Legal catch-all will help spare the Executive's blushes

It seems that the Scottish Executive is having more than a little difficulty in complying with time limits. It should come as little surprise that the small matter of a legal deadline for lodging an appeal in the slopping-out case happened to be lodged a few days late when we were originally told that the new parliament building would be completed in August 2001.

To refresh memories, particularly those in the Executive, it was faced with the prospect of huge compensation claims earlier this year after Lord Bonomy ruled that slopping-out in jails amounted to degrading treatment. Last month, Lord Bonomy awarded 2,450 to Robert Napier, a prisoner who claimed the practice breached his human rights.

The Executive announced it would appeal. It should have lodged papers within 21 days of the original decision by the court. However, this has not been done. Perhaps it entrusted Reliance to get the appeal there in time?

As always, there have been calls for heads to roll, with Cathy Jamieson, the justice minister, taking the brunt of it. While she may be able to hide behind the fact that the remit of justice minister is the administration of justice rather than the lodging of an appeal, it does highlight that something is wrong. All the more so following the Reliance fiasco when you would expect the minister to make sure credibility could be slowly restored. To issue press releases, however, advising that the decision was to be appealed and then miss the deadline smacks of incompetence at all levels.

Thankfully for the Executive, the Rules of Court take into account such incompetence. The courts can relieve a party from the consequences of a failure to comply with a provision in the rules shown to be due to mistake, oversight or other excusable cause on such conditions, if any, as the court thinks fit. In other words there is a catch-all when errors are made. It is highly unlikely any judge would decide not to use his discretion to allow the appeal to be lodged late.

The ultimate test is whether allowing the appeal to continue would prejudice Napier’s position. He is no longer slopping out and is receiving legal aid. A court would be unlikely to hold that Napier’s position would be prejudiced by the appeal.

Moreover, the issue is an important policy matter. It opens the Executive up to substantial claims from former inmates - and possible claims from prison officers who have had to supervise the degrading treatment.

So all in all, come today no doubt there will be a lot of grovelling before the judge, asking the court to use its discretion to allow the appeal to continue. In all likelihood it will be granted. The Executive will have to pay for the costs of that procedure, but then again, what’s a few hundred pounds of taxpayer’s money in the grand scheme of things?