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Petition of AB for Judicial Review of the decision of the Sheriff Principal of Lothian and Borders dated 26 November 2025 refusing to investigate a complaint concerning the conduct of a curator ad litem (Court of Session)
Factual and Procedural Background
The Petitioner sought judicial review of the Sheriff Principal’s decision dated 26 November 2025 refusing to investigate a complaint concerning the conduct of a court-appointed curator ad litem. [1][2]
The complaint arose from family proceedings concerning residence and contact arrangements for the Petitioner’s child. The sheriff appointed a curator ad litem, and the Petitioner raised concerns about the curator’s independence, treatment of evidence, and instruction of a court-appointed psychologist. [3] The sheriff ultimately granted residence to the Petitioner’s former partner and refused the Petitioner’s claims for residence and contact. [4]
The Petitioner’s appeal was refused as incompetent because the relevant orders had expired when the child reached 16, leaving no live issue. [5] The Petitioner had separately complained to the Sheriff Principal, who first invited further factual information and later concluded that the complaint did not justify an investigation. [6][2]
The substantive judicial review hearing took place on 5 June 2026. The Petitioner represented herself, and the Respondent was represented by Attorney [McLean]. [7]
Legal Issues Presented
- Whether the Respondent erred in law by refusing to investigate the complaint. [8][9]
- Whether a legitimate expectation arose that the complaint would receive substantive consideration and whether refusal to investigate was procedurally unfair. [10]
- Whether relevant considerations were disregarded or irrelevant considerations taken into account. [11]
- Whether the decision was irrational. [12]
- Whether the Petitioner failed to pursue an alternative remedy. [13]
Arguments of the Parties
Petitioner’s Arguments
- The Sheriff Principal misunderstood the scope of his jurisdiction and wrongly treated himself as unable to investigate complaints concerning a curator ad litem. [14][15]
- The first response created a legitimate expectation that further information would lead to an investigation, on which the Petitioner relied by preparing and submitting further material. [16][17]
- The Respondent failed to consider relevant matters, including the alleged conduct of the curator, the psychologist’s instructions, the lack of regulatory oversight, and the effect on the fairness of the proceedings. [18]
- The Respondent took irrelevant account of matters such as the Petitioner’s failure to pursue certain issues at proof or cross-examine witnesses. [19][20]
- The decision was irrational because it appeared to create a regulatory gap and adopted inconsistent positions by first considering the complaint and later asserting that there was no power to investigate. [21][22]
Respondent’s Arguments
- The complaint primarily challenged the curator’s evidence, recommendations, and conduct within proceedings, rather than disclosing professional misconduct. [23]
- The allegations lacked sufficient factual detail, and the Sheriff Principal had properly considered and summarised the material provided. [23]
- The correspondence did not create a legitimate expectation that an investigation would occur; it merely left open reconsideration if sufficient further information were supplied. [24][25]
- The curator was not appointed through the statutory local-authority panel scheme, and neither the Sheriff Principal nor solicitor-regulatory bodies necessarily had straightforward jurisdiction over the complaint. [26]
- Alternative remedies existed through the sheriff proceedings, the appeal process, and potentially other complaint routes. [27]
- Even if an error were established, reduction should be refused because the same outcome would inevitably have followed and would serve no practical purpose. [28]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 | Error of law and jurisdiction. | The Court rejected the argument that the Sheriff Principal misunderstood his jurisdiction. [14][29] |
| Padfield v Minister of Agriculture [1968] AC 997 | Error of law in the exercise of public power. | The Court found no such error in the Sheriff Principal’s assessment. [14][29] |
| R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 | Protection of legitimate expectations arising from clear representations. | No clear and unambiguous promise of an investigation had been made. [30][31][32] |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 | Irrationality in the Wednesbury sense. | The decision contained a rational chain of reasoning and did not approach the irrationality threshold. [22][33][34] |
| Re Finucane’s Application for Judicial Review [2019] UKSC 7 | An authority may depart from a clear undertaking only where it is fair to do so. | The principle was accepted, but the Court found no clear undertaking to investigate. [24][35][31] |
| School and Nursery Milk Alliance Ltd v Scottish Ministers [2022] CSOH 11; 2022 SLT 262 | Legitimate expectation and fairness. | The Court applied the principle but concluded that the correspondence promised only further consideration. [24][35] |
| WA v Secretary of State for the Home Department [2017] CSOH 30 | Availability of alternative remedies in judicial review. | The Court concluded that the alternative remedies identified by the Respondent had been pursued or were unavailable. [27][36] |
| McCue v Glasgow City Council [2014] CSOH 124; 2014 SLT 891 | Limits on supervisory jurisdiction where an alternative remedy exists. | The Court held that the alternative-remedy objection was unfounded on the facts. [27][36] |
| CA v Western Isles Council [2024] CSOH 103; 2024 SLT 1324 | Requirement to pursue or exhaust an alternative remedy. | The Court found that the Petitioner had exhausted the remedies relied upon by the Respondent. [27][36] |
| Amid v Kirklees Metropolitan Borough Council [2001] EWCA Civ 582 | Discretion to refuse relief where the outcome would inevitably be the same. | The Court discussed, but did not accept as its primary basis, the Respondent’s submission on inevitable outcome. [28][37] |
| Kaagobot Ltd v City of Edinburgh Council [2023] CSOH 10 | Judicial restraint and the court’s discretion in judicial review. | The Court stated that it should not trespass on the Respondent’s decision-making process. [38][39] |
| City of Edinburgh Council v MO’s Curator [2016] CSIH 46 | The court retains control to ensure that curators ad litem act properly and independently. | This supported the conclusion that the Sheriff Principal could consider complaints about a curator, while still deciding that this complaint did not warrant further investigation. [40] |
Court’s Reasoning and Analysis
The Court held that the Sheriff Principal had considered the complaints at both stages rather than refusing jurisdiction. He assessed whether the information disclosed apparent professional misconduct and remained open to further material. [29][41]
The Sheriff Principal had authority, under statute and common law, to regulate the practice and procedure of the courts in his sheriffdom. His decision to conduct an initial assessment before committing public resources to an investigation was lawful. [42][43]
The reference to lacking power concerned reopening or reviewing the sheriff’s and Appeal Court’s decisions, not considering whether the curator’s conduct warranted investigation. That distinction was legally correct. [44]
No legitimate expectation arose because the first response did not promise an investigation. It promised only that further information would be considered, and that undertaking was fulfilled when the Sheriff Principal reviewed the additional material and explained why it did not justify investigation. [31][32][45]
The Court found that the Respondent had engaged with the relevant complaints. The Petitioner’s disagreement with the conclusions did not establish a failure to consider relevant material. Matters concerning the ability to challenge evidence during the proof were relevant because the complaints related to evidential and procedural issues within the underlying litigation. [46][47]
The decision was not irrational. The reasoning was coherent: the curator could be subject to consideration, the complaints could have been addressed in the litigation, the sheriff and Appeal Court had dealt with the proceedings, and the further material did not identify misconduct warranting investigation. [33][34]
The absence of appointment through the local-authority panel scheme did not mean that the curator was wholly unregulated. The court retained some control over court-appointed curators, and the Sheriff Principal had exercised that responsibility by considering the substance of the complaints. [48][40]
The alternative-remedy objection failed. The Petitioner had raised her concerns in the sheriff proceedings and appeal, could not use the local-authority route because the curator was not appointed by that authority, and had complained to the Sheriff Principal. [36]
The Court also stated that, had unlawfulness been established, reduction would not have been granted because the curator’s conduct was already under investigation by the Law Society of Scotland, making remission to the Sheriff Principal pointless and unlikely to provide material benefit. [49]
Holding and Implications
The petition was refused. The Court repelled the Petitioner’s pleas-in-law, sustained the Respondent’s fifth and sixth pleas-in-law, and awarded expenses in favour of the Respondent. [50][51]
The direct consequence was that the Sheriff Principal’s refusal to investigate remained undisturbed and the Petitioner was ordered to pay the Respondent’s expenses. [50][51] No broader implication or new precedent was stated in the opinion.
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