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AA v Secretary of State for Business, Energy and Industrial Strategy [2018] CSOH 54

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AA v Secretary of State for Business, Energy and Industrial Strategy [2018] CSOH 54

11 June 2018

The petitioner obtained a substantial award against her former employers in the employment tribunal. She was unable to recover any sums from them. In this petition for judicial review the petitioner argued that, had she been able to effect arrestment on the dependence against her former employers at the time of raising the tribunal proceedings, she would been able to recover the sums awarded. She claimed that the United Kingdom, by failing to make provision for employment tribunals to grant diligence on the dependence, was in breach of its Community law obligation to provide the petitioner with a remedy compatible with the principles of equality (that the procedures governing actions for safeguarding rights under Community law should be no less favourable than those governing similar domestic actions) and effectiveness (that the applicable procedures should not render practically impossible or excessively difficult the exercise of Community law rights).

Lord Tyre held that the petitioner could have raised court proceedings in order to obtain diligence on the dependence. There was no rule of Scots law that precluded that; it did not fall foul of the plea of lis alibi pendens since the two sets of proceedings would not be concerned with the same subject-matter; and, even if there had been a rule of Scots law rendering actions raised solely for the purpose of obtaining diligence on the dependence incompetent, Community law would require that rule to be set aside where a person sought to vindicate a Community law right. Interim protection was therefore available for all actions. It followed that there was no breach of the principle of equivalence; and the need to resort to court to obtain diligence was not practically impossible or excessively difficult, so there was no breach of the principle of effectiveness either.

David Johnston QC appeared for the Secretary of State.