible to make a claim. Had he died on or after 29 August 2003 the petitioner would have been able to make a claim. The eligibility criteria made no provision for exceptional or discretionary payments to the representatives of persons infected with contaminated products who died before 29 August 2003. In failing to make provision for exceptional or discretionary payments in respect of infected persons who died before 29 August 2003 the Scottish Ministers had acted unreasonably and / or disproportionately having regard to the intention of the Fund to provide compassionately for persons who had suffered as a result of infection by a contaminated product. The petitioner also avers that the provision excluding payments to those whose infected relatives died before 29 August 2003 breaches her human rights under Article 14 (A14) of and Article 1 of Protocol 1 (A1P1) to the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). She seeks the appropriate declarator and reduction of the eligibility criterion. It was conceded (in my opinion, correctly) on behalf of the Scottish Ministers ("the respondents") that the decision under challenge was susceptible to judicial review.

 

Submission for the petitioner
[16] The submission for the petitioner was lengthy and wide-ranging, but I think that it can be summarised as follows. The decision under challenge was unreasonable, irrational and disproportionate, defeated the petitioner's legitimate expectation to an ex gratia payment and in contravention of A14 and A1P1. The petitioner did not seek to challenge a cut-off date in principle, but only to submit that the cut-off date of 29 August 2003 was irrational. There was no indication that considerations of allocation of scarce or limited resources played any part in the selection of the date in question: the rationale behind the choice of that date was to be found in what Mr MacLeod said in para 27 of his affidavit. The date chosen was referable to an announcement about a fund out of which ex gratia payments would be made in respect of victims. The respondents founded upon the effect of that announcement. If they had plucked a date out of the air (such as 1 January 2000) not referable to any event in the whole process, that would have been unreasonable. The date chosen had the effect of excluding payments in respect of part of the group of victims, namely, those who died before 29 August 2003, who were not in any material way different from those who died on or after 29 August 2003: the effect of that choice was to divide the victims into two categories.

[17] In support of the general proposition advanced on behalf of the petitioner the following authorities were referred to: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 1 KB 223; Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 per Lord President Emslie at pp 347-8 and Lord Cameron at p 356;`Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 per Lord Diplock at p 410; R v Ministry of Defence ex parte Smith [1996] QB 517 per Sir Thomas Bingham MR at pp 554 et seq; R v Secretary of State for Scotland 1999 SC (HL) 17 per Lord Clyde at PP 41-2: R (Daly) v Secretary of State for the Home Department per Lord Steyn at pp547-8 and Lord Cooke of Thorndon at pp 548-9; R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 per Lord Slynn of Hadley at pp 320-321; R (Association of British Civilian Internees Far East Region) v Secretary of State for Defence ("ABCIFER") [2003] QB 1397 per Dyson LJ at pp 1412-4; R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392; and Somerville v Scottish Ministers 2007 SC 140 (Inner House) and [2007] UKHL 44 (House of Lords). It was accepted that the Court of Appeal in ABCIFER and the Inner House in Somerville had rejected proportionality as a stand-alone ground of judicial review in a case which does not involve Community Law or engage a Convention right. In ABCIFER the Court of Appeal declined to perform the burial rights of the test of Wednesbury unreasonableness.

[18] It was submitted that the sole rationale for the selection of 29 August 2003 was based on the consideration that there might be persons who were alive when the announcement about the setting up of the Scheme was made on that date, and who therefore acquired an expectation of receiving payment, but who might die before the Fund was established. The submission was that the decision to agree to and adopt 29 August 2003 as the starting date for eligibility in the case of deceased victims was unreasonable in the sense that it was beyond the range of responses open to a reasonable decision maker. It was accepted that it would have been rational to have excluded all deceased victims, but it was submitted that to include deceased victims subject to the exclusion of those who died before 29 August 2003 was irrational. The submission was restricted to the rationality of the decision to select the starting date of 29 August 2003. On 29 January 2003 the Minister had stated clearly to the HCCC that if someone was alive then and had contracted the virus through NHS treatment then that person would receive the initial payment. He was unable to make the announcement at that time as the devolved powers issue and the social security claw-back issue had not been resolved. He also gave on 29 January 2003 a clear indication of the structure and level of payments. When the subsequent announcement of 29 August 2003 was made the only unresolved issue that had been resolved was that of devolved powers. That announcement therefore said no more than that one potential inhibitor had been removed and another remained. It did not announce a scheme: it made no reference to the form of a scheme, levels of payment or when they would be likely to be made.

[19] The respondents' position appeared to be that no one could have had a legitimate expectation to receive a payment from the Fund before 29 August 2003, and that the critical change which the announcement of that date made was the confirmation that the creation of a scheme was within devolved powers. It would therefore appear to be their position that without confirmation of devolved competence If one considered carefully what was said in the announcement of 29 August 2003, and had regard to the underlying rationale of expectation, all that was said was that persons alive on that date would be able to make a claim on and receive payment from any fund to be created. There was no requirement to create a fund at that time: there was no statutory obligation to create Fund, and there remained the issue of social security claw-back to be resolved. The respondents' position appeared to be that the absence of a confirmation of devolved competence resulted in the inability to create in a person who was alive as at the date of a statement an expectation that a claim could be made and a payment received. That position was applied inconsistently by the respondents, who relied upon it in relation to the statement made by the Minister on 29 January 2003 but maintained that the announcement of 29 August 2003 gave rise to an expectation. When the two statements were properly considered there was no material difference between them when tested against the rationale of expectation. In essence both statements made clear that a person alive at the date of the statement had an expectation that he would be able to make a claim and receive payment from the Fund to be created: indeed, it could be legitimately maintained that the Minister's statement of 29 January 2003 more clearly expressed the expectation and gave it greater content than did the announcement of 29 August 2003.

[20] It was submitted that to select 29 August 2003 as the date from which the exclusion was to apply was irrational in accordance with the test set out in ex parte Smith and Rogers. In placing reliance upon the rationale of expectation it was incumbent upon the respondents to explain rationally why one representation gave rise to an expectation (and was thus relied upon) when an earlier representation (which was materially the same as that relied upon by the respondents) apparently did not give rise to an expectation. No explanation at all, far less any rational one, had been advanced by the respondents. It was irrational to suggest that, because of the involvement of the other three health departments in the United Kingdom, consistency required that the earlier representation made in respect of Scotland fell to be disregarded. It was plain that any scheme which thereafter fell to be created could have recognised in this context the particular Scottish dimension (as subsequently occurred). The statement made by the Minister on 29 January 2003 contained a clear and unequivocal representation to people in Scotland who had been infected with the Hepatitis C virus as a result of NHS treatment, and who were then alive, that they would be able to claim and receive payment from a Fund yet to be created. That statement created a legitimate expectation on their part that they would be able to claim and receive a payment. The respondents' decision to rely upon a later date under reference to a later statement so as to fix an eligibility criterion operated unlawfully to defeat that expectation.

[21] Reference was made in this context to the decision of the Court of Appeal in R v North and East Devon Health Authority ex parte Coughlin [2001] QB 213 in which Lord Woolf MR at p 241 et seq set out a four-part test for the successful challenge to a decision based on legitimate expectation of a substantive benefit. The requirements were: (i) a clear and unambiguous representation; (ii) made to a small determinate group of people; (iii) on which they reasonably placed reliance to their detriment; (iv) in circumstances in which there was no overriding public interest to justify the person who made the representation in departing from it. A clear and unequivocal representation that victims then alive would receive payments was given by the Minister in his statement of 29 January 2003. That statement was made publicly to the group of persons in Scotland who had been infected with the Hepatitis C virus and were then alive. They were entitled to rely upon the Minister's representation and the court should not require proof of individual reliance or detriment in this case. In any event, the deceased had died within six weeks of 29 January 2003 and there was evidence from the petitioner in her affidavit that he was aware of the proposals in the broadest sense, continued to check the newspapers and teletext and also consulted solicitors. The respondents had failed to show that there was any overriding public interest to justify subsequently departing from the representation of 29 January 2003. There was no suggestion that the date of 29 August 2003 was selected or agreed to by the respondents in order to save costs and the suggestion that consistency was a feature flew in the face of logic and of subsequent events.

[22] The respondents in setting the eligibility criteria to exclude those whose relatives died before 29 August 2003 had breached petitioner's Convention rights as set out in A14 of and A1P1 to the Convention.

A14 provides:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without any discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

A1P1 provides:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."

[23] The legitimate expectation of 29 January 2003 constituted a possession under A1P1 as it was a right in itself (Capital Bank AD v Bulgaria (Application 49429/99) 24 November 2005 at paras 133 and 134). The petitioner had been deprived of that legitimate expectation by the announcement of 29 August 2003. Had the deceased died after 29 August 2003 she would have been entitled to a payment from the Fund. The eligibility criterion complained of accordingly discriminated against her based on the date of the deceased's death. Such discrimination was prohibited under A14 when operating along with A1P1. The setting of the eligibility criterion was neither justifiable nor proportionate.

 

Submission for the respondents
[24] The submission for the respondents was set out in clearly defined separate chapters as follows.

 

Rationality

[25] The submission for the respondents began by pointing out that the petitioner challenged not the scheme as a whole, but one particular criterion in its operation, namely, the cut-off date which excluded claims on behalf of persons who died before 29 August 2003. It was not irrational for the respondents to choose a cut-off date. Resource considerations might have made it essential to do so. The choice of date was within the range of reasonable responses open to the respondents. They were under no obligation to justify their particular choice of date under reference to detailed financial calculations, even if that were possible. The respondents might choose a date, for example, merely for reasons of administrative convenience, but in this case reasons for the choice were put forward.

[26] It was difficult in any circumstances to categorise a choice of cut-off date as irrational. The choice could be irrational if made in bad faith or if it frustrated the whole purpose of the scheme, neither of which was suggested in this case. The purpose of the scheme was to make ex gratia payments targeted primarily at living victims. The particular date chosen was more generous than what would have been mandated by the normal approach of non-retrospectivity, and the court should be wary of attempts to extend the retrospective attempt further. Creating exceptions to cut-off dates some years after a scheme commenced might give rise to more problems then were solved. The fact that having a cut-off date gave rise to hard cases did not make a cut-off date irrational. It was worth noting that in the particular circumstances of the present case it would be impossible to make a precise calculation and arrive at the "right date" in resource terms. First, it was clear from the A case that the effect of Hepatitis C on people was very variable. Some people cleared the virus spontaneously. Hepatitis C might take years to develop and might never be detected. The number of eligible stage 1 applicants could never be predicted with accuracy. Secondly, the same applied to the number of stage 2 applicants as it was never possible to know in advance how many people would develop the more serious conditions resulting in a stage 2 payment. Thirdly, the take-up rate for claims was also an unknown, as discussed in the Expert Group report. Inevitably, the decision about a date would involve unknowns and give rise to a range of possible dates.

[27] The parliamentary and other material produced showed that the date of 29 August 2003 had been chosen for rational reasons. In that material the following considerations had received particular emphasis:

(a) priority given to those alive and exposed to long-term suffering;

(b) limited resources and the need to take account of other demands on the
health budget;

(c) the need to work closely with the UK Government, since the power to
make such a scheme was arguably a reserved issue, and the question of disregarding ex gratia payments under the scheme for social security purposes was undoubtedly a reserved issue; and

(d) the economies of scale in adopting and administering a UK-wide
scheme.

The respondents had expressly considered the question of a cut-off date and the related question of resources. The key contemporary material was contained in the report of the Expert Group, the respondents' response to it and the ministerial statements to the HCCC. Similar but later material existed for proceedings on what became the 2005 Act.

[28] The need for a cut-off date emerged from the analysis of costs prepared by the Expert Group, taken together with the level of resources available in the health budget. It was relevant to note two further important features, namely: (i) that a cautious approach towards funding the scheme was rationally justified because of the "long tail" characteristic of the virus (see A at para 193); and (ii) that since no regime of prescription or limitation applied to claims of this nature, there might turn out to be a substantial potential liability to claims brought on behalf of those who had died before 29 August 2003, involving significant potential for disruption to the health budget. The Minister had explained the financial constraints clearly to the HCCC and explained why the recommendations of the Expert Group were not going to be implemented in full. The natural inference was that the scheme he promulgated later in the same year was compatible with the resources available from the health budget. The decision was therefore taken by the respondents after scrutiny by the HCCC and in a matter concerned with the allocation of limited resources. The intensity of review by the court should therefore be at the bottom end of the scale.

[29] Not only was consideration given to the appropriateness of a cut-off date and the resource issue when the scheme was initially considered by the Scottish Parliament in 2002/2003, but these considerations were renewed on proceedings on the Bill which became the 2005 Act. The question of revoking the 2003 cut-off date was then expressly considered. An amendment proposing that that should be done was accepted at Stage 2 of the Bill, but ultimately rejected at Stage 3 after full discussion of the merits and demerits of that cut-off date. Claims in respect of victims who had died before 29 August 2003 were therefore excluded after a process of detailed consideration.

[30] The Minister had at all times made clear that the level of payments from the scheme and the eligibility criteria had to be fixed with regard to the fact that there were other demands on the health budget. The emphasis throughout had remained on (1) giving priority to those alive and exposed to long-term suffering and (2) using limited resources to best effect. Because resources were limited, the eligibility criteria under the scheme were necessarily interlinked with the amounts of the ex gratia payments. Had there been no cut-off date, demands on the health budget would have dictated that the ex gratia payments should be fixed at smaller sums, as pointed out by Mr MacLeod at paras 8-10 of his affidavit, which read as follows:

"8. The Scottish Ministers gave careful consideration to the recommendations of the Expert Group. They also had regard to other ex gratia or no fault schemes in the UK and other countries. These included the payments made by the MacFarlane and Eileen Trusts, the v CJD Scheme, the Criminal Injuries Compensation Authority, the Pneumoconiosis Etc (Workers' Compensation) Act 1979, the Vaccine Damage Payments Act 1979, the scheme in operation in the Republic of Ireland for compensation of hepatitis C patients and no fault schemes established in New Zealand and Sweden.

9. The options considered included the making of lump sum payments and/or the payment of an income stream to take account of the special needs of hepatitis C sufferers. There were a number of complex legal issues which required to be considered, including the power which the Scottish Ministers might have to establish a scheme, as any new scheme for making ex gratia payments would have to be compatible with the reservation contained in section F1 of Schedule 5 of (sic) the Scotland Act which reserves social security provision. The reservation includes 'schemes supported from central or local funds which provide assistance for social security purposes to or in respect of individuals by way of benefits'. Consideration also had to be given to the possible interaction of receipt of ex gratia payments with the social security and tax regimes, both of which are reserved.

10. Importantly the Scottish Ministers had to determine whether the various options were affordable and what impact these payments would have on the health budget. The resources available to the Scottish Ministers are finite. Payments by the Scottish Ministers to the scheme require to be taken from the health budget. Payments to the scheme would directly affect the amount of money available for other matters covered by the health budget. The various calls on the budget required to be balanced against each other. The Scottish Ministers had to take into account the resources available and the various other calls upon them when determining whether there should be a scheme and if so what payments would be made, in what sums, and who would be eligible to receive them."

Removing the cut-off date at this stage would undermine the whole basis on which the Scottish Ministers (and those in the other UK administrations) had decided to allocate the funds to the scheme from their budgets and expose them to the need to reduce their intended spending in other areas of the health budget.

[31] The petitioner appeared to place some weight on events that occurred after the decision to set up the scheme was taken, and indeed after the scheme had begun to operate in July 2004, but these events were not relevant. Some significance was attached to the change to guideline 3(g) of the Skipton Fund. This came into effect on 12 January 2006 and removed the original criterion which allowed payment to the estate of a person who had died after 29 August 2003, but only where the death occurred after the commencement of the scheme on 5 July 2004, if an application had been submitted. This change did not render the respondents' decision about the cut-off date irrational. The decision to adopt the cut-off date was taken before the scheme came into operation in July 2004, as clearly stated in the news release of 23 January 2004, and could not be rendered irrational by a subsequent change in the scheme. The change was consistent with the 2005 Act and the respondents had no power to make a scheme that conflicted with the statutory scheme. It removed what the Expert Group regarded as an injustice in the scheme as originally promulgated. The fact that proceedings in the Scottish Parliament in the course of 2005 introduced various criteria in section 28 of the 2005 Act which did not feature in the scheme as originally promulgated had no bearing on the rationality of the original decision; nor did the fact that there may now be some differences in the criteria applicable to Scottish as opposed to other applicants mean that consistency in 2004 was not a relevant and rational factor for the respondents to take into account.

[32] The following observations were made to conclude the submission on rationality.

[33] So far as the petitioner's case was concerned, much had been said about the fact that the scheme was not confined to providing assistance to the living, since it allowed transmission of claims available to those alive on 29 August 2003 to their estates, but this had little to do with the petitioner's own case. Any claim the petitioner had would necessarily be by way of transmission from her late husband, so she had no interest in challenging the transmissibility of claims. Her claim was directed not at transmissibility, but at the requirement that in order to claim a person had to have survived until 29 August 2003. The petitioner had apparently and correctly agreed that there had to be a cut-off date. Her argument was that it should not be 29 August 2003. Her suggestion was that it should be 29 January 2003. This involved asking the court to substitute a date at which it arrived itself. Nothing could have made it clearer that this was an application for review of the respondents' decision on the merits. The petitioner did not in her petition ask for a different date to be substituted, but for declarator and for reduction of the criterion of survival until 29 August 2003. This raised a number of problems, having regard to the terms of the 2005 Act, but it was enough to note that the Scottish Parliament's financial information indicated that Scotland might have to withdraw from the scheme if the cut-off date were deleted. It should also be noted that the question of the cut-off date of 29 August 2003 was expressly considered by the Scottish Parliament when deliberating on the statutory scheme which was to take the place of the 2004 scheme. The date was retained. For the court to strike it out would amount to engaging in social and economic policy-making.

[34] The following points summarised the respondents' case on rationality. The petitioner's challenge was a very specific one to the adoption of 29 August 2003 as a criterion in the operation of the scheme and the exclusion of any person who was not alive on that date from the benefit of the scheme. Only in the most exceptional cases could the exercise of prerogative power to appoint the starting date for a scheme or commencement of a statutory provision be said to be irrational. In this case the choice of date had a rational basis. It was not appropriate to consider the rationality of the particular choice of date in isolation: the question was what function it served in the scheme as a whole. There was no irrationality in making the scheme subject to a specified cut-off date. The cut-off date was one of a number of features integral to the scheme that reflected the fact that resources were limited. There was therefore a particular importance in having a cut-off date since (a) the prognosis for those infected was variable, and the median duration of the period from infection to cirrhosis was 30 years, so that there was a potential long-tail element in these claims; and (b) no regime of prescription or limitation applied to cut off old claims. At the time of making the scheme the respondents had information about the number of potential claimants who were alive and other relevant financial information and were therefore in a position to form a view about the costs the scheme would involve and its impact on the health budget as a whole. The respondents had satisfied themselves that on resource grounds there had to be some restriction on eligibility under the scheme. In setting up an ex gratia payment scheme the respondents were not obliged to carry out detailed financial calculations in order to select a cut-off date: to insist on that would be for the court to enter into a review of the merits and to apply, contrary to the authorities, a rigorous scrutiny of a decision made in the field of social and economic policy. In any event no such exact calculation was possible, having regard in particular to (i) the uncertain prognosis for those infected, some of whom might spontaneously clear the disease; (ii) the uncertain take-up rate; and (iii) the uncertainty about how many claimants at stage 1 would become entitled to a stage 2 payment. The scheme as a whole reflected the limits on resources with respect to both the amount of the ex gratia payments and the number of people eligible for them, but the petitioner's challenge sought to remove one fundamental aspect of the structure of the scheme while leaving the remainder untouched: this had the effect of unbalancing the whole, because a scheme designed to distribute more payments would have been designed at the same time to distribute payments of lesser amounts. The scheme had been consistently described as one that was "targeted" at providing, or whose main purpose was providing, aid to those living with the virus, and there had been unwavering consistency in adhering to the criterion that any claimant must have been alive on 29 August 2003. The allowance of payments to the estates of those who were alive on the date the scheme was announced but had since died represented a qualification to the main principle of providing assistance to the living, but there was no reason why the main purpose could not, consistent with rationality, be subject to qualification: what was important was that the qualification was consistent with the rationale of establishing a scheme whose financial consequences were not open-ended but could be accommodated within the health budget. The respondents had been entitled on the ground of fairness to take the view that payments should be made to or in respect of everyone who was alive at the date the intention to establish the scheme was announced on 29 August 2003. That did not make their decision regarding a cut-off date irrational: the choice of that date was within the reasonable choices open to the respondents, and it would be surprising if acting fairly in public administration were to be regarded as irrational. The petitioner had maintained (on a selective reading of Mr MacLeod's affidavit) that the sole rationale for the choice of date was engendered on the date of the announcement. That overlooked not just the fuller explanation given by Mr MacLeod and supported by the evidence as a whole but the reality that the scheme had to have a starting date. No starting date would please everyone, but that could hardly mean that it was irrational to appoint one. The fact that some people necessarily fell on the wrong side of the line did not make the choice of date irrational. The selection of a date that in fairness accepted the claims of those living on the date that all health ministers in the UK announced that a scheme was being established could not properly be described as irrational.

Proportionality
[35] It was recently reaffirmed by the Inner House in Somerville v Scottish Ministers that proportionality was not currently a ground for review at common law (see also the ABCIFER case at paras 32-37). In any event it was difficult to see how the recognised test of proportionality as set out by Lord Clyde in De Freitas v Ministry of Agriculture
[1999] 1 AC 69 at p 80 could be applied to a decision to select a particular date for eligibility under an ex gratia payment payments scheme as proportionality had to be assessed against the objectives of the scheme. Furthermore, the De Freitas test was concerned with limitations on fundamental rights rather than on limitations on eligibility to apply for an ex gratia payment.

 

Legitimate Expectation
[36] The petitioner had sought to generate a legitimate expectation in the deceased to an entitlement to an ex gratia payment prior to his death on 7 March 2003. Although the four-part test in R v North and East Devon Health Authority ex parte Coughlan was accepted by the petitioner, none of the four requirements had been made out in this case.

[37] So far as the first requirement (a clear and unambiguous representation) was concerned, no clear or unambiguous representation had been made before the death of the deceased. The petitioner had relied on one sentence in the Minister's statement of 29 January 2003 divorced entirely from its context in order to generate the necessary representation. The cases made the importance of context clear: Lord Reed in Shetland Isles Council v Lerwick Port Authority [2007] CSOH 5 at paras 155-6. There were two aspects to this. First, the Minister's remarks had to be read as a whole: the statements made it clear that a number of issues had to be resolved before any scheme could come into being. Of absolutely fundamental significance was the fact that ministers were at that time unsure whether they had power to - and whether they would - make any scheme at all. Equally important, since it was made clear that much work had to be done before the scheme could come into operation, was the statement that not much retrospection was envisaged. That statement (made close in time to the statement that the petitioner relied upon) must have been discouraging for some who had hoped to submit claims in the future, precisely because it was a clear statement that they might not qualify. The representation said nothing about a person in the petitioner's position, seeking to rely on a transmitted claim. Secondly, the general context in which the remarks were made was important. The minister was called upon by the parliamentary committee to keep them abreast of the respondents' work in seeking to introduce a policy of ex gratia payments to those who had been infected with Hepatitis C in NHS hospitals. The discussion in committee was clearly intended to influence the development of emerging policy: it was not the last word or final expression of any concluded view. The statement was entirely different from a considered decision published or set out in a letter. It should perhaps also be borne in mind that too intrusive a doctrine of legitimate expectation could undermine the proper discussion and formulation of policy. The petitioner's submissions on irrationality made a persuasive case why at that time no legitimate expectation of entitlement to a payment could have arisen: the details of the scheme had yet to be worked out, including when it would commence and the eligibility criteria it would employ; the vires issue had yet to be resolved; the social security question had yet to be answered; and the Macfarlane Trust had yet to be approached. The logic of the petitioner's submission that no expectation could have arisen on 29 August 2003 is that, if any did, it must have arisen later, not earlier. If any did arise, it could not have done so before the news announcement made on 23 January 2004. Only then were the issues resolved and the respondents clearly able to proceed with making a scheme under their own powers. Even then none of the public announcements suggested that there would be any entitlement in respect of people who died before 29 August 2003.

[38] So far as the second requirement (representation made to a small determinate group of people) was concerned, in Coughlan the court clearly recognised that the consequences of recognising an enforceable legitimate expectation were more extreme than, for example, recognising a procedural expectation to be consulted. It therefore stressed that most case of substantive expectation would be confined to one person or a few "giving the promise or representation the character of a contract". While it was true that the current trend was to appeal less to private law analogies, this nonetheless remained the leading modern case on substantive legitimate expectation. The statement founded on in the present case was very far from having the character of a contract. It was not made to a few individuals, but to a committee of the Scottish Parliament. It became widely available after it was published in the Official Report. The requirement that the representation be made to a small determinate group of people was therefore not satisfied. While the rationale for such a requirement did not appear to have been much explored, it seemed probable that it was connected with a point already made: the general context in which the remarks were made and the improbability that in that context that any undertaking in favour of particular individuals was intended.

[39] So far as the third requirement (reasonable reliance on the representation and detriment) was concerned, no real reason had been given why the petitioner did not require to satisfy that part of the test. The submission that in circumstances such as these it would be difficult for the petitioner to show reliance or detriment did not lead to the conclusion that she should not have to do so: it led to the conclusion that she did not enjoy a legitimate expectation. The suggestion that reliance was not required was inconsistent with authority. Shetland Isles Council at paras 162-4 and R v Secretary of State for Education and Employment ex parte Begbie [2001] 1 WLR 1115 at p 1124 made clear that in representation as distinct from policy cases it was very much the exception rather than the rule that detrimental reliance would not be present when the court found unfairness in the defeating of a legitimate expectation. The present case was clearly a representation rather than a policy case since there was at 29 January 2003 no scheme in operation and therefore no established policy in administering it that the petitioner could rely upon the ground of consistency.

[40] So far as the fourth requirement (absence of any overriding public interest) was concerned, reference was made to Coughlan at paras 57, 58 and 77; R v Ministry of Defence ex parte Walker {2001] 1 WLR 807 at pp 813 and 815-6; and R (Mullen) v Secretary of State for the Home Department [2004] 3 All ER 65 per Lord Steyn at pp 62-3, para 60. Even if a legitimate expectation were raised, it would not be unfair or an abuse of power for the respondents to override that in the public interest. In the first place, it was not possible to identify here such conspicuous unfairness as to disable the minister from departing from the alleged representation. Secondly, there was a clear public interest in the fair allocation of the health budget and there was clear evidence that to operate the scheme without the cut-off date might double its costs, with consequent adverse impact on other parts of the health budget.

 

Human rights
[41] The petitioner required to establish that (i) her rights under A1P1 were engaged; and (ii) that there had been an interference with those rights. If so, the question arose (iii) whether there was justification for that interference with her rights.

[42] So far as the question whether her rights under A1P1 were engaged was concerned, the petitioner had no right to an ex gratia payment in terms of the scheme. There was no possession under A1P1. The cases, including those relied on by her, did not support her submission. In Pressos Campania Naviera SA and Others v Belgium 21 EHRR 301 (paras 31 and 39) the possession was a vested right to compensation for damage to property. In National and Provincial Building Society v UK 25 EHRR 127 (paras 62-3 and 70) the possession was a vested right to restitution of tax paid when it was not due. Gratzinger v Czech Republic (Application 39794/98, paras 63, 69, 72 and 73) followed the Pressos case. It did not suggest that something short of a vested right which could be enforced by an action amounted to a "possession". If a hope of recovering one's former property was not a possession, it was hard to see how a hope of acquiring some in the future could be. A hope based on a statement made by a minister to a committee was very far from that. The ABCIFER case at paras 81-2 stated no more than that a person who fulfilled the scheme's criteria had a legal entitlement enforceable by judicial review and hence a "possession". The petitioner in the present case did not fulfil the scheme criteria. In Roche v UK (Case 32555/96) (paras 122-4, 127-130) a soldier complained that he was prevented from bringing proceedings due to the existence of a certificate under section 10 of the Crown Proceedings Act. The court found that there was no possession within A1P1 because there was no civil right to bring a claim recognised by domestic law for the purpose of Article 6 of the Convention. That case was similar to the present one.

[43] There was a further conceptual difficulty with the petitioner's approach to "possessions". It had been accepted on her behalf that a legitimate expectation was not assignable. If that were so it was difficult to see why it should be transmissible on death. It followed that even if, contrary to these submissions, the deceased had a legitimate expectation, the petitioner herself did not have one.

[44] The answer to the question whether there had been an interference with the petitioner's rights was in the negative. She had no possession which had been subjected to any interference. There had been no interference with any right of action.

[45] So far as concerned the question whether any interference with the petitioner's rights was justified, the relevant considerations were usefully summarised in Clayton & Tomlinson, The Law of Human Rights at paras 18.64 - 18.68. The main question was whether the interference could be justified in the public interest, which involved striking a fair balance between the interests of the individual and the wider community interest. The Strasbourg Court in considering this question allowed states a margin of appreciation, especially where economic and social measures were concerned. The same notion was reflected at the domestic level in applying only a moderate degree of scrutiny to decisions involving those issues. Reference was made to Beyeler v Italy (Appl 33202/96) at para 114; James v UK (1986) 8 EHRR 123 at para 46; and Stec v UK (Case 65731/01) at para 51.

[46] The legitimate aims pursued by the exclusion of payments from the scheme in respect of persons who died before 29 August 2003 were primarily based on allocation of public funds. There were also administrative reasons. The decision to adopt the criterion complained of was taken in the public interest on social or economic grounds. Balancing funds across a range of needs and avoiding disproportionate costs amounted to sufficient justification for any difference in treatment. The decision of the respondents should be respected as it was not "manifestly without reasonable foundation" (James v UK). Any interference with the petitioner's rights was justified under A1P1.

 

Futility
[47] Section 28 of the 2005 Act came into force on 17 October 2005. The policy and financial memos and the affidavit of Mr MacLeod at para 28 set out why it was thought advisable to take statutory powers in relation to the scheme. The respondents recognised that their prerogative powers were affected by the enactment of section 28 in the sense that they could not make a scheme that was inconsistent with section 28 of the 2005 Act. As stated above, they had since adopted the Skipton Scheme. Section 28(1)(a)(iii) and 28(1)(b)(iii) made it clear that no payment could be made in respect of victims who died before 29 August 2003. Accordingly, the respondents were prevented by statute from making any scheme that did not include the eligibility criterion of which the petitioner complained. The fact that a change had been made to one criterion in the scheme (the reference to 5 July 2004) before the adoption of the statutory scheme did not assist the petitioner as that change was entirely in accordance with the statutory scheme.

[48] Matters went further. If the court were to strike out the cut-off date criterion, this would create a scheme entirely different from the one approved by the respondents and the Scottish Parliament in 2003 and brought into operation on 5 July 2004. It would be missing a critical element in the structure of that scheme, namely, the cut-off date which was deliberately adopted with a view to containing the financial consequences of the scheme within reasonable bounds. The serious consequences of removing the cut-off date (more or less doubling the anticipated costs of the scheme) were outlined in Mr MacLeod's affidavit. The rationale for having put the scheme on a statutory basis related to ministerial powers to make payments. It followed that any remedy granted in these proceedings would be futile and serve no practical purpose. The court should therefore not exercise its discretion to grant the remedies sought: R v Cambridge Health Authority ex parte B [1955] 1 WLR 898 and King v East Ayrshire Council 1998 SC 182 at p 196.

 

Delay
[49] In any event, the delay by the petitioner in bringing proceedings meant that she was barred from proceeding by mora, taciturnity and acquiescence. Information about the restriction of entitlement under the scheme to the living had been in the public domain for a long time before the petitioner raised her petition in November 2005 (news releases of 23 January and 3 June 2004 and proceedings in the Scottish Parliament from March to May 2005). Somerville v Scottish Ministers at para 94 confirmed that the elements of mora were delay, taciturnity and acquiescence. There was no need to show prejudice or reliance by the party seeking to rely on the plea of mora: rather, there was a more general question whether the petitioner should be entitled to invoke the supervisory jurisdiction of the court in all the circumstances. In Hanlon v Traffic Commissioners 1988 SLT 802 (at pp 804H-805F) a decision of a traffic commissioner about scales of taxi fares was judicially reviewed. Acquiescence founding a good plea of mora was inferred from the petitioner's silence until the petition was brought. The court was influenced by the fact that a new scale had come into effect 8 months before the action was brought. The present petition had been served on 22 December 2005. From at least 23 January 2004 it had been a matter of public knowledge that no payments would be made under the scheme in respect of victims who had died before 29 August 2003. The scheme had been running since 5 July 2004. The petitioner's own affidavit showed that she was familiar with the notion that there was to be a scheme before it began. The delay in the face of an operative scheme was such as to amount to acquiescence.

[50] Further, were the orders sought to be granted the respondents would be prejudiced by failure to bring proceedings timeously. Good public administration was prejudiced where challenges were delayed: King v East Ayrshire Council 1998 SC 182 at p 196 D-F. As Mr MacLeod noted in para 12 of his affidavit, the amounts of the payments (г20,000 and г25,000) reflected the fact that those who did not survive until 29 August 2003 had no claim. Had the cut-off date not been there, the payments would not have been in those amounts. A finding in favour of the petitioner would therefore undermine the basis on which the Fund had been operating throughout the UK since July 2004 and under which substantial sums had been paid out. The petitioner maintained that the cost associated with removing the cut-off date could not possibly be г20 million, but that was the estimate provided to the Scottish Parliament when considering the statutory scheme at Stage 2 of the Bill.

 

Response for the petitioner
[51] The response for the petitioner underlined that she did not suggest that the scheme was a bad scheme save for the criticism made of the cut-off date of 29 August 2003. It was not suggested that the respondents were not entitled to decide that the scheme should be designed in a way that sought to benefit those who were still in life and coping on a day to day basis with the consequences of having been infected with the Hepatitis C virus through NHS treatment. It had been suggested for the respondents that the challenge to the rationality of the decision came close to a "merits" challenge. It did not. It was not suggested that the rationale of the decision made by the respondents to the effect that the scheme should be principally directed towards benefiting the living was in question, notwithstanding the observation of Lord Ross's Expert Group that it was manifestly unfair to exclude payments to the representatives of those who had died after having been infected with the virus. As Lord Ross had properly recognised, the decision to exclude payments to representatives of deceased victims was primarily a decision taken in the political field, and the political status of such a decision was similarly recognised on behalf of the petitioner. The prevalence of authoritative judicial thinking was that such a decision should rarely be subject to the supervisory jurisdiction of the court.

[52] There was nevertheless a significant distinction to be drawn between the approach to be taken to the type of decision which was properly within the political sphere and that which was a very specific decision taken in the context of setting an eligibility criterion to be satisfied by a claimant on a fund making ex gratia payments. The eligibility criterion challenged in the present case was set sometime between August 2003 and January 2004. The submission for the respondents had throughout repeatedly blurred an important distinction. The court had been repeatedly reminded that the respondents had had regard to the allocation of scarce resources and budgetary constraints when taking the decision. The proceedings before the HCCC on 29 January 2003 made plain that the decision to limit the fund which was to be established to operate so as to benefit the living had been taken having regard to the Expert Group's assessment of the cost were the scheme to benefit all those persons who had been infected with the virus through NHS treatment, and to that extent cost considerations were a factor. It had been repeatedly suggested on behalf of the respondents that the sort of cost considerations mentioned by the Expert Group and considered by the Minister were relevant to the decision to fix the cut-off date at 29 August 2003. They were not. That was made clear by para 18 of Mr MacLeod's affidavit, which states as follows:

"According to the Expert Group figures, there are 2,835 people who were infected with hepatitis C and who have died. Many of these people, however, would probably have died relatively soon after receiving blood transfusions, given that transfusion recipients are likely to be seriously ill, and often elderly. In many of these cases they would not have been aware of any hepatitis C infection and would not have developed any symptoms. The Expert Group estimated that the overall take-up rate for payments would be 31%. However, it can be expected that the take-up rate from relatives and dependants of the deceased would be lower. If the take-up rate in relation to the deceased is assumed to be 255 - which is broadly consistent with the Lord Ross approach - this would mean an additional 700 people claiming payments. The Supplementary Financial Memorandum to the Smoking, Health and Social Care (Scotland) Act 2005 estimated that opening the scheme to persons who had died before 29 August 2003 would double the costs of the scheme and require additional expenditure in Scotland of г20 m."

Para 27 of his affidavit made perfectly clear that, whatever cut-off date was fixed, the single rationale for the selection of that date was that claimants who were alive on the day of the announcement of the Fund had, by virtue of that fact alone, an expectation of receiving a payment. There was no evidence either in Mr MacLeod's affidavit or elsewhere to support the suggestion that this very specific decision had been taken having regard to cost considerations. The only cost considerations pointed to by the respondents related to the general issue of whether the Fund should make provision for all those who had been infected.

[53] The use of the word "rationale" in para 27 of Mr MacLeod's affidavit was significant as it denoted a reasoning process: it was not a word normally used when a range of considerations had been in play. As Lord Slynn of Hadley remarked in R v Ministry of Defence ex parte Walker [2001] 1 WLR at p 812:

"It is not for the courts to consider whether the scheme with its exclusion is a good or a bad scheme, unless it can be said that the exclusion is irrational or so unreasonable that no reasonable minister could have adopted it."

The decision to impose 29 August 2003 as the cut-off date had been arrived at having regard to a specific rationale and was amenable to judicial review with a view to testing whether it could withstand logical, indeed rational, scrutiny. For the reasons previously given no rational explanation could be given for the selection of that date. It was conceded that the commencement date of the scheme for the petitioner's purpose had to be 29 January 2003.

 

Futility
[54] Section 28 of the 2005 Act was entirely prospective and permissive. It did not amount to a statutory imperative to introduce a scheme: all that was imperative was the requirement to include certain matters within any scheme introduced. The challenge which the petitioner had mounted to the respondents' decision to agree to the scheme's eligibility criterion was one which, if successful, would impact only upon the respondents' position: it was not being submitted that the petitioner's challenge would have any application beyond the actions of the respondents and, in particular, it was not submitted that it would affect the actions of the other administrations within the UK. The only effect in Scotland of a decision adverse to the respondents would be that the cut-off date of 29 August 2003 would be reduced. The petitioner's contention was that the appropriate date, on the basis of all the relevant information, should be 29 January 2003, which would benefit the petitioner. There was therefore no question of success for the petitioner exposing the Fund to claims which would double the financial liability of the Fund. The non-statutory scheme continued for certain purposes despite the adoption of the statutory scheme as claims made under the former would fall to be adjudicated under it. The petitioner's challenge was neither futile nor academic.

 

Delay
[55] The petitioner was content in response to refer to the following dictum of Lord Hope of Craighead in R (Burkett) v Hammersmith and Fulham London Borough Council [2002} 1 WLR 1593 at para 63:

"The important point to note for present purposes is that there is no Scottish authority which supports the proposition that mere delay ... will do. It has never been held that mere delay is sufficient to bar proceedings for judicial review in the absence of circumstances pointing to acquiescence or prejudice ..."

It was accepted that an application for judicial review should be brought as speedily as possible, but the court should take into account the situation in which time was allowed to pass and any prejudice suffered by the respondents through the lapse of time before proceedings commenced (Swan v Secretary of State for Scotland 1998 SC 479 per Lord President Rodger at p 487; Somerville v Scottish Ministers).

[56] The factual basis against which the issue of delay should be considered was as follows. The Fund came into being on 5 July 2004, and the terms of the scheme were not amenable to challenge before that date. The deceased had consulted solicitors in 2002 and legal advice and assistance had been applied for to consider whether he had any remedy in respect of his infection. He died on 7 March 2003. In July 2004 the petitioner consulted the same solicitors and work was carried out to investigate the nature of the scheme. She was advised of its existence and told that a claim by her in respect of the deceased's infection was excluded. In late July 2004 an application was made for legal advice and assistance in order to obtain the opinion of counsel. After funding was granted the opinion of counsel was requested. Further information was requested by counsel and, once this had been obtained, an initial opinion was provided in late 2004. The opinion was passed to the petitioner, who gave instructions in January 2005 that an application for judicial review should be presented. On 17 February 2005 an application for legal aid for proceedings for judicial review was made. The legal aid application was acknowledged by the Scottish Legal Aid Board on 21 March 2005 and further information was requested by them. A legal aid certificate was eventually granted on 30 June 2005 and accepted by the solicitors on 12 July 2005. Counsel was instructed in August 2005 to draft the appropriate petition. After counsel had obtained further information and carried out independent research he drafted the petition, which was delivered to the solicitors in October 2005. Sanction was then obtained to obtain the services of senior counsel. First orders in the judicial review petition were granted on 1 November 2005.

[57] The process from July 2004 until November 2005 had to be considered having regard to certain factors. The petitioner herself was not familiar with the process of litigation, far less that of judicial review, and did not have the resources to proceed without the benefit of legal aid. As a private individual she did not have resources to obtain information relevant to her claim. Her position fell to be contrasted with that of the respondents, a public authority. She had sought legal advice at an early stage. The provision of advice to her was far from straightforward and involved her advisers obtaining relevant information and assessing prospects against a complex and evolving legal background. Once advice had been given to the petitioner she gave instructions to pursue an application, the progress of which was thereafter dependent upon the processing of her legal aid application, which took from 17 February until June/July 2005. The petition was drafted within a matter of weeks and then presented. The petition did not involve interlocutory orders, and that meant that the need for such orders could not be prayed in aid when pushing for determination of the legal aid application. The factual subject matter was complex, involving consideration of various public statements which were not necessarily delivered in a concise and logical form. The legal assessment necessary was also complex and was made against the background of an evolving jurisprudence. The bringing of proceedings had not been subject to unnecessary or excessive delay. Matters had been progressed diligently in the context of a claim by a private individual dependent upon public funds against a public authority with resources available to it.

[58] Further, the respondents had not been prejudiced by the passage of time. They had not been prevented from carrying out their functions in relation to the Skipton Fund. They had not been required to give any undertaking not to act in a certain way pending determination of the application, or prevented from dealing with third parties. There was no suggestion that any associated functions of government had been affected. The effect of an order in favour of the petitioner would be limited. It would not call into question the validity of any payments made under the non-statutory scheme, nor would it operate to permit claims from persons beyond those Scottish claimants who died between 29 January and 29 August 2003. There was no information before the court that the order sought would cause any administrative difficulties for the Fund.

[59] Accordingly, the lapse in time between the coming into effect of the scheme and the presentation of the petition was not excessive having regard to the position of the petitioner, the complexity of the challenge and the process necessary to enable her to mount a challenge. The respondents had not acted to their detriment and there had been no interference with good administration.

 

Response for the respondents
[60] In answer to the petitioner's response it was submitted that, so far as cost considerations were concerned, it was not necessary for the respondents to produce "nice calculations to justify a particular decision" there was no basis for the petitioner's assertion that the cost of having a cut-off date of 29 January 2003 would be modest. If the court were to fix a new commencement date for the scheme it would be treading on financial and political considerations. All the evidence suggested that the Ministers had reasons for the chosen commencement date. The case of Somerville indicated that prejudice was not required for delay.

 

Discussion and conclusions
Rationality
[61] The test to be applied by the court to determine whether a decision under challenge can be held to be unreasonable or irrational should be so well known that it does not require repetition, but it may be helpful at this point to set out the two leading judicial dicta on the point. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1948] 1 KB 223 Lord Greene MR at p 234 described an unreasonable conclusion as "a conclusion so unreasonable that no reasonable authority could ever have come to it". In CCSU v Minister for the Civil Service [1985] 1 AC 374 Lord Diplock said at p 410F-H:

"By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' ... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is one that judges by their training and experience should be well equipped to answer, or else there would be something wrong with our judicial system"

Accordingly, the question for me to determine is whether the decision of the respondents to fix the cut-off date of 29 August 2003 for claims on the Fund in respect of deceased victims amounts to "a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

[62] The burden of the submission for the petitioner was that the only reason for the cut-off date of 29 August 2003 being fixed by the respondents was because they took the view that victims alive on that date had a legitimate expectation to an award. I do not think that view, which seems to proceed upon a narrow reading of Mr MacLeod's affidavit, is correct. It seems to me plain that another, and at least equally significant, consideration for the respondents was the need to have regard to limited financial resources when fixing the eligibility criteria of the scheme, as explained by Mr MacLeod at paras 8-10 of his affidavit. It is obvious that having a cut-off date would be bound to result in some savings to public funds, as otherwise claims on the fund could be made by all those who had been infected by the virus in the course of NHS treatment. It was not disputed on behalf of the petitioner that the respondents were entitled to restrict the categories of potential claimants and to fix a cut-off date. The petitioner could not have complained if claims on the Fund had been restricted to living victims, as originally envisaged by the respondents. Nor could she have complained if some other cut-off date which could be regarded as reasonable excluded her claim. It seems to me that what she is seeking to achieve in this application is a merits review of the respondents' decision to fix the cut-off date as 29 August 2003 and an amendment to the scheme altering the cut-off date to 29 January 2003. Although she does not in terms seek an order from the court that such an amendment should be made to the scheme, it was stated in the course of the submission on her behalf that I was being asked to give a clear indication of what the starting date should be (29 January 2003) in the hope that the respondents would "take the hint". I consider that if I were to do that I would be engaging in policy making and, in effect, conducting a merits review of the respondents' decision about the cut-off date.

[63] In my judgment the respondents were perfectly entitled to fix the cut-off date as 29 August 2003 for the reasons given in Mr MacLeod's affidavit, namely, having regard to the allocation of limited financial resources within the health budget and the fact that the setting-up of the Fund was publicly announced on that date. It might well have been that the choice of another date would also have been reasonable, but, even if that were the case, it would not assist the petitioner as she requires to demonstrate that the decision to choose 29 August 2003 was unreasonable or irrational and, therefore, unlawful, thus entitling me to reduce it. In holding that the respondents' decision to choose 29 August 2003 was reasonable I can do no better than say that I sustain in full the submission for the respondents on this point at paras 25 to 34 above.

 

Proportionality
[64] As was pointed out in the submission for the respondents, and accepted in the submission for the petitioner, proportionality is not currently a ground of review at common law. I am bound by the decision of the Inner House in Somerville v Scottish Ministers and must apply it to the circumstances of this case. I would in any event have taken the same view as the Inner House. The dictum by Lord Slynn of Hadley in Alconbury did not proceed on anything said in the course of submissions at the hearing in that case and was not concurred in by any other judge. I also accept the point made in the submission for the respondents that it is difficult to see how the recognised test of proportionality set out by Lord Clyde in De Freitas could be applied to a decision to select a particular date for eligibility under an ex gratia payments scheme.

 

Legitimate expectation
[65] I accept the submission for the respondents that none of the requirements set out in the four-part test in Coughlan has been satisfied in the present case. The submission for the petitioner was that the third requirement (reasonable reliance and detriment) did not require to be satisfied, but no reason was given why this should be so. I accept the submission for the respondents that the fact that it would be difficult for the petitioner to show reliance or detriment in the circumstances of this case does not lead to the conclusion that the petitioner should not have to, but instead leads to the conclusion that she does not enjoy a legitimate expectation.

[66] I do not think it can properly be said that the deceased had a legitimate expectation on 29 January 2003 to an ex gratia payment from any fund to be established, based on what the Minister said to the HCCC on that date. As at that date no definitive decision to set up a fund had been taken by the respondents. It might well have turned out that, because of one or both of the potential problems mentioned, or indeed for some other reason, the respondents would have later decided not to set up a fund. I find it difficult to see how the deceased could have had a legitimate expectation to a payment from a fund which it was not certain would be established. I appreciate that on 29 January 2003 the Minister stated:

"If somebody is alive now and has the virus because of NHS treatment they will get the initial payment."

Despite the apparently clear nature of that statement, I do not think it can be taken to have conferred upon a person alive on 29 January 2003 who had the virus because of NHS treatment a legitimate expectation to an initial payment out of any fund to be established. As I have pointed out above at para 7, a member of the committee pointed out that someone might die between then and the setting up of a fund, but the Minister did not follow up on that observation. He gave no clear and unambiguous representation that a victim alive on 29 January 2003 would be entitled to a payment. More importantly, he did not say that if such a person died his entitlement to a payment would transmit to a relation. The Ministerial statement of 29 January 2003 has to be read in its context, which was that he wished to target help at victims who were still alive, that he had not come to the level of detail of fixing a cut-off date and that he did not envisage a great deal of retrospection "as the principle of helping those who are still alive self-evidently means that that the date will have to be set at around the time that the help kicks in". As the submission for the respondents correctly pointed out, the details of any scheme to be made had yet to be worked out. When regard is had to the entirety of what the Minister said on this point I am of the view that the subsequent fixing of the cut-off date of 29 August 2003 was entirely consistent with it.

[67] Nor do I think it can be said that the statement was made to a small determinate group. It was made at a committee hearing within the Scottish Parliament and clearly was not intended to amount to an undertaking to any particular group of individuals. It would be dangerous if a Ministerial statement made in the legislature were to be held by the courts to amount to something which could found a legitimate expectation on the part of an individual or group. Ministers are entitled to have second thoughts and to change policy if they consider it appropriate to do so: they are politically accountable to the legislature, not legally accountable to the courts, for policy statements made by them in the legislature. Even if it be the case that the Minister in this instance changed his mind the cut-off date of 29 August 2003 was fixed, I am of the view that it cannot be said that there was no overriding public interest to justify him in departing from his earlier statement, and the fourth requirement of the Coughlan test would not be met should it be necessary to consider it.

 

Human Rights
[68] In my opinion the petitioner's human rights challenge to the decision does not, for the reasons given in the submission for the respondents, begin to get off the ground. On the assumption, which I do not think is correct, that a legitimate expectation is transmissible on death, the petitioner had no possession under A1P1; even if she did any interference with it cannot be said to be unjustified as it was within the margin of appreciation open to the respondents.

 

Futility
[69] Had I been in favour of the petitioner on any of the substantive grounds of challenge I would have had to consider whether a remedy should be refused on the ground of futility. The challenge which the petitioner makes is to the non-statutory scheme which existed before 24 April 2007. She wished to make an application to the Fund before that date and says that she was prevented from doing so by what she claims was the unlawful cut-off date of 29 August 2003. Had the cut-off date been earlier than 7 March 2003 she would have been able to make an application. It was clear to the respondents, at the latest from the date of the bringing of the present petition, that the petitioner wished to bring a claim under the non-statutory scheme. Her claim would, therefore, in my view fall to be determined by the provisions of the non-statutory scheme. The statutory scheme brought into force on 27 April 2007 must have a cut-off date of 9 August 2003 as that is required in a provision in an Act of the Scottish Parliament which was not challenged as being ultra vires the respondents on the ground that it was incompatible with the Convention, but that statutory scheme is entirely prospective in nature. Had the petitioner's substantive challenge to the cut-off date been well founded it would, in my view, have entitled her to have made a claim under the non-statutory scheme and her application cannot therefore be described as futile.

 

Delay
[70] In light of the explanation provided in the form of a timeline on behalf of the petitioner I am of the opinion that the requirements for mora, taciturnity and acquiescence, which must depend on the particular circumstances of the case, have not been satisfied. It seems to me that this was complex case requiring investigation and research by way of preparation before a petition could be presented and that in the whole circumstances the petitioner cannot be said to have been dilatory. Accordingly, had I otherwise been in favour of the petitioner I would not have refused her a remedy on the ground of delay.

 

Decision
[71] For the reasons set out above I shall refuse this application to the supervisory jurisdiction of the court and dismiss the petition.


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