Section 27D Appeals: When the 7‑Day Limit Runs from Issued Interlocutors Where Earlier Lodging Is Procedurally Impossible

1. Introduction

This Inner House decision ([2026] CSIH 34, Lord Clark) concerns a procedural problem in Scottish judicial review: the interaction between the statutory 7‑day appeal limit in section 27D(2) of the Court of Session Act 1988 and the practical and rules-based requirement that a reclaiming motion must be directed against, and accompanied by, the relevant interlocutor.

The petitioner and reclaimer (referred to below as the petitioner) sought to reclaim a Lord Ordinary’s ex tempore decision of 27 April 2026 in a judicial review petition against (1) The Chief Constable of the Police Service of Scotland and (2) The Police Investigations and Review Commissioner. The interlocutor, although dated 27 April 2026, was not signed and issued until 6 May 2026.

A preliminary issue arose: was the reclaiming motion late (because it was lodged on 13 May 2026, more than 7 days after 27 April), and if so could it be received? The respondents opposed receipt.

2. Summary of the Judgment

  • The court granted the petitioner’s motion to have her reclaiming motion received.
  • The court held that, in the exceptional circumstances where the signed interlocutor was issued after the putative 7‑day period from the ex tempore decision, the reference in section 27D(2) to “the day on which the Court makes its decision” could be fairly and pragmatically interpreted so that time runs from the date the interlocutor was signed and issued (here, 6 May 2026).
  • The request for urgent disposal of the reclaiming motion was refused.
  • The respondents were found liable to the petitioner in the expenses occasioned by the motion.

3. Analysis

3.1 The statutory framework and the procedural tension

Section 27D(2) provides that, after an oral permission hearing, the applicant may appeal “within the period of 7 days beginning with the day on which the Court makes its decision”. The respondents argued this started on 27 April 2026, the date of the ex tempore decision.

Lord Clark accepted that, on the face of the language, an ex tempore decision could be treated as the “decision” for the purpose of starting time, especially where parties are informed of the decision and main reasons on the day ([8]). However, he identified a more fundamental obstacle: under Chapter 38 of the Rules of the Court of Session (RCS), a reclaiming motion is framed as a request for review of an interlocutor (RCS 38.1, 38.5; Form 38.5), and must be accompanied by a reclaiming print containing “the whole pleadings and interlocutors in the cause” (RCS 38.5(2)(a)) ([9]).

The court was advised that, without the interlocutor, court offices would not accept the reclaiming motion ([10]). Therefore, if the statutory clock ran from 27 April, the petitioner could be placed in a position where compliance was procedurally impossible through no fault of her own.

3.2 The key holding: interpreting section 27D to avoid impossibility and unfairness

The decisive reasoning is at [18]:

If the interlocutor required to competently lodge the reclaiming motion is not issued until after the 7‑day period from the ex tempore decision, treating the ex tempore date as the absolute start point would fail to comply with natural justice. In those exceptional circumstances, section 27D can be interpreted so that time runs from the date when the interlocutor was signed and issued.

On the facts, the interlocutor was signed and issued on 6 May 2026, and the reclaiming motion was lodged on 13 May 2026, i.e. within 7 days of that date. Accordingly, the reclaiming motion was treated as timeous.

This is a notable development because the court did not rest its decision primarily on dispensing powers. Instead, it adopted a fair, pragmatic interpretation of the statutory start date where strict literalism would deny an effective right to appeal.

3.3 How the cited authorities influenced the decision

(a) Cleland v Clark 1849 11 D 601

Lord Clark noted Cleland v Clark 1849 11 D 601 at p 614 for the proposition that there is a basis for treating the date of a decree as when the interlocutor is signed rather than the interlocutor’s stated date ([10]). While the case is old, it supported the conceptual legitimacy of linking operative effect to signature/issuance rather than the hearing date.

(b) Parachute Regiment Charity v Hughes' Executor (No 2) [2020] SAC (Civ) 24, 2021 SLT (Sh Ct) 91

Lord Clark relied on Parachute Regiment Charity v Hughes' Executor (No 2) [2020] SAC (Civ) 24, 2021 SLT (Sh Ct) 91 to recognise modern practice: interlocutors are not necessarily signed and issued on the date the decision is made ([10]). This practice reality sharpened the risk of injustice if statutory appeal periods are treated as running irrespective of issuance delays.

(c) Philp v Highland Council [2021] CSIH 28; 2022 SLT 514

The court considered whether section 27D applied at all where the Lord Ordinary dismissed the petition as time-barred. By reference to RCS 58.7(1)(a)(ii), and as explained in Philp v Highland Council [2021] CSIH 28; 2022 SLT 514 at para [20], the question of extending the section 27A time limit is part of the permission stage ([11]). Therefore, an appeal engaging time-bar reasoning can fall within the section 27D permission-appeal route and its 7‑day limit.

(d) Beggs v Scottish Ministers [2017] CSIH 62

Beggs v Scottish Ministers [2017] CSIH 62 was central to the discussion of whether court rules can “cure” lateness under section 27D. Beggs treated section 27D as a strict statutory limit not extendable via RCS 38.10, because RCS 38.10 relieves only failures to meet rule-based “reclaiming days” and cannot override a statutory time bar ([12]).

Lord Clark did not overturn Beggs, but his reasoning effectively sidestepped the need for a dispensing extension by holding that, in the exceptional “no interlocutor issued” scenario, the appeal period should be treated as running from issuance ([18]). This approach reduces the harshness highlighted in Beggs without expressly re-characterising the statutory limit as extendable.

(e) Hume v Nursing and Midwifery Council [2007] CSIH 53, 2007 SC 644 and Neilly v Nursing and Midwifery Council [2019] CSIH 32, 2019 SC 565

The court examined the different line of authority on statutory time limits in (non-judicial review) appeals. In Hume v Nursing and Midwifery Council [2007] CSIH 53, 2007 SC 644, the statutory time limit was treated as subject to the court’s procedural rules where the relevant rules incorporated the statutory time requirement, allowing the general dispensing power in RCS 2.1(1) to operate ([13]).

Neilly v Nursing and Midwifery Council [2019] CSIH 32, 2019 SC 565 reaffirmed Hume and imposed a demanding threshold for dispensing: driven by the weight of statutory limits and Art. 6.1 ECHR, relief should be granted only where the appellant did all they reasonably could to bring the appeal on time and, if not, as soon as possible thereafter ([14]).

Lord Clark highlighted an important structural difference: the Neilly/Hume route depended on a specific rule (then RCS 41.26(1)(a)) stating the appeal must be lodged within the time prescribed by statute—making lateness a breach of a “provision in these Rules” and engaging RCS 2.1(1) ([15]). Chapter 38 contains no equivalent “incorporation” rule, creating uncertainty as to whether RCS 2.1(1) can apply at all.

Although Lord Clark suggested that, if Neilly applied, the petitioner would likely meet that test given the issuance delay ([17]), he ultimately resolved the matter through statutory interpretation rather than dispensing.

3.4 The unresolved issue: what are “the reclaiming days” in RCS 38.10?

Lord Clark identified an open question with practical significance: RCS 38.10 allows receipt “outside the reclaiming days”. “Reclaiming days” are defined in RCS 38.1(3) as “the days within which an interlocutor may be reclaimed against”. While RCS 38.2 (under the heading “Reclaiming Days”) regulates reclaiming days under the rules, it does not explicitly address statutory limits like section 27D. Lord Clark considered it arguable that “reclaiming days” in RCS 38.10 might include statutory reclaiming days/time limits, but noted the need for future clarification ([16]).

This observation is important even though it was not determinative: it flags that procedural architecture may be incomplete where tight statutory time limits coincide with modern delays in issuing interlocutors.

3.5 Impact

  • Protection against procedural impossibility: The decision establishes that, in exceptional circumstances where a reclaiming motion cannot be competently lodged because the necessary interlocutor has not been signed/issued, the section 27D(2) clock can run from issuance.
  • Natural justice as interpretive constraint: The court treated denial of any practical ability to appeal as inconsistent with natural justice, and used that to justify a pragmatic construction of “the day on which the Court makes its decision”.
  • Operational consequences for court administration: The case highlights the risk created when interlocutors are intentionally held back for administrative convenience (here, liaising over hearing dates). That practice can collide with hard statutory time limits.
  • Future litigation on RCS 38.10 / RCS 2.1: By exposing tension between Beggs and Neilly/Hume approaches, the decision may prompt further appellate clarification—or procedural rule reform—to ensure coherent treatment of late section 27D appeals.

4. Complex Concepts Simplified

Ex tempore decision
A decision delivered orally at the end of a hearing. Parties may know the outcome immediately, but the formal written order may follow later.
Interlocutor
The formal court order recording the decision. Under the reclaiming procedure, the appeal is framed as a review of a specific interlocutor (with a stated date), and procedural rules may require it to be exhibited in appeal papers.
Reclaiming motion
The mechanism for asking the Inner House to review an interlocutor of the Lord Ordinary.
Permission stage (judicial review)
A preliminary filter in which the court decides whether a judicial review should be allowed to proceed. Issues like time limits under section 27A can be determined at this stage.
Natural justice
A core fairness principle. In this case it was used to reject an interpretation of section 27D that would make an appeal practically impossible due to court-issued delay.

5. Conclusion

[2026] CSIH 34 addresses a sharp procedural edge in section 27D appeals. Where court practice results in the interlocutor being signed and issued only after the apparent statutory appeal window from an ex tempore decision has expired—and where the interlocutor is required for competent lodging—the Inner House held that section 27D can be interpreted so the 7‑day period runs from issuance of the signed interlocutor.

The decision is significant not because it relaxes section 27D generally, but because it recognises that statutory urgency cannot be allowed to extinguish appeal rights in circumstances where the appellant is prevented, by procedure and administration, from lodging a competent reclaiming motion at all.