Medical Certificates and Dismissal For Want of Insistence

28 May 2010

The Inner House has issued its decision in Scottish Ministers v Smith [2010] CSIH 44. The case is an important reminder of the power of the Court to dismiss a reclaiming motion for want of insistence.

The case concerned a reclaiming motion in connection with a petition by the Scottish Ministers for a recovery order under the Proceeds of Crime Act 2002. When the hearing in the reclaiming motion was called, the respondent failed to appear. A medical certificate relating to the respondent was shown to the court. It was left, without a covering letter, with the security staff of the court on the morning that the reclaiming motion was due to call.

The Court noted that a medical certificate to the effect that a person is unfit to attend court is not conclusive evidence of that fact. The Lord Justice Clerk stated that:

"In every case it is for the court to decide, from the certificate and any other relevant circumstances, whether it is persuaded that the person concerned is unfit to attend and, if so, what the consequences of that should be." (para 7)

The court proceeded to consider all the relevant surrounding circumstances. A material factor, in the opinion of the Court, was that prima facie the respondent's grounds of appeal were irrelevant. She challenged, for reasons that the court found difficult to follow, certain of the Lord Ordinary's critical findings of fact, which the Court deemed to have been entirely justified by the evidence. The respondent also asserted, contrary to authority, that a criminal charge and conviction are a prerequisite to any civil confiscation of property and assets.

The Court held that the respondent's failure to attend could not be excused and that the appropriate disposal was to refuse the appeal for want of insistence.

The Case is a timely reminder of the discretionary power of the court to dismiss a case for want of insistence, despite the tendering of a medical certificate.

Ruth Crawford QC and John MacGregor, of Axiom, appeared for the Scottish Ministers

A report of the decision is available at:
http://www.scotcourts.gov.uk/opinions/2010CSIH44.html