The nobile officium: still relevant, still useful
What exactly is the nobile officium? Can it still be used? When and how? The author of a new book on the nobile officium encourages practitioners to understand its proper role
Having spoken to a number of practitioners about the nobile officium, I get the sense that there is quite a vague understanding of what it is and when it can be used. The jurisdiction is more practical and relevant than many people realise. Far from being confined to scholarly or antiquarian interest, it can offer customised solutions in a diverse array of circumstances. The key is to know when and how to use it. As Lord Hope wrote in the foreword to my book on the nobile officium, “if the jurisdiction is to serve its purpose, it needs to be properly understood and to be applied in the right way... the courts need to be encouraged to use it”. I would agree, and add that practitioners need to be encouraged to use it, and to use it properly.
The nobile officium is the extraordinary equitable jurisdiction of the Court of Session and the High Court of Justiciary. It is a power of the court to give a remedy in two situations. First, where there is no legal rule adequately covering a given situation. Secondly, where there is a legal rule governing a situation, but its application would be unduly excessive, oppressive or burdensome. The court can use the nobile officium to grant any remedy or make any order.
The jurisdiction is versatile and can be useful in almost any area of law. Historically, it found repeated application in the Court of Session in relation to trusts, judicial factors, bankruptcy and sequestration, and statutory omissions. It was also used in relation to a diverse range of miscellaneous applications. In the High Court, it has been used to address situations of incompetency, unlawfulness, irregularity and bias in criminal proceedings, excessive and oppressive sentences, errors and other procedural issues. In both the Court of Session and the High Court, it is competent to petition the nobile officium to challenge a finding of contempt of court and is generally a standard way of doing so.
Some examples can be given to indicate the versatility of the nobile officium. In the Court of Session, it has been used to appoint new trustees where the underlying offices of ex officio trustees ceased to exist. It has been successfully invoked to confer additional powers or authority on trustees where this would facilitate the intention of the truster, such as the power to purchase, borrow, sell or grant a lease. The court has allowed for the rectification of inadvertent errors in Gazette notices with the aim of protecting creditors in bankruptcy process. Also in the field of bankruptcy, the nobile officium has been used to grant discharge in situations of procedural impasse or where the statutory machinery has not operated as envisaged.
Public officers have been appointed on an interim basis in the absence of a statutory basis for interim appointment with the intention of facilitating orderly public administration. A variety of statutory omissions have been provided for by exercise of the nobile officium. It has also been used to authorise subscription of documents in substitution for the rightful signatory where his or her signature could not be obtained, and to correct errors, clerical mistakes and procedural omissions.
In the High Court, the nobile officium has been used to address statutory omissions in the criminal sphere. It has been used to direct a sheriff to act according to law and process, as where there had not been compliance with statutory requirements. It has also been used to substitute one offence for another where a sheriff had decided in relation to an offence not included in a particular statute. The nobile officium has been successfully invoked to quash an excessive (though competent) sentence on the basis that it was unrealistic to expect the accused to have been able to pay a particular sum of compensation. There has also been successful challenge where an accused was denied the opportunity to make representations to a sheriff.
It is important to recognise that the nobile officium is an exceptional remedy for use in marginal cases. Given the extraordinary nature of the jurisdiction, the courts exercise it with caution. Judges have been reluctant to define the exact circumstances in which the nobile officium is suitable for application, but a number of restrictions have been set out which limit the circumstances in which petition should be made. Indeed, there has sometimes been a tendency to make speculative petitions to the nobile officium as a last effort to achieve a desired outcome, but these have often failed because they fell foul of restrictions which had already been set out in the case law.
First, there should typically be some exceptional or unforeseen circumstances requiring redress. A number of cases have failed on precisely this point, and failure to construct a persuasive argument on such circumstances is an unnecessary line of weakness for the petitioner. A notable exception is in contempt of court cases, where the nobile officium is a standard means of appealing against a decision or sentence.
Secondly, there should be a sense of urgency, injustice or need justifying an extraordinary response from the court.
Thirdly, the petition should generally not request something that contravenes statutory intention. That includes petitioning for a remedy or order which would contradict an express or implied statutory provision, extend the scope of such a provision, or require a person to act contrary to a statutory duty. The courts' treatment of the attempted extension of statutory time limits has not been entirely consistent.
Fourthly, there should be no other remedy available to the petitioner. It will generally be incompetent to petition the nobile officium where a remedy was previously available but was not utilised, for the court will typically regard this as a situation in which a remedy was provided. In cases where any of these restrictions will be contravened, it might not be worth the time and effort of petitioning the jurisdiction.
The nobile officium used to be invoked with greater frequency, and there are a number of reasons why there has been a trend of general decline. One of those is that a number of statutory omissions have since been accounted for by subsequent statutory reforms. However, as new statutes are enacted, the potential for more “gaps” to appear continues, so it should not be assumed that this trend will end with the nobile officium becoming obsolete. If practitioners find themselves in a situation where a statute does not readily cover a set of circumstances, it might be considered whether the nobile officium could offer a remedy.
Nowadays, the jurisdiction sees more activity in the High Court, with the number of petitions to its nobile officium in double figures annually, though this number has more than halved over the past 10 years. There can again be a range of reasons behind the greater volume of petitions to the nobile officium in the criminal than the civil sphere. However, it is worth pointing out that, as there is no equivalent in summary procedure of the finality provision found in s 124 of the Criminal Procedure (Scotland) Act 1995 for solemn proceedings, the nobile officium has had the potential to be used as an additional avenue of appeal in summary cases. This was noted and criticised in the Carloway review, which recommended that there should be a statutory provision attaching finality to summary appeal decisions to close off this additional avenue of redress. At the time of writing, this was reflected in s 81 of the Criminal Justice (Scotland) Bill, which will insert a s 194ZA in the Criminal Procedure (Scotland) Act 1995.
In the Court of Session, petitions have been in single figures for a number of years. Interestingly, the rate of success in the High Court has fallen from 48% in 2006 to almost 12% in 2013 (the most recent year for which I have figures), while in the Court of Session the success rate has been anything between 0% and 100% since 2000. Doubtless it has been so variable in the Court of Session given the low number of petitions made annually, but in any event, its success rate is in general much higher than in the High Court. I am confident that the low success rate in the High Court is also partly explained by petitions being made in circumstances in which they stand little prospect of success, and that the low number of applications overall is related to the general lack of knowledge and awareness of the nobile officium. If practitioners are encouraged to use the jurisdiction, and to use it properly, these trends can improve.
If a petitioner can genuinely point to extraordinary or unforeseen circumstances requiring urgent or necessary redress, avoid the restrictions placed on the jurisdiction by the courts, and draw on existing authorities (of which there are many) to guide the way in which the case is constructed, there is no reason why one cannot petition the nobile officium with success. Practitioners across all areas of law can benefit from becoming more familiar with the rules and case law on this remedial avenue. I would be delighted to assist practitioners thinking of using the nobile officium, and to hear the experiences of those who have successfully or unsuccessfully tried to use it in the past, and can be contacted at firstname.lastname@example.org.
Stephen Thomson is an Assistant Professor at The Chinese University of Hong Kong, and legal adviser to the Ombudsman of Hong Kong. He holds a PhD in Scots law from the University of Edinburgh and is author of the book The Nobile Officium: The Extraordinary Equitable Jurisdiction of the Supreme Courts of Scotland (Avizandum, 2015).