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Book reviews

14 December 15

Review of The Nobile Officium (Thomson)

by David J Dickson (review editor)

The Nobile Officium

The Extraordinary Equitable Jurisdiction of the Supreme Courts of Scotland

Stephen Thomson

PUBLISHER: AVIZANDUM

ISBN: 978-1904968337

PRICE: £48

This is the first book which has systematically considered, dare it be said categorised, the nobile officium and its use before the courts.

As the title indicates, and as Lord Hope sets out in his foreword, the equitable jurisdiction of the Supreme Courts in Scotland is clear in its ambition, but what is less well known and understood, whether by practitioner or academic, is how the jurisdiction developed and from where it originated. In this concise text, Dr Thomson offers a clear and accessible description of the areas of law within which the jurisdiction has been deployed, and equally, where it has been found incompetent.

It is equally clear that, absent previous scrutiny and study, the author has structured a book around concepts which make the understanding of the equitable jurisdiction more straightforward but, more importantly perhaps, easier for the practitioner to navigate its practical application. As such the book ranges across trusts, judicial factors, curators, bankruptcy and related disciplines, statutory omissions, and the criminal sphere, ending with a description of limitations of the jurisdiction and conclusions.

It is often regarded as a jurisdiction which may be accessed in the absence of any other remedy or, as described by the Lord Justice Clerk in Lang, Petitioner 1991 SCCR 138 at 142, the High Court "may grant such orders as may be necessary... for the purposes of preventing injustice or oppression". However, as those who have sought to invoke the jurisdiction will recognise, the jurisdiction is not boundless but, as was said in the criminal sphere (but may equally apply in general), is confined to circumstances which are "extraordinary or unforeseen, and where no other remedy is provided by law" (Lord Justice General Emslie in Anderson v HM Advocate 1974 SLT 239 at 240). As the author illustrates, where a statutory remedy is available (whether directly or by implication) and a perceived conflict arises, only where it can be said, as was stated in La Torre v Lord Advocate 2008 JC 72 at 74,  that "circumstances... have arisen are of a kind which has not been anticipated by the makers of the legislative framework within which the court must otherwise operate", can the relief provided by the nobile officium be invoked.

As such, within its limited scope of application, if it is to be found, then one will assuredly find it referenced in this authoritative text.

David J Dickson, solicitor advocate

 

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