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Judicial review – protective court proceedings to secure Employment Tribunal claims

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Judicial review – protective court proceedings to secure Employment Tribunal claims


06 August 2019

Anela Anwar v Advocate General and ECHR [2019] CSIH 43

The Inner House refused a reclaiming motion in which it was held that an applicant in employment Tribunal proceedings could competently raise protective proceedings in the courts to obtain diligence. Lord Drummond Young held (1) that protective proceedings could be raised in the courts for diligence notwithstanding that the courts have no jurisdiction to hear the merits of the dispute, (2) the purpose of such an action is to obtain diligence as interim security as the other litigation proceeds (3) the basis for the action is the proceedings in another forum (4) Part1A of the Debtors (Scotland) Act 1987 addressed the requirements of diligence but did not affect the substance of parties rights, (5) the existing law of diligence and the requirement to raise ancillary proceedings for interim security was not “excessively difficult” and there was no breach of the EU law effectiveness principle, and (6) there was no breach of the equivalence principle and the appropriate comparator was another employment-related claim. The Lord President issued a dissenting opinion.

Ruth Crawford QC appeared for the Advocate General.