Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 92
P883/13	OPINION OF LORD BANNATYNE in the Petition of CAPTAIN KENNETH MACINNES Petitioner; for Judicial Review of decisions of Forth Ports Limited and Answers for FORTH PORTS LIMITED Respondents: ________________

Petitioner Ellis QC; Mackinnons

Respondents: J Cormack, Solicitor Advocate; Pincent Masons LLP

28 May 2014

Introduction

[1] This judicial review came before me for a first hearing. Mr Ellis QC appeared on behalf of the petitioner. Mr Cormack, solicitor advocate, appeared for the respondents.

[2] The petitioner is a self-employed pilot authorised in terms of section 3 of the Pilotage Act 1987 ("the 1987 Act"). He has been authorised within the respondents' area since 17 January 1996. The respondents are Forth Ports Limited. They are the competent harbour authority within the meaning of section 1 of the 1987 Act for the River Forth. They have authorised the petitioner to act as a pilot within their area of jurisdiction as a harbour authority. The petitioner is authorised as a senior first class pilot.

[3] The pilotage authorisation issued by the respondents and accepted by the petitioner is dated 17 and 24 January 1996. The authorisation is subject to the terms and conditions of (i) the conditions of pilotage authorisation and (ii) the Pilotage Code of Practice ("the Code"). The Code may be amended from time to time by agreement between the respondents and the Association which is appointed to act on behalf of pilots in this regard. The Forth Pilots Association is the representative body of the pilots on the Forth. The Code as amended from time to time therefore has effect as between the petitioner and the respondents as a matter of contract by virtue of the agreement contained in the authorisation and the agreement as to the terms of the Code reached from time to time between the respondents and the Association acting on behalf of the petitioner.

The Legislative and Contractual Framework

The 1987 Act

[4] The provisions of the 1987 Act so far as relevant to the present matter are:

Provision of pilotage services

"Authorisation of pilots

3.-(1) ...a competent harbour authority may authorise such persons to act as pilots in or in any part of the area in relation to which its duty under section 2(1) above is exercisable as it considers are suitably qualified to do so; and such an authorisation shall specify the area within which it has effect and may specify that it only has effect in relation to ships of a particular description...

(5) A competent harbour authority may suspend or revoke an authorisation granted by it under this section if it appears to it -

(a) that the authorised person has been guilty of any incompetence or misconduct affecting his capability as a pilot;

(b) that the authorised person has ceased to have the qualifications required from persons applying for authorisation by it under this section or has failed to provide evidence that he continues to have those qualifications...

(6) Before suspending or revoking an authorisation under subsection (5)(a) or (b) above, a competent harbour authority shall give written notice of its intention to do so to the authorised person, stating the reasons for which it proposes to act, and shall give him a reasonable opportunity of making representations."

The Code

CODE OF PRACTICE

"6. DISCIPLINARY/REVOCATION PROCEDURE

6:1 SURRENDER/SUSPENSION/REVOCATION OF AUTHORISATION AND SUSPENSION OF PILOTAGE DUTIES

The efficiency of pilotage services in the Forth depends to a large extent on a high standard of service, co-operation and discipline. Forth Ports and the Pilots recognise that it may become necessary from time to time to take action towards individual Pilots whose performance or conduct is unacceptable or contrary to the efficiency of pilotage services.

The aims of this procedure are as follows:-

(a) To clarify the rights and responsibilities of Forth Ports and the Pilots in respect of actions resulting from breaches of rules and expected standards of (a) competency and/or (b) character and/or (c) conduct affecting or which may affect capability as a Pilot.

(b) Consistency and fairness of application.

(c) To provide the basis of an agreement between the Pilots and Forth Ports as to the circumstances in which the suspension and/or revocation of a pilotage authorisations may be appropriate by defining standards of (a) competence and/or (b) character and/or (c) conduct affecting or which may affect capability as a Pilot and by setting out circumstances in which both parties are agreed that a Pilot is no longer suitably qualified to be authorised under the Pilotage Act 1987 ("the 1987 Act").

(d) Without prejudice to the provisions of the 1987 Act, to set out a procedural framework which provides for suspension and/or revocation of a pilotage authorisation in circumstances, which have been defined and agreed by Forth Ports and the Pilots...

6:1.2 INCOMPETENCE/MISCONDUCT

In accordance with the terms of Section 3(5)(a) of the 1987 Act, a pilot's authorisation is liable to suspension and/or revocation if Forth Ports is satisfied that the pilot has been guilty of any incompetence or misconduct affecting his capability as a pilot. In this Clause 6, all references to "incompetence" and "misconduct" shall be construed accordingly.

Without prejudice to the provisions of the 1987 Act and for the purposes of illustration only, the following may be treated as matters of incompetence or misconduct:

(i) failure to exercise proper skill, care, attention and diligence;

(ii) violating a safety rule, which endangers the pilot or other people and causes damage to vessels, goods and/or equipment;

(iii) where a pilot gives up pilotage duty and/or leaves a vessel whilst on duty while the vessel is within the pilotage area and thereby endangering the safety or persons and property, unless the Master of the vessel gives the pilot express permission to do so or at the approved landing area to which he has been engaged to pilot the ship;

(iv) misconduct in accordance with the provisions of Section 21 of the 1987 Act or attending for or being on duty under the influence of alcohol and/or drugs;

(v) endangering the safety of persons and property by failing to comply with directions, bye-laws and procedures specified in this Code of Practice as may be amended from time to time between Forth Ports and the Association of Forth Pilots which Association shall act in this capacity on behalf of the pilots.

In the event that Forth Ports reasonably considers that a case does not involve incompetence or misconduct affecting the capability of a pilot, it shall refer the matter to the Association of Forth Pilots to be dealt with as such Association may think fit.

Following an initial review of the facts (as referred to in 6:2.3) by the Chief Harbour Master and a pilot member of the Pilotage Management Committee and taking into account comments from the pilot concerned, it may be decided that a letter from the Chief Harbour Master advising of concerns raised by the incident is sufficient...

6:2 PROCEDURES IN ALL CASES OF INCOMPETENCE/MISCONDUCT

Except where the alternatives are specifically stated below, the following procedure shall apply in all cases of incompetence or misconduct:-

6:2.1 In serious cases Forth Ports may require a pilot to immediately cease pilotage duties under his authorisation pending a formal inquiry to consider the representations of the pilot concerned by giving written notice to the pilot stating:-

(i) he is suspended from carrying out pilotage duties with effect from the date of receipt of such notice;

(ii) details for the reasons for the immediate suspension of pilotage duties; and

(iii) that Forth Ports may suspend/revoke the authorisation.

Forth Ports may immediately suspend a pilot from carrying out pilotage duties in the event of Forth Ports, in good faith, considering it necessary to preserve safety of navigation in the Forth or for any other reason where Forth Ports, in good faith, considers it necessary having regard to its own statutory duties.

Immediate suspension of pilotage duties will not prejudice the rights of a pilot to make representations in terms of Section 3(5) of the 1987 Act.

6:2.2 In cases where a pilot is involved in any collision, grounding or accident or significant incident involving a vessel under pilotage the pilot shall be obliged to deliver to Forth Ports' Chief Harbour Master a written report providing the information requested on the form agreed between Forth Ports and The Golden Lion Pilotage and Marine Services Company Limited within 24 hours of such accident and/or incident...

6:2.3 In all cases where the Forth Ports' Chief Harbour Master acting reasonably considers appropriate he, together with one of the pilots from the Pilotage Maintenance Committee, will investigate the circumstances of the alleged incompetence or misconduct without delay.

6:2.4 In all cases a preliminary inquiry will take place as soon as practically possible and the pilot involved will receive written notification from Forth Ports requiring him to attend and stating the following:-

(i) the date, time and place of the inquiry,

(ii) that he may be accompanied by another pilot or in cases, which are reasonably capable of resulting in legal proceedings, by a legal adviser.

The inquiry shall also be attended by Forth Ports Chief Harbour Master and the Pilot from the Pilotage Management Committee who investigated the circumstances of the incident. The inquiry will be in accordance with the requirements of natural justice and will be fact-finding and informal. As soon as possible after the inquiry its findings will be passed to the Convenor of the Disciplinary Committee.

6:2.5 If the Convenor considers it appropriate a disciplinary hearing will be convened and the following procedure shall apply:-

(i) Forth Ports shall given [sic] written notice by recorded delivery to the pilot (at the address last intimated in writing to Forth Ports) advising him that a hearing is to be held and inviting him to reply within a specified time limit (not less than six working days after issue of such notice) indicating whether or not he wishes to make representations at a disciplinary hearing.

(ii) In the event of the pilot not replying within the time limit specified in the notice or in the event of him indicating that he does not wish to make representations at a hearing Forth Ports may proceed to take such measures as it, acting reasonably, considers appropriate without further process.

(iii) If the pilot replies within the time limit indicating that he does wish to make representations at the disciplinary hearing, Forth Ports will notify him of a date for the hearing, which date shall be as soon as practicable, and shall advise that the pilot may make oral or written representations at the hearing and that he may be accompanied by another pilot and/or legal adviser.

(iv) the disciplinary hearing shall be convened and heard by the Disciplinary Committee, which consists of the Convenor, two Pilots from the Pilotage Management Committee and two of Forth Ports' Managers from the Marine Division and they shall review all facts, which may be relevant to the allegations of incompetence or misconduct in reaching a final decision. The hearing shall be conducted in accordance with the requirements of natural justice and shall be fact-finding and informal in nature. The rules of evidence which would apply in a Scottish court of law need not be adhered to.

(v) After closure of the hearing the Convenor and members of the Disciplinary Committee shall consider all the information available and shall then make a recommendation to Forth Ports regarding disciplinary measures which may either be notified to the pilot in writing or immediately communicated to him by Forth Ports.

(vi) The recommendations which may be made are as follows:-

(1) that the allegations are baseless and that no further action be taken,

(2) that a letter from the Chief Harbour Master advising of concerns raised by the incident is sufficient,

(3) a caution to last for a period of one year,

(4) a warning to last for a period of three years,

(5) a reprimand to last for a period of five years,

(6) suspension/revocation of the pilot's authorisation under Section 3(5)(a) or (b) of the 1987 Act in accordance with the provisions below.

6:2.6

(i) Before suspending or revoking an authorisation, Forth Ports shall give written notice by recorded delivery as aforesaid to the pilot stating that Forth Ports intends to suspend/revoke the authorisation as appropriate and providing details of the reasons for its intention.

(ii) In addition to the terms of the preceding paragraph such notice shall also invite the pilot to reply within a specified time limit (not less than six working days after issue of such notice) indicating whether or not he wishes to make representations at a formal hearing.

(iii) In the event of the pilot not replying within the time limit specified in the notice or in the event of him indicating that he does not wish to make representations at a formal hearing Forth Ports may proceed to suspend or revoke the authorisation as it sees fit without further process.

(iv) If the pilot replies within the time limit indicating that he does wish to make representations at a hearing, Forth Ports will notify him of a date for the hearing, which date shall be as soon as practicable and shall advise that the pilot may make oral or written representations at the hearing and that he may be accompanied by a pilot and/or legal adviser.

(v) The hearing shall be convened and heard by two Executive Directors of Forth Ports and they shall consider all facts, which may be relevant in reaching a final decision as to the suspension or revocation of the authorisation. The hearing shall be in accordance with the requirements of natural justice and shall be fact-finding and informal in nature. The rules of evidence which would apply in a Scottish court of law need not be adhered to.

(vi) After closure of the hearing the Directors of Forth Ports shall consider all the information available and shall then reach a decision, which may either be notified to the pilot in writing or immediately communicated to him. In the event of the authorisation being suspended or revoked, such notification or communication shall specify that the suspension or revocation shall take effect immediately and in the case of suspension of authorisation shall specify the period of suspension."

The background to the present proceedings

First incident

[5] On 21 March 2012, the petitioner was the pilot in charge of the vessel Nord London within the Imperial Dock, Leith. There was an incident while the petitioner was the pilot in charge. The petitioner and the Master of the vessel both submitted reports about the incident by completing the respondents marine report form. Within the report form the petitioner described the incident as follows:

"Sailed Nord London (loa 179.9m x beam 28.4m, drafts 4.53m fwd 5.90m aft, standard rudder, no bowthruster, stop/start engine, dead slow 5 knots) from north side of the Imperial Dock, Leith, with tugs Seal Carr secured centre forward and Oxcar centre aft. Wind about 280 x 12-15 knots.

Aborted two attempts at entering the Imperial Cut and agreed with the master that if a third attempt was unsuccessful we would return to the berth and await the availability of more powerful tugs. During the third attempt the starboard shoulder contacted the north side of the cut entrance. While moored in the lock the Chief Officer inspected the hull and took photographs. The Master stated that there was some scoring of the hull and an indent of 3 to 4 cm in way of frames 185 to 190.

The towage supplied met the current guidelines but I feel that it was not adequate for a vessel of this beam." (see: production 6)

As is normal practice in the case of such incidents, the circumstances were considered by the local harbour master who discussed them with the petitioner. They were also discussed by the Pilotage Management Committee which is comprised of managers from the respondents' marine division and officers of the Association of Forth Pilots.

Second incident

[6] On 24 April 2012, the petitioner was the pilot in charge of the barge UR99 when it was departing Burntisland West Dock under the towage of two tugs. There was an incident while the petitioner was the pilot in charge. The petitioner and the master of the barge both submitted reports about the incident by completing the Marine Report From. Within the report form the petitioner described the incident as follows:

"When barge UR99 was departing Burntisland West dock, under towage of Roseberry Cross and Oxcar, the forward starboard corner contacted the dock wall, just inside the gate recess. The corner of the hull and the rubbing strake were set in and the towing wire, which hung in a bight around the hull, appeared to have been damaged by the contact.

The barge crossed to Leith and was moored at 10/12 Harbour by 1845 without further incident." (see: production 8)

The circumstances of the incident were considered by the local harbour master who discussed them with the petitioner and they were also discussed by the Pilotage Management Committee.

Third incident

[7] On 18 August 2012, the petitioner was the pilot in charge of the vessel the Orarose, a chemical tanker, which was approaching Grangemouth Lock in a flood tide. There was an incident while the petitioner was the pilot in charge. The petitioner completed a marine report form. Within the report form the petitioner described the incident as follows:

"When approaching Grangemouth lock inbound, at HW-3b 15m, the flood tide was found to be stronger than anticipated and the vessel was carried westwards in the bellmouth as her speed reduced. The master and I agreed that we should abort the approach and the engine was put full astern. The vessel turned to port and her stem contacted timbers towards the top of the east lead-in jetty.

The vessel then moored in the lock and on 1 North without further incident. In the lock the bow was checked by lock side personnel and after mooring on 1 North, with the help of the Boatmen, by the Master and me. About three metres above the waterline the bow plating has been set in horizontally, but not punctured, and the bulbous bow appeared not to have contacted the lead-in.

This vessel is in class B for arrival at the lock 3 hours before high water on springs. In view of her high tonnage (sdwt 7050) in relation to her length (loa 103m) and her modest bow thruster (300kW) I recommend that she be moved to class C." (see: production 12)

An investigation of this incident was carried out on behalf of the respondents' Chief Harbour Master ("CHM") by the Harbour Master Forth Inner because of the two preceding incidents and because this incident was more serious and a marine investigation form completed. As part of that investigation Harbour Master Forth Inner discussed the circumstances with the petitioner. The matter was discussed by the Pilotage Management Committee, and the Chairman of the Association of Forth Pilots discussed all three incidents with the petitioner.

Fourth incident

[8] On 14 October 2012 the petitioner was the pilot in charge of the vessel Pu Tuo San, a crude oil tanker, when she was bearthing at the Hound Point Oil Loading Terminal operated by BP in the Forth and located in proximity to the Forth Bridges.

[9] There was an incident while the petitioner was pilot in charge. The petitioner completed a marine report form. The petitioner described the incident in the marine report form as follows:

"Berthing starboard side alongside Hound Point 1 with Dalmeny fast port shoulder, Hopetoun fast port main deck aft and Cramond, after acting as drogue tug centre lead aft, not secured but assisting by staying near the starboard shoulder.

Dalmeny had been pushing on but was stopped. The bow of the vessel was approaching the terminal at too great a speed so I asked the Cramond to push on the starboard bow. I was surprised at the time it took the tug to get into position but I may have under-estimated how far forward of the push position she had been lying. Dalmeny was asked to come off the hull to pull, while Cramond came on the hull and initially pushed 60% before being asked for working full, while the ship's rudder was put hard to port and the engine dead slow ahead, but the ship landed heavily on the east berthing dolphin. Mooring was completed by 1430 without further incident.

I had agreed with the master that, when stopping off the terminal, prior to the swing, the Cramond would be released from aft and the crew were instructed to do so. I thought I heard the Cramond report that the line had been dropped in the water and was being recovered, prior to the tug moving to the starboard bow as the swing began. However, as the swing began, the Cramond called to ask if there was a problem aft as the line had not yet been released, so I then realised that the Cramond's call must have been a request that the line be dropped. I stressed to the master the urgency of releasing the line and he and I watched from the port bridge wing as the crew struggled to lift the eye from the bitts and release the stopper. The Cramond followed the stern as the vessel swung and the line was finally released. As a consequence, at the conclusion of the swing the vessel was further west and north of the terminal than planned." (see: production 14)

An investigation of this incident was carried out on behalf of the CHM by the Harbour Master Forth Inner and follow up action taken as below described. As part of that investigation, the Harbour Master Forth Inner discussed the circumstances with the petitioner. BP regarded this incident as being very serious because of the nature of the operations carried out at Hound Point and because damage of this nature to the berth could result in it being closed temporarily with substantial operational impact given the key significance of the terminal for operations in the North Sea by means of the Forties pipeline system which terminates at Hound Point.

[10] Following a performance review hearing on 25 October 2012 by joint decision of the respondents CHM and the chairman of the Association of Forth Pilots, the petitioner was placed on a performance review monitoring process for a period of 12 months from that date ("the performance review"). Confirmation of this decision was given to the petitioner by letter of that date, the decision having already been communicated to him orally at the conclusion of the performance review hearing that day, which the petitioner attended and took part in, without objection. He was accompanied to the hearing by another pilot, namely Jerry Purvis. The hearing related to the four above marine incidents during 2012 which resulted in damage caused to or by vessels under the pilotage of the petitioner. The CHM arranged the performance review hearing because a number of incidents had taken place over a short period of time giving rise to significant concerns about the competence of the petitioner and about the safety of navigation on the Forth in respect of vessels under the petitioner's charge. The petitioner had gone from a position of having no damage incidents as a pilot at least over recent years of service on the Forth to a position of having had four such incidents within a period of eight months. Although none of the four incidents caused very substantial damage the CHM believed that they had the potential to do so and contact incidents involving ships generally carry significant risk of serious injury to persons and property. Standing the petitioner's previous exemplary record as a pilot, the CHM did not consider it appropriate to proceed straight to the disciplinary procedure in terms of the Code, provided the concerns could be considered and addressed by means of performance review monitoring. At the conclusion of the hearing, following an adjournment for consideration, the petitioner was advised that any further incidents during the performance review period may result in the disciplinary procedure in terms of the Code being implemented. The petitioner acknowledged that he understood this.

[11] In relation to these first four incidents over and above the description of the incident provided by the petitioner each marine report form prepared by him set out the petitioner's position regarding: the location of the occurrence; vessel details; the category of incident; sea and wind conditions; general weather conditions and tidal information.

[12] These four incidents are when spoken of together referred to hereafter as "the earlier incidents".

The fifth incident

[13] On 12 February 2013, a further incident occurred when the vessel MV Winter, a tanker, was under the charge of the petitioner as pilot in the approaches to Grangemouth Lock. The petitioner submitted a marine report form in relation to this incident and therein set out his description of the incident:

"Winter was due Hen & Chickens 0130 for two tugs to berth at E1 jetty in Grangemouth. The vessel's engine was stopped once west of the Torry beacon for the approach to Hen & Chickens. An outbound vessel was in the lock with both tugs so, after passing Hen & Chickens around 0115, Winter proceeded slowly into the Diversionary Channel. Roseberry Cross was made fast forward at 0120.

As the Forth approached to secure aft the vessel was set towards the West buoy, which passed very close along the starboard side. The Forth then reported that the buoy had become attached near the vessel's rudder post. An attempt by the Forth to free the buoy with a grappling hook was unsuccessful so a mooring line was used. At about 0145 the buoy was freed from the Winter and secured to the tug. It was agreed that Forth should transfer the buoy to the west lead-in jetty, where it was secured.

Forth made fast aft at 0215 and the vessel was moored in the lock by 0230 and on E1 jetty by 0330. Forth's master stated that there was no damage to the tug, the buoy had not contacted the Winter's propeller and that the buoy had damage to its light and solar panel." (see: production 19)

Later the same day, the respondents suspended the petitioner from all duties as a pilot and wrote to the petitioner to intimate this and that an investigation would be conducted in line with the procedures contained within the Code.

[14] By letter to the petitioner dated 14 February 2013 he was advised that a preliminary inquiry in terms of the Code had been arranged to take place on 20 February 2013.

[15] On 20 February 2013, a preliminary inquiry was conducted by the respondents CHM and the vice chairman of the Association of Forth Pilots. The petitioner was accompanied by another pilot namely John Pretswell. The preliminary inquiry found, among other things: (1) that contact with the buoy was due to the MV Winter being navigated into the diversionary channel with too much speed to the point that the pilot ran out of sea room while waiting for the outbound vessel to clear the lock; and (2) that the petitioner's decision to put the first available tug forward was a strategy that would have been appropriate to a much smaller vessel and less aggressive tidal conditions and had the tug been put on the stern there would have been no need to swing the vessel into the channel. In accordance with clause 6:2.4 of the Code, the findings of the preliminary inquiry were passed to the convenor of the disciplinary committee including details of the earlier incidents and the performance review hearing.

[16] The convenor considered it appropriate to convene a disciplinary hearing. The petitioner was advised of this by letter dated 1 March 2013 which also invited him to indicate whether he wished to make representations at a disciplinary hearing in accordance with clause 6:2.5 of the Code. The letter further advised the petitioner that the hearing would consider all relevant facts, his judgment and actions on 12 February 2013 and the earlier incidents which resulted in the petitioner being on a 12 month performance review. In response, on 4 March 2013, the petitioner intimated that he wished to make representations at a disciplinary hearing. No objection was raised to the earlier incidents or the performance review being considered.

[17] The disciplinary hearing took place on 18 March 2013. The disciplinary committee comprised the convenor, Admiral Roger Lockwood, the CHM and another manager from the respondents' marine division and the chairman and vice chairman of the Forth Pilots Association. The petitioner was again accompanied by Mr Pretswell. During the disciplinary hearing, the facts of the earlier incidents leading to the performance review and the further incident on 12 February 2013 were all reviewed and discussed with the petitioner. No objection was raised to the inclusion of the earlier incidents and the performance review in the discussion. During the hearing the petitioner accepted that his performance was not up to standard for a senior first class pilot (see: p13 of the minutes, production 38). He also stated that he did not feel that he was being treated unfairly (see: p15 of the minutes).

[18] After closure of the hearing and following due consideration, the disciplinary committee unanimously recommended to the respondents that the petitioner's authorisation as a pilot under the 1987 Act should be revoked. This recommendation and the reasons for it were communicated to the petitioner by letter dated 28 March 2013. In those reasons, the earlier incidents were taken into account expressly under reference to the performance review and along with the fifth incident. The disciplinary committee which made this unanimous recommendation comprised five persons with expertise in marine matters including Admiral Lockwood, who is independent of both the respondent and the Forth Pilots Association and the two officers of the Association who are both themselves highly experienced pilots on the Forth. The petitioner made no objection to the whole recommendation and reasons being submitted to the respondents for consideration.

[19] By letter dated 29 March 2013, the petitioner requested a delay to the disciplinary process in order to allow his medical condition to be clarified. He stated that he recognised that it might well be necessary for him to retire on the basis of his medical condition. The respondents agreed to defer further consideration of the matter for a reasonable period. However, no relevant medical information became available and by letter dated 15 May 2013 the respondents advised the petitioner that the matter would be considered at the next meeting of the respondents' board. The petitioner has subsequently intimated that he considers himself medically fit for duty.

[20] The board under exclusion of two executive directors considered the recommendation of the disciplinary committee and all relevant facts and decided that it was minded to concur with that recommendation. Accordingly, written notice stating that the respondents intended to revoke the petitioner's authorisation as a pilot and providing reasons for that intention was given by letter dated 30 May 2013 in terms of clause 6:2.6 of the Code. In those reasons, the earlier incidents were taken into account expressly under reference to the performance review and along with the fifth incident as part of the whole circumstances leading to the conclusions that there had been incompetence affecting the petitioner's capability as a pilot and that the revocation of his authorisation was necessary (see: production 50). The petitioner was invited to reply within six working days indicating whether or not he wished to make representations at a formal hearing.

[21] The petitioner responded by letter dated 4 June 2013 stating that he wished to make representations at a formal hearing and advising that he had referred these matters to his insurers.

[22] A formal hearing before two executive directors, being those who had not taken part in the Board's consideration of the recommendation of the disciplinary committee, was arranged to take place on 16 September 2013, that date being fixed in consultation with the petitioner's solicitors to suit the availability of the petitioner's counsel. However, the hearing did not proceed on that date following intimation on 3 September 2013 of the petition in the action before me.

Relief sought by the petitioner

(a) Reduction of the purported recommendation of the disciplinary committee intimated to the petitioner by letter dated 28 March 2013;

(b) Reduction of the purported notice of intention to revoke the petitioner's authorisation as a pilot dated 30 May 2013;

(c) Interdict against the respondent from proceeding with any disciplinary procedure on the basis of either of the said purported recommendation of the disciplinary committee or of the said purported notice of intention to revoke the petitioner's authorisation as a pilot and without prejudice to the generality from taking any further steps to revoke the petitioner's authorisation on the said bases and in particular proceeding with the hearing on 16 September 2013; and for interim interdict

(d) To interdict the respondent from relying on any or all of the following incidents:

1. Nord London on 21 March 2012

2. UR99 on 24 April 2012

3. Orarose on 18 August 2012 and

4. Pu Tuo San on 14 October 2012

to support a finding of incompetence on the part of the petitioner as forming the factual basis in whole or in part for such a finding.

(e) Reduction of the decision to suspend the petitioner from duty intimated by letter dated 12 February 2013

(f) Declarator that continued suspension of the petitioner from duty under clause 6:2.1 of the Code of Practice based only on the incident on 12 February 2013 would be unlawful; and to interdict the respondents from continuing to suspend the petitioner from duty based on that incident or on the incidents detailed as above.

(g) Declarator that revocation or suspension of the petitioner's authorisation as a pilot under section 3(5) of the 1987 Act based only on the incident involving the MV Winter which occurred on 12 February 2013 would be a decision at which no reasonable decision maker could arrive properly instructed and therefore unlawful.

[23] Before turning to the submissions of parties I would wish to thank both Mr Ellis and Mr Cormack for their very helpful notes of argument and their detailed oral arguments which expanded thereon.

The submissions on behalf of the petitioner

[24] Mr Ellis commenced by making certain preliminary submissions relative to the status of a pilot and the issue of vicarious liability for the actings of a pilot in light of the terms of section 16 of the 1987 Act which he submitted maintained the legal position as it was prior to the 1987 Act. Section 16 provides as follows:

"The fact that a ship is being navigated in an area and in circumstances in which pilotage is compulsory for it shall not affect any liability of the owner or master of the ship for any loss or damage caused by the ship or by the manner in which it is navigated".

[25] Mr Ellis firstly referred me to Esso Petroleum Co Ltd v Hall, Russell & Co Ltd 1988 SLT 874. Lord Jauncey in his speech having fully analysed all of the authorities regarding vicarious responsibility for pilots (see: page 886L to page 891D) then at 891D-F set forth the following general rule:

"My Lords, it may be stated as a general rule that the employer of a qualified licensed pilot is not vicariously responsible to the owner of a ship damaged by his negligence while under pilotage. All the authorities support such a rule and none appear to contravert it. The basis of the rule is twofold namely: (1) the pilot is an independent professional man who navigates the ship as a principal and not as a servant of his general employer and (2) S.15(1) makes him a servant of the ship owner for all purposes connected with navigation.

In stating this rule I am not going so far as to say that an employer of a licensed pilot could never be responsible for his negligent navigation. It is theoretically possible that such an employer could himself assume the obligation of safe pilotage although at the moment I have very great difficulty in envisaging a situation in which such an event could occur."

[26] The foregoing observations were made in relation to a previous Act and accordingly Mr Ellis referred me to Ocean Gas (Gibraltar) Ltd v Port of London Authority ("the Cavendish") [1993] 2 Lloyds Rep 292 which confirmed that with respect to the employer of a licensed pilot the position relative to liability remained the same under the 1987 Act.

[27] Mr Ellis on the basis of these authorities advanced certain propositions:

1. It was well settled that harbour authorities had no vicarious liability for pilots and that applied even in areas of compulsory pilotage.

2. A pilot was the holder of an independent office.

3. A harbour authority had a duty to provide a suitably qualified pilot, however, if they did that they could not be found liable for any negligence on the part of the pilot.

4. There was nothing in the statutory duties which created any difficulties for a harbour authority which had a proper disciplinary procedure. It was his submission that if a harbour authority had a procedure which provided for qualifications for pilots and proper provisions for dealing with issues regarding their competence then if the harbour authority followed that procedure there was no real risk of liability being imposed upon an authority for the error of a pilot.

With respect to the statutory regime Mr Ellis submitted that only the provisions regarding authorisation of pilots (as set out earlier) were of any importance to the current proceedings, although he would refer to certain other provisions in relation to arguments put forward on behalf of the respondents

[28] Mr Ellis then turned to make certain general observations regarding the Code.

[29] First, he submitted that paragraph 6 of the code was at the heart of the case. [30] Second, he submitted that in terms of 6:1.2 of the Code the CHM was given discretion to bring matters to a conclusion following an initial review of the facts in terms of 6:2.3. Looking to the introduction to paragraph 6:2, Mr Ellis emphasised that it was expressly provided that the procedures in 6:2 were to apply "in all cases of incompetence."

[31] Then with reference to 6:2.1 he said this: what was envisaged here was something that applied only in serious cases and where in good faith what was intended was interim suspension until the matter could be taken through the disciplinary procedure. This covered what happened during the dependence of proceedings leading possibly to revocation. In support of this position he relied on first the structure of the Code and secondly the fact that 6:2.1 said this: the respondents "may require a pilot to immediately cease pilotage duties...pending a formal inquiry".

[32] Mr Ellis then drew to my attention certain provisions regarding timing within the disciplinary procedure. In terms of 6:2.2 a pilot involved in a collision is required to provide the CHM with a written report within 24 hours of the incident. 6:2.3 then authorises the CHM where reasonably appropriate to investigate circumstances of alleged incompetence. Mr Ellis emphasised that the investigation was to be carried out "without delay". Mr Ellis then highlighted that the preliminary inquiry was to be held "as soon as practically possible" (see: 6:2.4) Thereafter "as soon as possible" its findings should be passed to the Convenor of the Disciplinary Committee. He submitted that, in terms of the disciplinary procedure, time was clearly a matter of importance and that matters were to be dealt with quickly.

The petitioner's core contention
[33] Against that background Mr Ellis turned to develop the petitioner's position as foreshadowed in the petition. The petitioner's core contention can be summarised as this: it is contrary to the Code and unlawful to take into account in the disciplinary proceedings following upon the fifth incident, the earlier incidents, or any of them.

[34] The basis for this contention was: there is a mandatory procedure in the Code and it had not been gone through in relation to each of the earlier incidents and in any event had not been gone through at the appropriate time in terms of the Code.

[35] The above contention was the basis for seeking the relief sought in terms of (a) to (d) above.

[36] The cornerstone of the petitioner's argument under this head was that the correct interpretation of the Code had been authoritatively decided by the Inner House in Cooper v Forth Ports Plc 2011 SC 760 ("the Cooper case").

[37] So far as the factual matrix of the Cooper case is concerned, it is set out at paragraphs 5 to 9 of the opinion of the court:

"[5] During March 2009 three vessels under the pilotage of the reclaimer were involved in incidents, while they were approaching the Port of Grangemouth. On 4 March 2009 the reclaimer was undertaking the pilotage of a barge, BD6074, which was being towed by motortug Napia. The barge struck and damaged a main channel buoy, which required to be written off. The reclaimer was on the tug when the collision occurred. On 14 March 2009, the reclaimer was undertaking the pilotage of a container ship, the Wec Van Eyck, when the ship struck a fender. Both were damaged and damage was also caused to a shore crane. Both incidents were reported to the chief harbour master, but no disciplinary procedures under Cll 6.2.3, 6.2.4 or 6.2.5 were taken against the reclaimer in respect of either incident.

[6] On 23 March 2009 a third incident occurred. The reclaimer was piloting the Frisian Trader, a container ship loaded with containers, which were stacked four to five high and presented a high profile to the wind. The master of the Frisian Trader executed his own navigational manoeuvres, despite being in an area of compulsory pilotage. He ordered a tug to assist in manoeuvring the Frisian Trader into a berth at Grangemouth Docks. The ship was to proceed through a lock into a part of the docks referred to as the Eastern Channel, and then through a narrow gap, known as the East Cut, into the Grange Dock. The ship made contact with the wall at the lock causing minor damage. The reclaimer advised that a second tug be ordered, but the master of the Frisian Trader declined to accept that advice. Thereafter on leaving the lock the ship was pushed into some dolphins by the force of the wind. At that point, having formed the view that the wind had moderated, the master took the ship ahead across the Eastern Channel to the East Cut. There he decided that, because of the prevailing wind, the Frisian Trader should go astern into the Eastern Channel. For that manoeuvre he required the tug to disengage and to move forward. The reclaimer advised against moving the tug, but the master declined to accept that advice. While the tug was disengaged, the wind forced the Frisian Trader into another vessel, the Fionia Swan. The reclaimer did not notify the duty harbour master of either of the occasions when the master of the Frisian Trader declined to act as he advised. A subsequent investigation concluded that the power available from the bow thrusters of the Frisian Trader was equalled by the force of a 20 knot wind blowing broadside against the high profile container load and that the bow thrusters proved inadequate in the circumstances. The Fionia Swan contained petroleum products. The collision between the two vessels took place within a closed dock area, close to a refinery.

[7] Later on 23 March 2009 the reclaimer received an email from the respondents' chief harbour master stating that preliminary investigations into the incident involving the Frisian Trader had been completed; that, considering the serious nature of the incident and taking into account other recent incidents, the respondents had decided to suspend the reclaimer from pilotage duties with immediate effect, pending a full investigation and inquiry; and that the said investigation and inquiry would be in line with the procedures in the code of practice. A letter from the chief harbour master, dated the following day, confirmed to the reclaimer that he had been suspended from all pilotage duties pending further investigations into the events surrounding the Frisian Trader and the subsequent contact with the Fionia Swan. The letter further explained:

'Forth Ports consider it necessary to suspend you not only due to the serious nature of this incident, but also your involvement in the incident on 14 March 2009 with Wec Van Eych [sic] and the incident on 4 March involving the tug and barge'.

[8] On 26 March 2009, the chief harbour master wrote again to the reclaimer. In his letter he referred to the ongoing investigation into the incident involving the Frisian Trader. He informed the reclaimer that as required by Cl 6.2.3 of the code of conduct he had investigated the circumstances of the alleged incompetence/misconduct with the pilotage management committee member Captain D Kelley. The letter informed the reclaimer that he was required to attend a preliminary inquiry on 1 April 2009. That was an inquiry to which the provisions of Cl 6.2.4 of the code of conduct applied. The letter of 26 March 2009 made no reference to either of the earlier incidents.

[9] The preliminary inquiry into the third incident took place on 1 April 2009 and was conducted by the chief harbour master and Captain Kelley. The reclaimer was present and was accompanied by a friend, who is a senior pilot. The preliminary inquiry's written finding and conclusions were passed to the convenor of the disciplinary committee, Rear Admiral Roger Lockwood, who decided to convene a disciplinary hearing under Cl 6.2.5 of the code of conduct. He also sent a copy of the report of the preliminary inquiry's findings and conclusions to the reclaimer. While the preliminary inquiry's findings referred to the occurrence of the two earlier incidents, those incidents were not investigated by the chief harbour master and Captain Kelley and not inquired into during the course of the preliminary inquiry."

The core of the argument put forward on behalf of the reclaimers in the Cooper case, so far as relevant to the present proceeding, was as follows:

"[18] The main thrust of the submissions of senior counsel for the reclaimer was that if the three incidents were to figure in the disciplinary proceedings against the reclaimer, it was necessary for each incident to be investigated separately; and, in any event, necessary for each of them to be investigated promptly and thoroughly in accordance with the disciplinary procedures in the code of conduct. That had not occurred in respect of the first and second incidents, even although the chief harbour master had received a report about each incident within 24 hours of its occurrence. Neither incident had been the subject of an investigation by the chief harbour master, carried out without delay, under Cl 6.2.3 of the code of conduct; or a preliminary inquiry, held as soon as practically possible, under Cl 6.2.4; or a disciplinary hearing under Cl 6.2.5. It was clear from the provisions of the code of conduct that any incident involving circumstances giving rise to allegations of incompetence or misconduct should be investigated fully and without delay. Incidents could not be 'parked' on one side by the respondents and resurrected later on, when it might not be possible to investigate them fully, for example, because a vessel involved had sailed. Nor could such incidents be referred to in passing, and without proper investigation, when another incident was being investigated in accordance with the provisions of the disciplinary procedures. The detailed procedures laid down in the code of conduct were designed to recover evidence quickly and intended to protect pilots, by ensuring that any incident that fell to be considered by the respondents, after they had received a recommendation from the disciplinary committee, had been fully and promptly investigated."

Against that background Mr Ellis then turned to paragraph 33 of the opinion in which the court set out its observations regarding the proper and lawful operation of the Code:

"The code of conduct does not require that the full procedures need be gone through every time an allegation of incompetence is raised. For example, the chief harbour master having considered an allegation of incompetence, need not take matters any further than Cl 6.2.3. In our opinion, however, before an incident can be relied on by the respondents as supporting a finding of incompetence and forming a factual basis, in whole or in part, for revoking the authorisation of a pilot, the whole procedure requires to be followed through. In our opinion, that is necessary before the respondents are in a position to determine two matters which are for them to decide: (a) that the pilot concerned has been guilty of incompetence, affecting his capability as a pilot; and (b) that such finding of incompetence warrants revocation of the authorisation of the pilot. Whatever the terms of the disciplinary committee's recommendation, the final decisions on those matters are not for the disciplinary committee. They are for the respondents themselves. It follows, therefore, that before an allegation of incompetence or misconduct can form the basis for revocation of an authorisation, it must be investigated in accordance with the rules of natural justice by the preliminary inquiry, the disciplinary committee and, if a formal hearing is sought under the provisions of Cl 6.2.6 by the two executive directors of the respondents conducting that formal hearing. In our opinion, the respondents cannot base the revocation of a pilot's authorisation, in whole of in part, on allegations of incompetence (or of misconduct), which have not been investigated in accordance with the disciplinary procedures laid down in Cll 6.2.3, 6.2.4 and 6.2.5. Nor can they do so on the mere fact that a pilot has been involved in an incident which has not been investigated at all. Standing the structure of the code of conduct, the investigation of an incident to determine whether it might form a basis for a finding of incompetence against a pilot cannot commence part way through the disciplinary procedures provided for by Cl 6.2. Having considered the papers placed before us, it would appear that was what the respondents intended to do when they drafted and sent to the reclaimer the notice of intention to revoke his authorisation."

Mr Ellis also laid stress on the following observations at paragraph 35:

"In our opinion the cumulative effect of three incidents within a short period, to which the Lord Ordinary refers, could only have had a bearing if the first and second incidents had been properly investigated in accordance with the code of conduct and such investigation had disclosed acts or omissions on the part of the reclaimer capable of supporting a finding of incompetence affecting his capability as a pilot."

Mr Ellis submitted that the facts in the Cooper case were on all fours with the instant case and that accordingly this court was bound by the decision in the Cooper case.

[38] In light of the decision in the Cooper case he contended: it was accepted on behalf of the respondents that the full disciplinary procedure in the code had not been gone through timeously (i.e. promptly and without delay) following the occurrence of each of the earlier incidents, as he submitted was necessary given the decision in the Cooper case; it was accepted on behalf of the respondents that (a) regard had been had to the earlier incidents in the disciplinary process following upon the fifth incident and (b) they had been part of the basis upon which the disciplinary committee had made its recommendations. The disciplinary committee's recommendations and anything which followed therefrom were thus unlawful and the petitioner was entitled to the first to fourth orders sought.

[39] Mr Ellis in developing the above contended that it was apparent from the provisions of the code that if in relation to any incident the disciplinary procedure was to be gone through then it must be gone through promptly and without delay. It was his position that none of the earlier incidents had been dealt with in this way and accordingly there was a breach of what might be described as the timing provisions within the code.

[40] Senior counsel accepted that the Cooper case had made no express decision regarding this aspect of the code, however, it was his position that the code, on a sound construction, envisaged a continuous process so far as the disciplinary procedure was concerned with each stage following without delay after the preceding one. This submission was made under reference to the submissions Mr Ellis had made at the outset of his address to the court regarding the provisions at paragraph 6 relative to timing. What he said could not be done in terms of the code was the parking of an incident. What I understood him to mean by that was this: an incident which had not gone through the full disciplinary process could not be put to one side and then used in any later disciplinary process following upon a further incident. He stressed that there were good reasons why timing was important with respect to the disciplinary procedure. First, it gave the pilot a proper and fair opportunity to clear his name at an early stage. Secondly, due to the nature of the shipping business, witnesses to any incident were likely to disappear fairly quickly and thus if there was to be a hearing where all necessary witnesses could give evidence then it had to be held without delay following an incident. It was apparent in the instant case that incidents had been parked, namely: the earlier incidents and these had not been taken through the full disciplinary procedure promptly as was required on a sound construction of the Code.

[41] For the foregoing reasons he submitted I should grant the relief sought at (a)-(d).

[42] Mr Ellis then moved on to address in turn each of the branches of the respondents' response to his core contention regarding unlawfulness as foreshadowed in the pleadings and the note of argument on behalf of the respondents.

[43] First he turned to address the argument for the respondents that if the Code had been breached, any such breach did not invalidate the actings challenged in that in relation to that matter the Code was directory and not mandatory.

[44] He directed my attention to two authorities which he submitted gave guidance on the questions that the court should have regard when considering this issue.

[45] In Charles v Judicial and Legal Service Commission [2002] UKPC 34 the questions to be asked by the court when considering such an issue were set out in the judgment of the court in the following passages:

"9. The leading authority is the decision of the Privy Council in Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286. At 1296 Lord Slynn of Hadley, who delivered the judgment of their Lordships, cited from the speech of Lord Hailsham of St Marylebone LC in London & Clydesdale [sic] Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 in which his Lordship had discouraged the use in this field of rigid legal classifications like mandatory and directory. Lord Slynn then said:

'their Lordships consider that when a question like the present one arises - an alleged failure to comply with a time provision - it is simpler and better to avoid these two words 'mandatory' and 'directory' and to ask two questions. The first is whether the legislature intended the person making the determination to comply with the time provision, whether a fixed time or a reasonable time. Secondly, if so, did the legislature intend that a failure to comply with such a time provision would deprive the decision maker of jurisdiction and render any decision which he purported to make null and void?' "

Thereafter at paragraph 11 the court set out the approach to the said second question:

"The answer to the second question involves an examination of (i) the role of regulation 90, and its individual parts, in the overall regulatory scheme, (ii) the purpose and policy of the time provisions, and (iii) in the end a judgment as to whether those who promulgated the regulations intended that breach of a time limit should deprive the Commission of jurisdiction, thus rendering any later purported decision or determination null and void."

Senior counsel secondly took me to the observations of Lord Steyn in R v Soneji [2006] 1 AC 340, at page 349C to 350C where having set out the core problem of deciding when a requirement was directory or mandatory observed:

"VII. A new perspective

15 In London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 189-190 Lord Hailsham of St Marylebone LC put forward a different legal analysis:

'When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act. In such cases, through language like 'mandatory,' 'directory,' 'voidable,' 'nullity,' and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind.'

This was an important and influential dictum. It led to the adoption of a more flexible approach of focusing intensely on the consequences of non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity. In framing the question in this way it is necessary to have regard to the fact that Parliament ex hypothesi did not consider the point of the ultimate outcome. Inevitably one must be considering objectively what intention should be imputed to Parliament."

[46] Mr Ellis submitted that although what the court was being asked to consider in this case was not a statutory provision, it was his position that the same questions properly arose when considering the issue of whether breach of the Code led to fundamental invalidity.

[47] Turning to apply the above considerations to the present case he submitted that the nature of the breach which he was contending was not something minor like missing a time limit. Rather, it was missing two entire steps in the disciplinary procedure relative to the first two incidents and in relation to the latter two incidents missing one step. In addition in relation to each of the earlier incidents, there had been a failure to comply with the timing provisions and any consideration of them at this point in terms of the disciplinary procedure would come far too late.

[48] Turning to consideration of the regulatory regime and the Code, he placed emphasis on the reference to the Code applying in all cases. He also highlighted the elaborate steps of inquiry to be undertaken in terms of the Code and submitted that it could be assumed that parties believed that this elaborate code struck a proper balance between the various interests and that there were good reasons for this procedure. It was his submission that looking to the regime itself it was clearly intended that all of the steps should be taken.

[49] With respect to the issue of prejudice, which he accepted was a relevant factor he conceded that he was not able to submit that there had been actual prejudice but what he could say was this: where investigations had not taken place within the time limits stated within the Code, there was the possibility of prejudice, particularly where in the relation to the first two incidents they had been not looked at until a considerable period of time later and at that stage it would undoubtedly be difficult to get third party evidence. He could not point to any particular evidence that such third party evidence could not be obtained, however what he could submit was that it would be difficult to obtain. He submitted this: if the investigations had taken place within the time limits, then more facts in mitigation could have been put forward.

[50] The next chapter of the response which was dealt with by Mr Ellis was this: if the petitioner were correct in his construction, it was contended on behalf of the respondents, this produced an unlawful fettering of the respondents' discretion.

[51] The petitioner's general reply to this assertion was: the statutory discretion under examination was whether or not to revoke an authorisation under section 3(5) of the 1987 Act. There was, he contended, nothing in the Code which determined or purported to determine the decision which the respondents in any given case would make on that question. The Code rather merely set out agreed procedures which had to be followed in each case. The Code did not fetter the respondents' discretion as to whether or not to revoke an authorisation in any given case. The Code was consistent with the statutory purposes of section 3(5) and more generally the 1987 Act. It was consistent with the scheme of the 1987 Act to have an agreement in place with a pilots co-operative which provided the pilotage services. Sections 4(1) and (2) and section 11(1) envisaged the provision of services by a person other than the competent harbour authority. It was in any event reasonably foreseeable that it was a necessary part of such arrangements for binding contracts be entered into governing relationships between the competent harbour authority and the provider of the services. The Code was part of arrangements implementing the purpose of the Act. Nothing in the Code was inconsistent with the statutory purposes.

[52] He submitted that a binding contract was valid in such circumstances provided the contract was not incompatible with the statutory purpose of the Act, or put another way that the contract did not deprive the competent harbour authority of any part of its statutory birthright. In support of this position he referred to Birkdale District Electricity Supply Co v Southport Corporation [1926] AC 355 at pages 364-367 and 370-372 and R v Hammersmith & Fulham London Borough Council, ex parte Beddowes [1987] 1 QB 1050 at page 1065. He submitted that there was nothing in the argument on behalf of the respondents because: (a) the decision whether or not to revoke in a particular case is not constrained in any way by the Code and, in any event, (b) the arrangement between the respondents and the pilots co-operative was quite consistent with the purposes of the statute and not in any way inconsistent with the proper exercise of the respondents discretion under section 3(5). As the Cooper case at paragraph 30 made clear, the terms and conditions of the Code take account of the public interest, the interests of the pilots and the interests of the respondents. On the foregoing basis he submitted that there was no question which truly arose of fettering the statutory discretion.

[53] Further and in any event, Mr Ellis argued that the Code was part of the arrangements which the respondents had made in order to facilitate provision of pilotage in terms of section 4(1) of the 1987 Act which provides:

"Subject to subsection (2) below, a competent harbour authority may make such arrangements as it considers appropriate for the provision of the services of authorised pilots in the area in relation to which his duty under section 2(1) above is exercisable (whether under a contract of employment or a contract for services)."

[54] In his submission the disciplinary procedure for pilots was obviously necessary, if the respondents were going to contract with a third party to provide pilotage services. A disciplinary procedure also served the public interest by seeing first that public office holders (pilots) were fairly treated and, secondly, that pilots who were not competent may have their position reviewed.

[55] Against that background he contended that if the respondents' ability to exercise its powers in terms of section 3(5) was in any way trammelled by the Code it was contemplated within section 4(1) and therefore there was a conflict of powers.

[56] He then turned to the following observations of Sir Denys Buckley in R v Hammersmith & Fulham London Borough Council, ex p Beddowes at page 1076:

"I am clearly of the opinion that, if a statutory authority acting in good faith in the proper and reasonable exercise of its statutory powers undertakes some binding obligation, the fact that such obligation may thereafter preclude the authority from exercising some other statutory power, or from exercising its statutory powers in some other way, cannot constitute an impermissible fetter on its powers."

Mr Ellis took from this observation that in circumstances such as may be thought to exist in the instant case where there was a conflict there could be no unlawful fettering.

[57] Senior counsel then turned to the acquiescence/waiver argument put forward on behalf of the respondents. He commenced his submissions by outlining what he understood to be the respondents' argument under this head: the respondents' position was that on two occasions waiver had taken place: (a) at the time of the performance review, namely: the conduct in taking part in said review and what was said by him at said review and (b) his participation thereafter in the disciplinary procedure following upon the fifth incident without raising the objection now the subject of this judicial review.

[58] Senior counsel accepted in principle that the petitioner could waive compliance with the disciplinary procedures laid down in the Code.

[59] Generally he submitted that the respondents' arguments properly understood were based on waiver rather than acquiescence. It was his position that what the respondents were relying upon was waiver in that what was argued on their behalf was that because the petitioner had rights to object and had failed to object he had given up these rights.

[60] Senior counsel then directed my attention to: first, Armia Ltd v Daejan Developments Ltd 1979 SC (HL) 56 and to the well-known passage in the speech of Lord Keith of Kinkel at page 72 in which he set forth the definition of waiver and the courts approach thereto:

"The word 'waiver' connotes the abandonment of a right. (See: Banning v Wright [1972] 1 WLR 972 per Lord Hailsham of St Marylebone LC at p. 979, Lord Reid at p. 981). The abandonment may be express, or it may be inferred from the facts and circumstances of the case.... I conclude from these cases that the question whether or not there has been a waiver of a right is a question of fact, to be determined objectively upon a consideration of all the relevant evidence."

He secondly referred to James Howden & Co Ltd v Taylor Woodrow Property Co Ltd 1998 SC 853 and in particular the opinion of Lord Kirkwood at pages 866 and 867:

"But waiver cannot, in my view, be constituted by an undertaking to postpone the exercise of the right. It is, in my opinion, an essential element of waiver that a right is abandoned for all time and is therefore extinguished. In this connection I respectfully agree with the observations of Lord Murray in Atlas Assurance Co Ltd v Dollar Land Holdings plc, where he stated (at page 894) that 'what is averred must be consistent with abandonment and inconsistent with merely suspending the sanction of resiling by the creditor to give the debtor a further opportunity to fulfil the contract'. Further, in Lousada & Co Ltd v J. E. Lesser (Properties) Ltd, Lord Justice-Clark Ross dealing with an express right to resile, stated (at page 828) as follows:

'If that right was waived, then, in my opinion, it would be waived once and for all and there would be no question of the defenders being required to issue an ultimatum before holding the bargain to be at an end.'

As I have reached a conclusion that an essential feature of waiver is the abandonment of a right for all time, and that in the circumstances of the present case it cannot be said that Taylor Woodrow had abandoned their right to resile, it follows that on that short ground the reclaiming motion must be refused."

From the above observations senior counsel drew the following: that first the actings relied upon must be consistent with the abandonment of the right for all time, before waiver of that right can be established.

[61] Secondly, he submitted that in order for waiver to be established there must be actings consistent with the waiver. Or put another way, the actings of the party said to have abandoned the right must be inconsistent with anything else.

[62] In support of this submission Mr Ellis directed my attention to Presslie v Cochrane McGregor Group Ltd 1996 SC 289 and the opinion of the court at page 292A:

"The only question which accordingly appears to us to arise in this case is whether the facts and circumstances founded on by the pursuers give rise to the inference that the first defenders had abandoned their right by the time that they sought to enforce it. Parties were agreed, in our opinion correctly, that the test to be applied in determining this question was appropriately expressed in the similar case of Inverclyde (Mearns) Housing Society Ltd v Lawrence Construction Co Ltd in which the Lord Ordinary (Lord McCluskey) stated at page 81 that: 'The court must consider whether the actings (including failure to act) of a party must be construed as being inconsistent with an intention to insist upon his contractual right to go to arbitration.'"

Senior counsel placed particular emphasis on the use of the word 'must' in the observations of Lord McCluskey in the Inverclyde case.

[63] Thirdly, he submitted that in order to establish waiver, actings on the part of the party asserting waiver of a right were on the basis of a view induced by the waiver.

[64] Fourthly, to establish waiver, it must he submitted be shown that the actings of the party said to have abandoned must be based on knowledge of the right which he is said to have abandoned.

[65] Senior counsel directed my attention to Porteous Trustees v Porteous 1991 SLT 129 and in particular to the following observations of Lord Sutherland at 131L‑132C:

"Counsel for the second defender maintained that it is clear from Armia that there can be no abandonment of a right by way of confession unless the party concerned is aware that he has the right in question and acts in such a way as to show that he has in fact abandoned it. It will not do to say that he ought to have known of his right if he had applied his mind to certain facts and if he had received appropriate advice. The cases referred to by Lord Keith of Kinkel, namely MacDonald v Newall (1898) 6 SLT 192; Davis v City of Glasgow Friendly Society, 1935 SC 224 and Donnison v Employers Accident and Livestock Insurance Co Ltd (1897) 24 R. 681 were all cases in which it could be said that the party alleged to have waived a right must have known that he had that right and could not be heard to say that he was unaware of the existence of it. As Lord Keith said, the question of whether or not there has been waiver of a right is a question of fact to be determined objectively upon a consideration of all the relevant evidence. In Armia itself, as Lord Fraser points out, the argument was that the appellant had waived their right to refuse the only title offered to them by their actings 'after they had discovered the existence of the burdens'. Accordingly in Armia there was specific knowledge on the part of the appellants. I agree with counsel for the second defender that it will not suffice to show that a party had available to him information from which he could have ascertained that he had a right, unless the evidence goes to the extent of showing that he must have known that he had that right and cannot be heard to say that he was ignorant of it."

Senior counsel submitted that this case placed a limit on constructive knowledge. The observations of Lord Sutherland had been commented on favourably by Lord Clyde in Strathclyde Regional Council v Persimmon Homes (Scotland) Ltd 1996 SLT 176 at 180A:

"Finally reference was made to Porteous's Trustees v Porteous where Lord Sutherland held that there could be no waiver of a right unless the party in question was aware of the right and had deliberately abandoned it. Counsel for the defender sought to distinguish the case from the present, but the principle seems to me to be in line with the position adopted by the pursuers."

[66] Lastly, in relation to this proposition he referred to Murray v Scottish Boatowners Mutual Insurance Association 1986 SLT 329. He referred to this as he understood that it was an authority which would be relied upon by the respondents in relation to the issue of knowledge of the right being abandoned. His position was that Lord Murray in this decision had not in any way departed from the views expressed by Lord Sutherland regarding imputed knowledge in the Porteous case.

[67] Against the above legal landscape, Mr Ellis turned to look at the factual matrix of the instant case and to apply the various legal propositions he had outlined thereto.

[68] So far as the performance review was concerned he submitted that the actings of the petitioner in taking part therein were not inconsistent with his retaining the right to object to the earlier incidents being taken into account in later disciplinary procedures in terms of the Code. Agreeing to discuss the earlier incidents outwith the disciplinary procedure was not the same as giving up the said right.

[69] When one turned to the minute of the performance review (production 16) he submitted that what was said by the petitioner was no more than an acceptance that procedures as set out in the Code were not being followed in relation to the performance review. It did not contain an abandonment of any right to object later should these matters be sought to be used in disciplinary proceedings. What he submitted was important was this: it could not be said that there was an unequivocal abandonment which arose from what had occurred and what was said by the petitioner at the performance review.

[70] It was his submission that having regard to the minute and approaching it objectively no inference of an abandonment of his rights to object could be inferred. In essence, what Mr Ellis said was this: there was nothing within the said minute which said: there has been a failure to investigate properly the earlier incidents and in light of that I abandon my right to object to these being founded upon in later disciplinary proceedings.

[71] He then turned to the affidavits of the various persons present at the performance review. His submission generally regarding these was that the contents of them took the respondents no further in relation to the issue of whether the right had been unequivocally abandoned.

[72] He then summarised his position as to what could be taken from the performance review and said this: waiver fails because (1) no acts or words connoted abandonment; (2) the actings were consistent with no abandonment of the said right; (3) there was no evidence that the respondents believed that the petitioner had abandoned his rights; (4) there was no evidence the respondent had acted on the basis of a belief that he had abandoned the right in question and (5) there was no evidence of informed abandonment on the part of the petitioner.

[73] Moving on to what could be taken from the petitioner having taken part in the disciplinary hearing and failing to raise an objection to earlier incidents being discussed, he submitted again there was no informed abandonment and there was nothing to show the respondents had changed their position because he had failed to object and therefore had acted in reliance on his abandonment. His position was that the respondents would have gone ahead even if the petitioner had objected. In any event, it could not be inferred from silence at the disciplinary hearing that he was abandoning his right to object to any notice of revocation which followed therefrom.

[74] In conclusion Mr Ellis submitted that he had looked at these two stages individually, however, even if looked at together the same points applied. He submitted the respondents' case under this head was bound to fail.

[75] The next chapter of the respondents' response to which Mr Ellis turned was this: if the remedies sought by him were justified in law nevertheless the court should not exercise its discretion in favour of the petitioner.

[76] Mr Ellis accepted that the court has such a power in exceptional cases not to exercise its discretion in favour of such a party (see: Grahame v Magistrates and Police Commissioners of Kirkcaldy (1882) 9 R (HL) 91 per Lord Watson at pages 91 and 92). However, he submitted this was not an appropriate case for the court to exercise its discretion in this way.

[77] He accepted that there was a public interest with respect to the safety of navigation on the Forth. However, he submitted that that is properly served by the ability to have pilots made subject to a proper disciplinary procedure. There was equally a public interest in having a proper disciplinary process. There were no circumstances which should cause the court to exercise its discretion in a manner whereby the respondents' flouting of the proper procedure should hold sway.

[78] The final section of the petitioner's argument related to the fifth, sixth and seventh remedies sought in terms of the petition.

[79] These remedies proceeded on the proposition that the fifth incident when looked at on its own was not serious enough to justify suspension. If that was correct then continued suspension would be unlawful as it is not in accordance with the Code. Suspension Mr Ellis submitted was intended to be temporary, while disciplinary proceedings were pending. The petitioner's submissions under this head can be summarised as follows: a decision is invalid if no reasonable decision maker could have arrived at it; the starting point was the statutory test in section 3(5) of the 1987 Act; in order to satisfy that test there required to be more than a misjudgement; only in exceptional circumstances could a single incident amount to incompetence; and there was nothing in the fifth incident which caused it to be exceptional.

[80] The petitioner relied on observations in Moore v Clyde Pilotage Authority 1943 SC 457 at 464 and 465 that an error of judgment on the part of a pilot was not negligence and The Empire Antelope 1943 P&D 79 where at p 85 the following observation is made.

"In our opinion, the circumstances must be quite exceptional to justify a finding of unfitness to discharge his duties by reason of incompetency against a master with an unimpeachable record in relation solely to an isolated incident."

Having set the legal background Mr Ellis turned to the factual matrix and submitted that there was nothing exceptional in the fifth incident. He pointed to: the result of the 6:2.3 investigation which placed the incident in the medium category; the comment in the minutes of the preliminary hearing (production 25) that an enquiry would not have been held but for previous incidents; the petitioner's expert report (production 68) which said there had been an error on the petitioner's part but that it was not exceptional; the respondents' expert report did not categorise the incident as exceptional and finally the affidavits of Mr Hague, Mr Baker, Mr Wibberly and Admiral Lockwood he submitted when looked at as a whole made it clear that it was the five incidents as a whole which were said to amount to incompetence and that the fifth incident on its own could not amount to incompetence.

[81] On the basis of the foregoing he moved that the petitioner was entitled to relief as sought in the fifth to seventh remedies.

The reply on behalf of the respondents
[82] Mr Cormack began by making various general points before turning to develop his detailed arguments.

[83] First, his motion was that I should refuse all remedies sought. He submitted that if the court were to do so, it would have the effect of permitting the existing disciplinary process to be completed by a final hearing before two directors of the respondents who had excluded themselves when the notice of intention to revoke decision was taken. The respondents did not accept that the matter was a foregone conclusion, there still was a hearing before the two directors, the respondents to date had not yet taken a decision, all that they had done was to intimate an intention to revoke, however, that was not binding on the said directors.

[84] Secondly, he emphasised that it was a matter of concession on behalf of the petitioner that if all five incidents could lawfully be taken into account a reasonable harbour authority could find the petitioner incompetent and that there would be sufficient to found revocation.

[85] Thirdly, he drew to my attention that there was no challenge on the basis of a breach of natural justice or unfairness outside the Code and there was also no assertion on behalf of the petitioner that there had been actual prejudice to him. He submitted that these points may be important factors in the consideration of the final issue before the court namely the exercise of its discretion.

[86] He then set out certain general propositions he intended to develop in the course of his oral argument:

1. The petitioner's core contention that as a result of the decision in the Cooper case, the earlier incidents and the performance review should have been left out of account by the respondents and indeed may never be taken account by the respondents in any disciplinary process on a proper understanding of the Code and on a proper understanding of the Cooper case was incorrect. He emphasised that it was important to understand the limitations of what was considered in the Cooper case. In his submission the Cooper case was distinguishable from the instant case.

2. He argued that even if the Code on a sound construction was as contended for by the petitioner the review procedure and what happened after the NV Winter incident brought it within the Code.

3. Further, if the Code was as contended for by the petitioner he submitted that the procedural errors were not sufficient to render the proceedings invalid.

4. If neither of the foregoing arguments was correct then the Code amounted to an unlawful fettering of the respondents' discretion.

5. Failing the above, the petitioner had in the whole circumstances waived his right to object.

6. If the court were with him in relation to none of the said arguments then, although the respondents' actings would be held to be unlawful, he asserted that the court should not exercise its discretion in favour of the petitioner by granting the remedies sought.

The proper construction of the Code
[87] Mr Cormack contended that the petitioner's construction, which required the earlier incidents and the performance review to be left out of account was incorrect. He contended that the petitioner's position that the 6:2.3, 6:2.4 and 6:2.5 procedures must take place promptly and as part of a continuous process following the occurring of a particular incident and if not the incident must be left out of account in any later disciplinary proceedings was an extreme position involving a misinterpretation of the Code and the case of Cooper. Rather he submitted the proper effect of the Code was that it was complied with in cases of allegations of incompetence arising from a series of incidents if each of the stages of the Code was followed after the last of the incidents which preceded the disciplinary process.

[88] The Code he submitted was essentially a form of contractual document entered into between the respondents and the association of Forth Pilots acting on behalf of the pilots.

[89] He submitted that it was trite that in the interpretation of a contract the court wished to find the intention of the parties and did this by finding the meaning of the words in the contract. In doing so the court had regard to: the actual meaning of the words used; the purpose of the contract and provision; the other provisions in the contract; the background facts and common sense.

[90] He submitted that it must be taken to have been the intention of the parties that the Code should be workable.

[91] Mr Cormack then turned to examine the Code in some detail and to advance the argument in support of his contended for construction thereof.

[92] He first looked at page 5 of the Code and at the section headed "Introduction" where the following is said:

"Forth Ports' principal duty under the Pilotage Act is to provide a pilotage service, which ensures the safety of ships navigating in its harbour."

He went on to submit that the respondents regarded the matter of safety as being of paramount importance and said that this was a useful express statement of the context which had to be borne in mind when considering the Code.

[93] The Code, he said, dealt with a variety of practical matters and was intended among other things to be a workable document for a safe pilotage service.

[94] Turning to what he described as the heart of the matter, namely the disciplinary procedure within the Code as set out at paragraph 6, he firstly began by looking at paragraph 6:2. It was his position that as a matter of principle and language, the phrase "all cases of incompetence" as referred to at 6:2 was capable of encompassing a case of incompetence which consisted of more than one incident.

[95] With respect to 6:2.3 he submitted that in terms of the provision, it was only where the CHM "acting reasonably considers appropriate" that there will be an investigation. A discretion was thus conferred on the CHM and this acted as a trigger for the rest of the disciplinary process.

[96] He submitted that the CHM had a responsibility to apply this test and decide whether it was met and in considering whether the test had been met as a matter of principle and language the circumstances of the incompetence could encompass more than one incident.

[97] Thereafter, if the provision as set out in 6:2.3 was treated as a trigger then, he accepted, the circumstances must be investigated without delay. He appreciated that there was a practical concern where incidents were not brought under investigation for some time after they had taken place in that there was a risk of evidence being lost. However, he submitted that this risk was in a real sense dealt with by the provisions of 6:2.2 which required a pilot to deliver to the CHM a written report providing the information requested on the agreed form within 24 hours of such an incident. Further, in any process where an earlier incident was to be taken into account, it was of course open to a pilot to say that the earlier incident should not be taken into account, for example because it had occurred so long ago or because evidence had been lost and there was actual prejudice and unfairness in taking account of the earlier incident and there was, of course, an obligation on the respondents to deal with him fairly and reasonably.

[98] In support of his submission that the obligation to deal with incidents promptly was only triggered by the CHM reaching his decision in terms of 6:2.3 he contended this made sense in that a single incident may not of itself form the basis for an allegation of incompetence. However, repetition of behaviour of a type in that incident may then, when looked at together, form the basis for the allegation of incompetence. If the Code had the interpretation sought by the petitioner, the problem would arise in a reasonably probable set of circumstances that the process could not get off the ground, there would be a "catch-22" situation. In these circumstances the CHM, if he held that an allegation of itself was not of an appropriate type to take beyond the 6:2.3 stage it would mean that that incident could never be taken account of, even if it were of relevance in consideration of future incidents. He submitted that this could not be a correct interpretation.

[99] Turning to 6:2.4 he again submitted that as a matter of principle and language an earlier incident was capable of forming part of the circumstances in which a later incident took place and therefore material which could be considered at the preliminary inquiry.

[100] He went on to submit that the interpretation which he was advancing was consistent with the last paragraph of 6:1.2 of the Code, which was to the effect that following a 6:2.3 initial review of the facts the matter could be dealt with by a letter from the CHM advising of concerns raised by the incident. It was clear from this subsection that in such a case the remaining elements in the procedure, namely 6:2.4 and 6:2.5, would not be followed at that time. However, he submitted that it would be very odd indeed that if an incident was dealt with by way of a letter of concern that that incident could not be taken into account in later disciplinary proceedings. From the common sense point of view, if the initial incident were of a similar type to the later incident it must be capable of being taken into account. He submitted that it was not possible for it to be said that a letter of concern was irrelevant and could not be taken into account in later proceedings. He submitted that 6:1.2 pointed clearly to the petitioner's contended for construction being wrong.

[101] He then turned to look at the context of the provisions and he prayed-in-aid of his contended for construction the width of jurisdiction of the disciplinary committee under 6:2.5(iv) was such as to point to his contended for construction. He submitted that in a pattern case, and it was his position that the instant one was such a case, previous incidents must be a factor, "relevant to the allegations of incompetence".

[102] In addition, he pointed to the width of the discretion at 6:2.5(v) which was to the effect that a disciplinary committee should consider all the information available. In a pattern case he submitted previous incidents must form part of the information to be considered.

[103] Mr Cormack went on to submit that in a highly foreseeable situation namely where an incident does not of itself show incompetence, the CHM could not get the process off the ground at the 6:2.3 stage so that it formed part of the record which could be used in any future disciplinary proceedings, based on a pattern of incidents showing incompetence. The CHM could say, in such a situation, if this type of behaviour was repeated there may be grounds for saying that investigation of incompetence was necessary. However, in such a situation it would not be reasonable for the CHM to say that because behaviour may be repeated he will investigate it. That would be irrational. Proceeding on the petitioner's interpretation would have the Pilots Association complaining about minor incidents which of themselves could not amount to incompetence being subject to the full disciplinary procedure under the Code. It was his position that there was a real spectre of judicial review at each stage if the CHM triggered a 6:2.3 hearing in a minor case.

[104] Moreover, the petitioner's contended for construction would leave the convenor of the disciplinary committee in an impossible position: on what basis could he convene a disciplinary hearing in relation to an isolated minor incident not of itself showing incompetence? Again if he were to do so that would be the subject of a challenge by judicial review.

[105] Then there was the position of the disciplinary committee itself. On the petitioner's approach in order to trigger the recording of an incident for future purposes the disciplinary committee would have to make a finding in terms of 6:2.5(vi).

[106] A recommendation in terms of (1) would not be sufficient. If they were to make a finding in terms of (2) to (6) that would not be justified on the basis of one minor incident which of itself did not show incompetence. Thus they would be placed in an impossible position.

[107] He went on to submit that there was a tension in the approach of the petitioner. In overall terms the petitioner's submission was that the fifth incident was not sufficient to demonstrate incompetence as not exceptional but the interpretation of the Code that the petitioner contended for meant that, in essence, a pattern case could not be looked at. That, he submitted, was a contextual argument against the interpretation of the Code which was being contended for by the petitioner. In his submission the petitioner's approach would prevent the respondents from taking into account a common theme arising in a series of perhaps minor incidents. He submitted it was inherently unlikely that that would have been intended by the parties.

[108] It was his submission in summary that the language, context and purpose of the Code pointed to the parties having an intention that patterns and trends of behaviour should be taken into account and that this pointed to the respondents' construction.

[109] Having looked at the Code, the next matter to which Mr Cormack turned his attention was the Cooper case. He generally submitted that, first, on a fair reading of the report it did not deal with the timing issue on the basis contended for by the petitioner.

[110] Secondly, he submitted that as he read it the outcome of the decision was to reduce the notice of intention to revoke which referred to three incidents, the court did not grant the reclaimer any remedy as to the future regarding how the two earlier incidents should be dealt with (see: paragraph 39). It was his position that the Inner House in looking at this matter left the future alone.

[111] It was his position that his contention the Inner House had not determined the timing issue was confirmed by looking to the reclaimer's submissions at paragraph 23. There was nothing in there which expressly raised a timing issue, and there was nothing within the discussion dealing with any timing issue. It was simply not raised that the respondents were time-barred from considering the earlier two incidents.

[112] With respect to the issues which had been addressed by the court in the Cooper case, it was his submission that it was important to understand the mischief which was addressed by the court, which was this: the implication of the two earlier incidents had not been considered under 6:2.3, 6:2.4 and 6:2.5. He submitted that that was not a mischief which was present in the instant case as the implication of the earlier incidents had been considered. The alleged mischief in the instant case was entirely different from that in the case of Cooper.

[113] The other distinctions between the instant case and the Cooper case which he relied upon were these: the court did not in Cooper have to consider the situation where an earlier incident did not of itself amount to incompetence. The situation in the Cooper case was not where an incident only became relevant after a later incident had occurred.

[114] In the Cooper case the notice of intention to revoke did not contain adequate reasons. That was not suggested in the instant case.

[115] It was clear in the Cooper case from a consideration of paragraph 35 of the opinion and the last sentence of paragraph 36 that the circumstances in the Cooper case were such that the court was looking upon it as a cumulative case. That was very different from the circumstances in the present case which was said to be a pattern case and not a case based on the mere accumulation of incidents.

[116] Mr Cormack accepted that in the Cooper case the court was setting down general principles to the effect that the whole disciplinary procedure must be followed through for incidents to form the basis of the revocation of a pilot's license but, he submitted, what the Cooper case did not say was that an earlier incident which was said not of itself to amount to incompetence required the whole procedure to be gone through in relation to it for it to be considered in the light of a later incident.

[117] From the foregoing he submitted that in a pattern case the following through of the whole procedure after the final incident would be sufficient.

[118] Moving on from his submissions as to how the Code should be interpreted, Mr Cormack then sought to illustrate how the process followed in the instant case complied with the Code as so interpreted.

[119] In the instant case the CHM, Robert Baker did not conclude that the 6:2.3 test had been passed by the first two incidents. However he did consider in view of a pattern that was developing that the third incident required investigation though he did not take matters beyond an investigation by the Harbour Master Forth Inner at that time (see: paragraphs 12- 18 of his affidavit).

[120] The fourth incident was considered to have fulfilled the 6:2.3 hurdle and it is clear that there would have been a disciplinary process so far as the CHM was concerned but for going down the performance review route (see: paragraphs 21 and 22 of his affidavit and his statement at paragraph 2). That view, he submitted, was supported by Mr Hague (Chairman of the Association of Forth Pilots) in his affidavit at paragraphs 14, 17 and 24.

[121] Thereafter it was common ground that the petitioner agreed to the performance review interview and being placed on review for 12 months as a result of that interview.

[122] Mr Cormack's position was that the implications of that agreement were this:

1. There could be no valid complaint from the petitioner that further steps in terms of the disciplinary procedure were not taken at that time. Even on the petitioner's interpretation, consideration of the fourth incident was accordingly not barred by lapse of time.

2. The petitioner at least by necessary implication accepted that significant and properly held concerns were held relative to the earlier incidents.

3. The outcome of the review was a significant act in that the petitioner was to be monitored and, in addition, was warned what would happen should there be a further incident within the period of the monitoring.

4. Concerns were put to the petitioner at the meeting which he did not refute. A person who accepted being placed on performance review monitoring must be taken as accepting that these concerns were properly held.

5. A further implication was that should a further incident take place during the period of the performance review then the performance review and the earlier incidents would be taken into account in proceedings which followed the further incident. This follows, as he was expressly told, that the circumstances of the performance review would be taken into account for the purposes of the 6:2.3 trigger.

The petitioner's position was that the disciplinary procedure would only be instigated relative to any further incident but leaving aside the earlier incidents. That could not be right as his position was to be monitored in light of something and that something must have been the earlier incidents. He could only properly be monitored if the earlier incidents were taken into account. The minutes of the review and the accompanying letter (production 16) expressly stated that there was to be this review over 12 months and expressly linked to that was the disciplinary code being implemented if there were any further incidents. Mr Cormack submitted the above express provision defeated any suggestion that because the performance review was not part of the Code it had no relevance in any further disciplinary proceedings, rather he submitted that the opposite was being said.

[[123] In relation to the minutes of the review proceedings themselves, Mr Cormack submitted that there was no rejection of the concerns which were raised at that time and no reservation was expressed about being placed on performance review. It was clear that the petitioner was being placed on performance review as a result of the earlier incidents.

[124] He submitted that if the performance review was relevant to later disciplinary proceedings then the basis upon which he was placed on the review, namely: the earlier incidents and the expressions of concern arising therefrom was equally of relevance. The petitioner, he submitted, must reasonably have understood if there were further incidents in the twelve months, what triggered the review was going to be relevant.

[125] He went on to submit that this was a common sense understanding of the performance review. It was clearly intended to be relevant to disciplinary proceedings and what lay behind it was clearly of relevance, namely what had caused the performance review.

[126] He submitted that the foregoing arose as an objective matter construing the content of the documents.

[127] Under reference to the various affidavits of those who had attended, he submitted that what they said supported the objective construction that he was putting forward (Baker and Hague's affidavits). Their understanding of what had happened was consistent with the content of the documents. Past performance on any view was at the forefront of their minds.

[128] Turning to the affidavit evidence of the petitioner, his position regarding the disciplinary process was set out at page 9 and 10. Mr Cormack submitted that had the petitioner's understanding been on the lines that he asserted at pages 9 and 10 he would surely have said that when it became clear that the disciplinary hearing was to be convened and the earlier incidents were to be considered. He did not do this. He was told about this well in advance of the disciplinary hearing (see: the letter, production 33).

[129] If he understood the performance review in the way he says on record, he did not need to be a lawyer to say that considering all five incidents was not consistent with his understanding of the performance review. It would have been common sense for him to object at the start of the disciplinary hearing.

[130] Approaching matters reasonably what happened at the performance review and the basis for having that, namely: the earlier incidents were relevant circumstances following upon incident number five.

[131] He went on to submit that at the 6:2.4 step in proceedings following the fifth incident, it was clear that included among the circumstances that were being considered were the earlier incidents and the fact that he was on a performance review (see: production 24, page 1, paragraph 4).

[132] Mr Cormack accepted that it might be argued against his position that the circumstances of the earlier incidents should have been addressed at the preliminary inquiry at the 6:2.4 stage in the manner they had at the 6:2.5 stage. His submission in relation to this was there was just enough to show that the previous incidents and performance review were taken into account as part of the circumstances.

[133] He submitted that if he was wrong in his contention regarding the 6:2.4 stage and it was not full compliance at that point that was a different type of failure to that which was levelled against the respondent by the petitioner and was the type of failure which was not intended to invalidate the proceedings given the whole circumstances were gone through at the 6:2.5 stage when taken in the context of all that had gone before.

[134] Turning then to the disciplinary committee, it was his position that it was clear from productions 37 and 38 that they had considered the earlier incidents in detail and that they had resulted in the petitioner being placed on performance review. There was nothing in breach of the code in the committee inquiring into all four incidents, where not considered in enormous detail at the preliminary inquiry at the 6:2.4 stage given the width of jurisdiction set out at 6:2.5(iv). That jurisdiction, he submitted, was not constrained in any way by what was covered at the preliminary inquiry. After the disciplinary committee hearing, its decision was sent to the petitioner (see: production 40). After the recommendation was communicated there was a delay as the petitioner wished to put in medical evidence. Then notice of intention to revoke was issued and the petitioner was given the opportunity to see if he wished to make submissions and he said he wished to do that. Then the letter of objection was received.

[135] In summary on the basis of the foregoing it was his position that the court should be persuaded that if he was correct on his construction of the Code the procedure in this case was sufficient to comply.

[136] He reiterated that there may be a wrinkle in the preliminary inquiry not going into all four incidents in detail but what happened looked at in the round was sufficient. It was his submission that there had been compliance with the Code on his construction.

Effect of failure to comply with the Code
[137] Mr Cormack began this chapter of his submissions by putting forward that the issues he now intended to address had not been addressed in the Cooper case. This was not disputed on behalf of the petitioner.

[138] His general submission was: it was not necessarily the case if there was a failure to comply with the Code that it invalidated any decisions taken. Rather as a matter of construction it was necessary to see whether parties intended any failure to comply should result in the respondents not being able to deal with the matter in question.

[139] The approach of the court as to whether a failure to carry out a procedural step could be described as mandatory or directory he accepted was set out in the speech of Lord Steyn in R v Soneji to which I had been referred by Mr Ellis.

[140] He referred me to one further section of the speech of Lord Steyn, who having concluded his review of the issue at page 353 paragraph 23 said the following:

"I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in Attorney General's Reference (No 3 of 1999), the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction. In my view it follows that the approach of the Court of Appeal was incorrect."

Mr Cormack went on in his review of the case of Soneji to stress the importance, which the court in its discussion, attached to the issue of actual prejudice in making the decision as to whether a provision was mandatory or directory.

[141] Observations regarding the importance of prejudice when considering this question were first made in Wang v Commissioners of Inland Revenue [1994] 1 WLR 1286 in the judgment of Lord Slynn at page 1296 referred to by Lord Steyn at page 351 paragraph 16 in Soneji:

"Such a result would not only deprive the government of revenue, it would also be unfair to other taxpayers who need to shoulder the burden of government expenditure; the alternative result (that the commissioner continues to have jurisdiction) does not necessarily involve any real prejudice for the taxpayer in question by reason of the delay."

Thereafter Lord Steyn makes this observation at page 354, paragraph 24:

"In my view this argument was overstated. The prejudice to the two accused was not significant. It is also decisively outweighed by the countervailing public interest in not allowing a convicted offender to escape confiscation for what were no more than bona fide errors in the judicial process."

Finally Mr Cormack turned to the speech of Lord Rodger of Earlsferry who observed thus as regards the issue of prejudice at page 358, paragraph 39:

"In that situation, where the breach of the requirements of section 71(1) caused no prejudice of any kind to the respondents in respect of their sentences, I am satisfied that Parliament would not have intended that the sentences passed by the judge should be invalid."

[142] Mr Cormack with respect to the issue of prejudice in this context in addition referred me to: Shahid v Scottish Ministers 2012 SLT 178 in which Lord Malcolm followed the approach in Soneji. He in particular referred me to page 187, paragraph 44 of his opinion where he observes:

"In Soneji Lord Carswell said (page 363, para 65):

'The traditional consequence of finding that a provision was merely directory was that substantial performance would constitute a sufficient compliance with the statutory requirement.'

When one looks at the whole circumstances in this case, I am of the view that there was substantial performance which was sufficient to avoid any finding of illegality. In reaching this opinion I have followed the guidance provided by Lord Carswell at page 364, para 67 of his speech. There was compliance with the essential purpose of the relevant Rule 94 provisions, namely that the decisions of the local prison management to continue segregation were subjected to regular and independent scrutiny by the Scottish Ministers. Furthermore I am not persuaded that there was any material prejudice, or indeed any prejudice at all, flowing from the lateness of the signing of certain orders."

Against the background of those observations, Mr Cormack turned to the circumstances of the instant case and submitted that there were strong reasons pointing against an interpretation of the Code that stopped the respondents dealing with incompetence arising in whole or part if they breached a timing requirement or otherwise breached the Code in circumstances where there had been substantial compliance.

[143] Mr Cormack submitted that the reasons were:

1. The respondents exercise an important public function relative to safety.

2. The respondents were considering whether a pilot's license should be revoked or suspended, and therefore it was inherently unlikely that they would be deprived of the right to deal with such issues because of a failure to comply with procedural provisions (this submission was made under reference to paragraphs 11, 13 and 16 of the Charles case).

3. It was very difficult to see how one can sensibly say that incidents which gave rise to significant concerns about a pilot's competence were not to be capable of being dealt with, as a result of procedural failures, where there was no actual prejudice to the petitioner.

4. The timing provisions were lacking in precision. They were quite general in their terms and thus it was not likely that it was intended that any such timing provisions be mandatory in their nature.

5. It was going too far to say that invalidity should be the consequence of any timing failures especially when there was no prejudice to the petitioner.

6. It was not appropriate given the substantial investigation which had taken place that there should be fundamental invalidity. On any view, there had been substantial compliance.

7. The respondents had acted in a bona fide manner and there had been no disrespect for the Cooper case. The performance review was a good faith decision. If looking to why the respondents had reached this position regarding delay and what happened at the preliminary inquiry not unreasonable given that performance review was entered into. In relation to this particular submission he relied on the approach of Lord Malcolm in Shahid v Scottish Ministers.

8. He pointed to the lack of actual prejudice to the petitioner.

In summary, he submitted that if consideration was given to what was just in the whole circumstances then particularly given participation by the petitioner in the process to a late stage without objection it was just to hold that any failures did not lead to fundamental invalidity.

Unlawful fettering of discretion
[144] This was a further fall back position of the respondents, which only arose if the court was against them in terms of their broad first two lines of argument. Mr Cormack began by conceding that it did not come easily from a public body to say that it had unlawfully fettered its discretion in terms of a contract. He accepted that it was not an attractive position to put forward, however it only arose here if the Code was as rigid as the petitioners maintained. It was his general position that the petitioner's construction of the Code unlawfully fettered the respondents' discretion in that it effectively prevented the respondents dealing with cases such as the present one.

[145] Mr Cormack accepted that the respondents did have power to enter into a disciplinary procedure as they had done in the Code. However, he submitted that the Code could not fetter the powers of a Harbour Board given under statute and submitted that that would be ultra vires. That principle was established in The Ayr Harbour Trustees v Oswald (1883) 10 R (HL) 85 and Birkdale District Electric Supply Co Ltd v Corporation of Southport.

[146] He began his detailed discussion by referring to McLean v Paterson [1939] JC 52. The material facts in this case were as follows (page 52):

"The Scottish Milk Marketing Scheme, approved by the Secretary of State for Scotland by the Scottish Milk Marketing Scheme (Approval) Order 1933, by sec. 18, prohibits the sale of milk 'by any producer who is not either a registered producer or a person exempted from registration by or under the provisions of the scheme,' and imposes a penalty for any contravention of this prohibition. Sec. 13 of the scheme enacts: 'There shall be exempted from registration under the scheme producers who sell milk only in small quantities to persons in their employment or to neighbours for their own consumption, and, if any question shall arise as to whether a producer is entitled to exemption under this section, such question shall be determined by the Board.'

In 1933 the Board resolved that, until otherwise determined by them, exemption from registration under sec. 13 of the scheme should apply to persons whose sales to neighbours did not exceed in the aggregate three gallons in any one day, and who did not supply more than six neighbours in any one day."

[147] Lord Wark at pages 58 and 59 of his opinion said this:

"If I had thought that the meaning and intention of the resolution of 1933 was to decide that no person is entitled to exemption under that section unless he falls within the description of the resolution, I should have had no hesitation in holding it to be ultra vires of the Board. The power given to the Board by this section appears to me to be a power to determine individual cases upon a consideration of the circumstances of each case. In such a matter I think they must act judicially after considering the circumstances; and must hear the party if required..."

Mr Cormack took from the above that the respondents could not validly contract to alter their statutory power to require them to leave out of account trends/patterns when considering issues of incompetence.

[148] In support of his position Mr Cormack directed my attention to William Cory & Son Ltd v London Corporation [1951] 2 KB 476 and the judgment of Lord Asquith at page 484:

"But an act cannot be a breach of a term of the contract - express or implied - (let alone a repudiation) unless the term in question is valid. There can be no breach, if the term in question is illegal, contrary to public policy, or (in the case of a corporation) ultra vires the contracting party, or for some other reason waste paper, because in such a case there is no binding obligation, and only a binding obligation can be violated. You cannot break a rope of sand. It starts broken. The term sought to be implied in this case is one whereby the Corporation - a legislative body charged by statute in imperative language with the duty of making bylaws relating, inter alia, to the removal of the refuse in the interest of the public health in the Port of London... engages not to make any bylaws for this purpose which should lay on the claimants burdens other and more severe than those provided for in Clause 1 of their contract with the Corporation, and therefore prevent the claimants from fulfilling their contract by complying with Clause 1 without more.

I consider that such a term whether implied or even express, could not be valid."

[149] What Mr Cormack took from this judgment was that a fettering of a power rather than a complete giving up of a power was sufficient to render the contract ultra vires.

[150] Mr Cormack then turned to Attorney General ex rel Tilley v Wandsworth LBC [1981] 1 WLR 854 and referred in particular to the judgment of Templeman LJ at page 858A where he said this:

"On well recognised principles public authorities are not entitled to fetter the exercise of discretion or to fetter the manner in which they are empowered to discharge the many duties that are thrust on them. They must at all times, in every particular case, consider how to exercise their discretion and how to perform their duties."

Mr Cormack submitted that in the case of Tilley as in the case of William Cory & Son policies prevented consideration of a relevant matter in terms of a statute. These policies had been struck down as ultra vires. In the instant case he submitted the Code had prevented consideration of a relevant matter in an individual case, namely formation of a pattern evidencing incompetence.

[151] This general point he submitted was reinforced in the judgment of Woolf J in Gransden & Co Ltd and another v Secretary of State for the Environment and another [1985] 54 P&CR 86 at pages 93 and 94:

"What then is the significance of the inspector having failed to follow the policy? Does that mean that this court has to quash his decision? The situation, as I see it, is as follows: first, section 29 lays down what matters are to be regarded as material, and the policy cannot make a matter which is otherwise a material consideration an irrelevant consideration. Secondly, if the policy is a lawful policy, that is to say, if it is not a policy which is defective because it goes beyond the proper role of a policy by seeking to do more than indicate the weight which should be given to relevant considerations, then the body determining an application must have regard to the policy."

[152] Mr Cormack submitted that, if the petitioner's construction of the Code was correct, that was precisely what the respondents had done by entering into the Code: they were not entitled by so doing to consider a material consideration, namely a pattern of behaviour on the part of a pilot.

[153] In reply to the petitioner's argument relative to conflicting or overlapping powers, he submitted this: there was no reason why it was necessary in the exercise of the power under section 4 of the 1987 Act to constrain the statutory discretion under section 3(5) by making the respondents leave out a relevant consideration. That was in no sense necessary in order to have a code of practice.

Waiver
[154] Mr Cormack at the outset of this chapter of his submissions accepted that his argument could, as put forward by Mr Ellis, be properly categorised as primarily one of waiver.

[155] The respondents' argument under this head is conveniently summarised at pages 34 and 35 of the Closed Record as follows:

"either expressly or by necessary implication from his conduct in relation to the performance review, the petitioner accepted or acquiesced in, or any event waived any right which he had to object to, the respondent taking into account his placement on performance review and the circumstances in which this was done, including the four earlier incidents, in any disciplinary procedure following upon a further incident during the period of the performance review. Furthermore, by participating in the disciplinary procedure without raising any objection to the taking into account of those matters, down to the stage of intimating that he wished to make representations at a formal hearing, the petitioner accepted that those matters could be taken into account or acquiesced, or in any event waived any right which he had to object to this. The above conduct of the petitioner justifiably caused the respondent and other persons involved in the disciplinary process to understand that he did not object to the taking into account of the performance review and the circumstances in which this was done, including the four earlier incidents and they proceeded to conduct the process on that basis."

[156] The sequence of events upon which Mr Cormack relied in support of his contention that the petitioner had waived his right to object was as follows:

[157] On 1 March the petitioner was sent a letter confirming there was to be a disciplinary hearing before the Disciplinary Committee (production 33) at which

"The hearing will consider all relevant facts and your judgments and actions on the 12^th February 2013, and the previous incidents which resulted in you being on a 12 month performance review."

On the same date in an email from Captain Hague to the petitioner (production 71), he was in particular advised to obtain legal advice. Mr Cormack in developing his argument attached importance to the advice given therein to the petitioner. It was his position that the petitioner was an independent professional in business on his own account and in those circumstances it was not unreasonable to expect him to obtain his own legal advice in advance of the disciplinary hearing. On 12 March the petitioner was sent a further letter (production 37) which again made clear that the earlier incidents would be considered.

[158] This was followed by the disciplinary hearing on 18 March (minutes production 38). At that time all five incidents were considered without any objection by the petitioner. On 28 March a letter (production 40) was sent to the petitioner notifying him of the recommendation of the disciplinary committee and referring to all five incidents. The petitioner thereafter on 29 March wrote to Captain Baker (production 41) making reference to a medical condition which might require him to retire on medical grounds. On 15 May, intimation was made to the petitioner that there would be consideration of the recommendations at the next meeting given that no medical evidence had been submitted (production 48). In the period from 28 March to 15 May nothing was done by the petitioner to raise any objection to the earlier incidents being taken into account. Mr Cormack submitted that the position therefore was that there was continued silence on the part of the petitioner relative to any objection and he continued to take part in the disciplinary process. On 20 May (production 50) a notice of intention to revoke was issued; again no steps were taken to object. On 4 June (production 51) a letter was sent from the petitioner in which he said that he wished to make representations at the hearing. Correspondence was thereafter had with the petitioner's solicitors. It was only on 12 June that a letter of objection was received from the petitioner. Mr Cormack advised that he relied on the whole course of events to the point at which the Board issued its notice of intention to revoke and the fact no objection had been taken throughout that whole period by the petitioner.

[159] Turning to the applicable law, Mr Cormack advised that there was not much difference between what Mr Ellis had laid out and his position.

[160] With respect to the issue of unequivocal abandonment Mr Cormack's position was this: it would have been obvious to the petitioner in advance that the earlier incidents were to be considered by the Disciplinary Committee. It would also have been obvious to the petitioner that the Disciplinary Committee would consider the earlier incidents in deciding what recommendation to make to the respondents. Likewise it would have been obvious to the petitioner that all the incidents having been taken into account and the Disciplinary Committee having made their recommendation they would be considered by the Board at the point of the issuing of the notice of intention to revoke. He submitted that where the petitioner had this knowledge and where these stages had been gone through without objection there had been unequivocal abandonment. It was his submission that this conduct was not consistent with reserving his right to object as it would have been obvious to the petitioner that the earlier incidents were being considered as the case went through the disciplinary procedure within the Code. He submitted that there was a clear unequivocal implication of abandonment of the objection from the actings of the petitioner.

[161] As regards knowledge on the part of the petitioner of the right it was being asserted he had abandoned, Mr Cormack submitted that the requisite knowledge ought at least to be imputed to the petitioner as he was taken to know the terms of his authorisation and the Code was part of his authorisation and in these circumstances he was properly placed on inquiry. He submitted that that was sufficient knowledge.

[162] In support of the above proposition Mr Cormack first directed my attention to City Inn Ltd v Shepherd Construction Ltd 2010 SC 127 and the observations in the opinion of Lord Osborne at paragraph 81:

"Having said that, however, in my opinion, the contention is unsound. The position of the architect under a contract, such as that with which we are dealing, is that he administers the contract in several respects in consequence of the status accorded to him by the terms of it. The architect is responsible for a wide range of decision-making in connection with its administration. Not only is that true generally, but it is, in particular, the case in relation to the operation of cl 13.8, under which the architect has had placed upon him certain duties and responsibilities which are set forth in that clause. In these circumstances, I consider that an architect must generally be presumed to know the terms of a contract for the operation of which he was responsible, particularly a part of it the operation of which must necessarily involve him directly. In Raphael and anr v Wilcon Homes (Northern) Ltd Lord Johnston said (p 942):

'In particular, the defenders must be taken bound to know the terms of their own contract and to take any other view simply because of technicalities of pleading would be wholly artificial.'

Just as a party to a contract therefore must generally be presumed to know the terms of the contract, so too, in my opinion, an architect must generally be presumed to know the terms of a contract which it is part of his responsibility to administer. To take any other view would be absurd and, in my opinion, undermine the operation of the whole law of contract. Accordingly, had it been necessary to do so, I would have rejected this ground of appeal."

What he took from the above passage was this: by analogy, he submitted, the Code set the context in which the petitioner operated and therefore he must be taken to know its terms and that gave him such knowledge as could found the contention that he had imputed knowledge of the right to object.

[163] He also relied on the following passage in Murray v Scottish Boatowners Mutual Insurance Association in the opinion of Lord Murray at 330 J:

"senior counsel for the pursuers accepted that he was pleading waiver by the defenders and he did not quarrel with the defenders general statement of the law. He maintained however that where the defenders had taken charge of the raising of the sunk vessel and the procuring of tenders for its repair they were put on their inquiry into all aspects of the vessel's seaworthiness at that time. They could not then assert its unseaworthiness over two years later. Though minimal, the averments were not so wanting in relevancy or specification that they should be excluded from probation.

Having considered the matter I think that senior counsel for the pursuers is correct - though none of the cases appear to vouch it - that there may be circumstances in which parties may be personally barred from founding upon a breach about which they did not have full knowledge if they were put on their inquiry at the material time, failed to follow it up, and thereafter acted as if the matter were concluded. These would be circumstances in which it would be reasonable to impute to that party the full knowledge which the law requires."

[164] Mr Cormack attached some importance to the observations of Lord Murray in that it was his position that the petitioner had been put on inquiry in this case in that:

1. The Code was made part of the petitioner's authorisation.

2. Pilots were well-used to working within the Code.

3. Pilots had the protection of insurance.

4. Mr Hague at paragraph 43 and Mr Wibberly at paragraphs 49 and 50 of their affidavits refer to information regularly given to pilots about their ability to obtain legal advice relative to incidents.

5. The Code was referred to at the performance review. The petitioner accepted that the performance review was outwith the parameters of the Code and thus showed knowledge of the disciplinary procedure within the Code.

6. In the letter of 25 October 2012 from the respondents to the petitioner immediately following the performance review meeting (production 16) the Code was referred to.

7. In the letter of 12 February 2013 from the respondents to the petitioner (production 20) again the Code was referred to.

8. There was reference to the provisions of the Code in production 23, another letter from the respondents to the petitioner, and it was referred to at the preliminary hearing see: minutes (production 24).

9. He was told to get legal advice by Captain Hague.

10. The petitioner via his insurer got in touch with Mr Youde, a solicitor, prior to the disciplinary hearing. (It was however not disputed that at that time Mr Youde, was not acting for the petitioner and gave no detailed legal advice. It was not until on or about 12 June 2013 that Mr Youde became the petitioner's solicitor and wrote to the respondents raising the issue of the Cooper case see: production 57. Mr Youde when first contacted by the petitioner advised him that he could not act for him in terms of the insurance policy at that stage.)

11. He should have obtained legal advice and funded it himself when he could not initially obtain representation in terms of the insurance policy.

12 The petitioner presumably reported back to Youde after the disciplinary hearing.

13. After a delay to allow submissions relative to medical evidence he was told that they were going to proceed to consider recommendations.

[165] It was submitted by Mr Cormack that looked at as a whole, and at least from 1 March 2013 the petitioner was aware that the disciplinary procedure was underway and that that may lead to revocation of his license. He was put on notice to obtain legal advice and he effectively closed his eyes thereto.

[166] Mr Cormack made two further points about the issue of knowledge. First, he submitted that the case of Porteous was not supportive of the petitioner's position because Lord Sutherland accepted that there could be imputed knowledge. Secondly, with respect to Mr Youde, he was not making any suggestion that he was in any way at fault, rather the point which he was seeking to stress was that had Mr Youde been properly instructed by the petitioner the point regarding objection would have been readily apparent to him.

[167] On the basis of the foregoing he submitted that the requirement of knowledge of the right waived was satisfied.

[168] Turning to the issue of reliance, Mr Cormack submitted that reliance occurred in this way: first, if there had been an objection to the performance review and the earlier incidents being dealt with by means of a performance review then disciplinary procedure would have been entered into at that stage (see: Captain Baker's supplementary statement) at paragraph 2.

[169] The evidence also showed that the Disciplinary Committee took into account the earlier incidents and the performance review and they took these matters into account because there was no objection by the petitioner (see: Captain Baker's affidavit at paragraph 49; Mr Wibberly's affidavit at paragraph 36; Captain Hague's affidavit at paragraph 34 and Admiral Lockwood's affidavit at paragraph 9).

[170] The same position arose with the respondents at the intention to revoke stage when no objection was again taken.

[171] In these circumstances it was his position that it was unrealistic to look for a greater degree of reliance. Matters continued to proceed through the disciplinary proceedings as he did not object. Thus the disciplinary procedure was conducted on the basis that he did not object. In circumstances such as this continuing to proceed could amount to reliance. In support of this contention he relied on Donnison v The Employers' Accident and Live Stock Insurance Co Ltd (1897) 24 R 681 which was approved in the City Inn case at paragraph 68. In the Donnison case a widow presented a claim out of time to an insurance company. The insurance company sought in terms of the policy a post-mortem examination of the deceased. The company did not inform the widow that they were reserving their right to take objection to want of timeous notice of the claim. The widow consented to a post-mortem. The court held that the insurance company had waived their right to rely on non-timeous objection.

[172] Mr Cormack argued that in that case there had been no more reliance by the widow on the actings of the insurance company than that she continued with her claim in terms of the insurance policy. That was, in his submission, no different from the circumstances in the instant case where the respondents had in reliance on the petitioner's failure to object done no more than continue with the disciplinary procedures.

[173] In addition he pointed to the decision in Hanlon v Traffic Commissioner 1988 SLT 802 and in particular the observations of Lord Prosser at 805F-I:

"It was suggested that the silence could not really be seen as having induced the introduction of the new scheme, since in order to stop its coming into effect it would have been necessary for the petitioners to seek and obtain judicial review within the month of August. I do not however think that there is much substance in this line of argument, since the raising of proceedings and application for interim relief would have been possible and could have been effective to prevent the course which was being followed. There is perhaps more force in the argument that once the scheme had in fact been brought into effect, the continuing delay of the petitioners could not be seen as having induced any actions or as having been relied upon by others, since there would have been no alternative course open by that stage unless and until the decision were suspended or quashed. I am not however greatly concerned in relation to acquiescence with the delay in taking proceedings after 1 September. Although the delay before that date may not seem long it was in my view an unreasonable delay having regard to all the circumstances, and being coupled with full knowledge and implied reliance by others I see it as establishing acquiescence by mora and taciturnity. In these circumstances I consider that the petitioners are barred from seeking the present review and I accordingly uphold the respondents' second plea and refuse the petition."

[174] Mr Cormack submitted that the above was a situation of implied reliance and although concerned with mora and taciturnity there was no reason in principle why a similar approach could not be taken in a case of waiver. What had happened here was that further steps in reliance on the failure to object had been taken; no objection had been taken to stop the proceedings.

[175] Moving on, he referred to HMV Fields Properties Ltd v Bracken Self Selection Fabrics Ltd 1991 SLT 31 and the observations of the Lord President at 34J-K:

"But if, as happened in this case, the tenant remains in occupation of the subject and tenders payment of the rent when it falls due, and if the rent is then accepted in his turn by the landlord, matters are being conducted on a basis which is inconsistent with the contract having come to an end. Where the facts are as simple as that, it seems to me that there is little more to be said. The landlord's actings in accepting the rent from the tenant who remains in possession, if looked at objectively, provide a clear indication that he is willing that the contract should remain in force."

Mr Cormack said that in the instant case by analogy the respondents had continued to remain in a position where they wished to consider all five incidents and the petitioner had taken part in the procedure showing that he did not intend to take objection to these being taken into account.

[176] Lastly, he referred to Thomas v University of Bradford (No 2) [1992] 1 All ER 964. In this case Bradford University did not follow the procedure it should have followed relative to disciplinary proceedings. Lord Browne-Wilkinson sitting as the university visitor observed at page 979a to f:

"Accordingly, if the matter stopped there the removal from office of Miss Thomas would, in my judgment, have been invalid because of a substantial failure to follow the prescribed procedure. However, the university in its submissions has relied on the fact that from the start Miss Thomas and her advisers well knew that the ordinance 13 procedure was not being followed: they were expressly told so on 19 October 1982. Yet no objection was raised either on 19 October or at any later stage until the issue of the writ in the first action. Miss Thomas and her advisers took part in the hearings before the joint committee and the council. In the circumstances, it is said, it would be wrong to permit Miss Thomas to go back on what was manifestly her acquiescence, with the benefit of legal advice, in the procedure actually adopted and which (though incorrect) complied with all the rules of natural justice.

This argument based on waiver or acquiescence was not pleaded by the university but, subject to the question of costs, I think it right to allow the university to raise the point at this stage.

I have no doubt that, according to ordinary rules of contract, the failure by a party who has full knowledge of the facts to object to a proposed procedure which is then adopted and used at considerable expense of time and money by the other party prevents the non-objecting party from subsequently relying on a failure to follow the procedure laid down by the contract. In contract law, the non-objecting party would be held to have acquiesced in the variation of contractual procedures. To the extent therefore that Miss Thomas's claim is based on her contract of employment, she must be taken to have waived her right to insist on the contractual procedure."

This case, he submitted, was one where the university simply continued to follow a line of procedure in absence of objection, which was very similar to the situation in the instant case.

[177] For these reasons, he submitted, reliance is made out here and waiver had been made out.

[178] Mr Cormack then made a further submission in the alternative. He submitted that if Captain Macinnes' knowledge relative to the Cooper case was considered to be critical in relation to the issue of knowledge of the right it was contended on behalf of the respondents he had abandoned then that would be a matter which would have to be tested by the leading of evidence. This arose as a result of the averments made on behalf of the respondents regarding Captain Macinnes' actual knowledge of the Cooper case at the relevant time, which averments were denied on behalf of the petitioner.

Exercise of discretion
[179] The final chapter of the respondents' submissions was this: if the court were satisfied that the petitioner's challenges were well-founded nevertheless it should not exercise its discretion in favour of the petitioner.

[180] Discretion to refuse remedies sought did exist in exceptional circumstances. It was his position that such exceptional circumstances were present in the instant case.

[181] He directed the court's attention to the practical effect of granting the petitioner the remedies sought. The practical effect was the exclusion from the disciplinary procedure forever of the earlier incidents which formed a significant part of the reasoning upon which the decisions in the course of the disciplinary procedure had been reached. It was accepted by the petitioner if all five incidents could be taken into account that the respondents acting reasonably could revoke. There were, at the very least he submitted, serious concerns about safe navigation on the Forth if the petitioner were allowed to continue as a pilot.

[182] In considering whether to exercise my discretion he suggested that the following factors favoured the petitioner not being granted the remedy sought:

1. The procedure followed had been fair and in accordance with natural justice.

2. The petitioner would be able to put his position forward to the directors.

3. The petitioner had made concessions regarding his competence, in particular his acceptance of the position at the performance review. Further, there was the letter from the petitioner saying that he might have to retire.

4. The petitioner was not able to point to any actual prejudice in the way the matter had been dealt with to date. Mr Cormack accepted that if substantial actual prejudice had been shown then there would have been a strong basis for not exercising the discretion in the manner sought by the respondents.

[183] Lastly Mr Cormack turned to the petitioner's argument with reference to the fifth, sixth and seventh remedies. He submitted that even if the petitioner otherwise succeeded it did not mean that the suspension was unlawful.

[184] He maintained that to date the petition had been defended on substantial and arguable grounds and therefore the suspension to date was lawful.

[185] With respect to the future even if the petitioner's arguments relative to the earlier incidents were well founded the respondents would still be able to consider the fifth incident. It was his submission that the fifth incident was a serious one. He referred to para 54 of his note of argument which was in the following terms:

"The evidence in any event is to the effect that the Winter incident was a serious incident which was not caused by an isolated error of judgment. Reference is made to the evidence of RB, PW and JH and of Captain Bordas which has already been discussed in relation to the Petitioner's competence. For example, RB explains that the incident occurred because the Petitioner maintained an excessive speed over a period of time and he essentially lost control of the ship and ran out of sea room (RBA 35-3 and 42-45). PW is also of the view that the Petitioner travelled up the Diversionary Channel at speed and ran out of sea room, he approached too hard and virtually ignored the wind and tide conditions (PWA 21-22). PW confirms that use of the Diversionary Channel was not appropriate in the circumstances. For the Winter and the outgoing ship to be in such close proximity in the circumstances was dangerous (PWA 26). The incident was a serious one (PWA 46). The Petitioner carried out a manoeuvre which PW would never have attempted and one which involved turning the Winter into the path of the outbound vessel (PWA 58). There was an additional clear failure in not directing the first available tug to the stern of the Winter (RBA 36, PWA 19 and 59). JH says that the factors which contributed to the Winter incident - speeding up, not waiting for the outbound ship to pass and not directing the tug appropriately - showed a lack of judgment and a lack of piloting skills all of which were very serious (JHA 37). Captain Bordas concludes that the Winter incident was caused by a lack of forward planning (report page 37), there was no reason why the Winter could not have been slowed down or held to ensure safe passage without using the Diversionary Channel and there was a possibility that the Winter could have been swept outside the Channel (page 35)."

It was his position that looking to the above a reasonable disciplinary committee could properly hold that the fifth incident justified a notice of intention to revoke.

Discussion

[186] The first issue before the court is this: have the respondents in dealing with the petitioner's case complied with the Code? In order to arrive at a decision on this issue the court must answer this question: what is a sound construction of the Code. In order to answer this question the logical starting point is I believe the decision of the court in the Cooper case.

[187] It appears to me that the observations of the court in the Cooper case have to be viewed in the context of the following factual matrix:

(i) In the Cooper case there were three incidents. There was not, as I understand it, said to have been a pattern or common theme in these incidents. In particular, the circumstances giving rise to the third incident, were entirely different from what had given rise to the first two incidents as set out in paragraph 5. In neither of these incidents had the master declined to act as the pilot advised. In the third incident:

"The master of the Frisian Trader executed his own navigation manoeuvres, despite being in an area of compulsory pilotage

...

The reclaimer did not notify the duty harbour master of either of the occasions when the master of the Frisian Trader declined to act as he advised."(see: page 767, paragraph 6).

The approach to the three incidents was to look at them as cumulatively amounting to incompetence. The issue was not approached as raising a question of a pattern or common theme arising in the three incidents. (see paragraph 35 of the opinion.)

(ii) In the Cooper case when the reclaimer was informed that there was to be a preliminary hearing in terms of clause 6:2.4 he was not told the earlier two incidents were to be taken into account (see: page 768, paragraph 8).

(iii) In the Cooper case the preliminary hearing in terms of clause 6:2.4 did not investigate the two earlier incidents and nor had they been inquired into by the Harbour Master and Captain Kelley (see: page 768, paragraph 9).

(iv) The first two incidents were not subject to investigation at the 6:2.5 hearing (see: page 772, paragraph 18).

(vi) In the Cooper case there was no performance review.

(vii) The reclaimer's core complaint as set out at paragraph 17 of the opinion of the court was this:

"senior counsel for the reclaimer stressed that the facts of the first and second incidents had never been investigated in detail... there was no agreement that there had been any fault on the part of the reclaimer relative to the first and second incidents."

[188] Senior counsel at paragraph 18 set out the main thrust of his submissions and went on to contend as follows:

"if the three incidents were to figure in the disciplinary proceedings against the reclaimer, it was necessary for each incident to be investigated separately; and, in any event, necessary for each of them to be investigated promptly and thoroughly in accordance with the disciplinary procedures in the code of conduct. That had not occurred in respect of the first and second incidents, even although the chief harbour master had received a report about each incident within 24 hours of its occurrence. Neither incident had been the subject of an investigation by the chief harbour master, carried out without delay, under Cl 6.2.3 of the code of conduct; or a preliminary inquiry, held as soon as practically possible, under Cl 6.2.4; or a disciplinary hearing under Cl 6.2.5. It was clear from the provisions of the code of conduct that any incident involving circumstances giving rise to allegations of incompetence or misconduct should be investigated fully and without delay. Incidents could not be 'parked' on one side by the respondents and resurrected later on, when it might not be possible to investigate them fully, for example, because a vessel involved had sailed. Nor could such incidents be referred to in passing and without proper investigation, when another incident was being investigated in accordance with the provisions of the disciplinary procedures. The detailed procedures laid down in the code of conduct were designed to recover evidence quickly and intended to protect pilots, by ensuring that any incident that fell to be considered by the respondents, after they had received a recommendation from the disciplinary committee, had been fully and promptly investigated."

[189] At paragraph 19 senior counsel said this:

"However, none of those references explained why the earlier two incidents were relevant to disciplinary proceedings being taken against the reclaimer in respect of the third incident."

It appears to me that the factual matrix in the instant case was entirely different from that in the Cooper case for the following reasons:

1. In the instant case there was a performance review. This fell outwith the disciplinary procedure, however, it was not a matter of dispute that the petitioner had consented to the earlier incidents being dealt with at the performance review. The minutes for the performance review hearing are production 16.

[190] It appears to me at that hearing that the earlier incidents were each individually looked at and investigated. The formal position regarding each incident as understood by Mr Baker and Mr Hague from the written reports lodged were put to the petitioner and he was given an opportunity to reply. It does not appear to me that having regard to the terms of the minutes (to which as I understood it no exception was taken) the factual circumstances of the earlier incidents were in material dispute at that stage. I am unable to identify from the minutes any factual issue upon which there was material dispute.

[191] Overall, the key facts of the earlier incidents in terms of the type of vessel, vessel position, location of incident, heading, measured speed, use of tugs, orders given by the petitioner and the making of contact causing damage were not in dispute in the course of the performance review. I would also observe at this stage that that appeared to be the position throughout the disciplinary procedure which followed upon the fifth incident.

[192] There is nothing in the minutes to suggest that there was evidence which the petitioner at the time wished to present at the performance review which would have any material effect on the understanding of the factual matrix of the earlier incidents.

[193] Beyond that, I observe that the petitioner accepted as a result of the performance review hearing that he would be placed on performance review for a period of 12 months. No objection was taken on behalf of the petitioner to this finding. I conclude that the Performance Review Board ("the Board") by placing him on this review were holding that there were grounds for concern regarding the petitioner's competence as a pilot and the petitioner by not challenging this finding was accepting that these concerns about his competence were justified. Why else would the petitioner accept being placed on performance review? Moreover, the petitioner had, prior to the performance review, been sent by the Association of Forth Pilots on an additional simulator course. Again, the petitioner's acceptance of such a course of action is difficult to understand except in the context of an acceptance by him of some justified concern about his competence. Otherwise, why is he being sent on the simulator course?

[194] I also note the following in the minutes of the performance review hearing at page 4:

"BB noted that the words 'surprised', 'underestimated', 'stronger than anticipated', 'approaching at too great a speed' and 'I then realised' featured in KM's written reports and asked would you not expect an experienced pilot to be more aware of the developing circumstances than these words suggest? It was pointed out by JH that the use of such words suggest that KM was not fully aware of the situation and in future more thought should be given to the language used in written reports. KM accepted this point but pointed out that he was pressed for time as he was going to be away travelling the next day."

The above appears to me to be an express acceptance there was some justification for concern on the part of the Board.

[195] The above, in my view, are critical differences between the instant case and the case of Cooper. In Cooper there was no investigation in detail at any stage of the earlier two incidents and as I understand it the factual matrix of the first two incidents had not in any real sense been established. In addition, there was no acceptance, as I understand it, in the Cooper case that there should have been any measure of concern regarding the reclaimer's competence arising from the occurrence of the first two incidents.

[196] Therefore it appears to me that the specific mischief to which the court's observations in the Cooper case was directed, namely: the taking into account of the earlier two incidents without establishing the facts of those incidents and their relevance to the issue of the pilots competence and where the reclaimer was not given an opportunity to put his position regarding these two earlier incidents was not present in the matter before me.

2. It appears to me on a sound understanding of these minutes that what was being looked at and what was identified by the Board when they considered these incidents was a pattern of similar incidents and similar problems arising on the part of the petitioner in the carrying out of his duties. This is, I believe, clearly set out at page 4 of the minutes. That I believe is a different position from the Cooper case where the third incident appears radically different from the first two incidents. Accordingly, in the case of the petitioner what was being considered was a pattern case and in the case of Cooper what was being considered was a cumulative and not a pattern case.

3. Confirmation that at the performance review stage the earlier incidents had been investigated is found in the following passage set out towards the start of the minutes of the preliminary inquiry (production 24):

"JP asked if this was as a result of the review KM is already on following previous incidents. BB confirmed that all incidents were investigated however this incident required the formal approach as per the Code of Practice due to the previous incidents and the fact that KM was on a performance review."

Further on a sound understanding of the minutes of the preliminary inquiry the implications arising from the earlier incidents and the performance review are taken into account. Thus unlike in the Cooper case the preliminary inquiry does consider the earlier incidents, in so far as that is the context in which the fifth incident is being considered.

4. The minutes of the disciplinary hearing in terms of clause 6:2.5 make it clear that the earlier incidents were considered. This is different from the Cooper case where at the disciplinary hearing stage once more the two earlier incidents were not considered. The minutes of the disciplinary

hearing are number 38 of process and at paragraph 2 of the minutes it is clear that the petitioner is informed the purpose of the hearing is to consider all five incidents.

5. Unlike in the Cooper case where the relevance of the earlier incidents were never explained to the reclaimer it is clear in the instant case that the relevance of the earlier incidents was made clear at every stage.

[197] Accordingly I conclude that the circumstances in the Cooper case and the instant case are in their essentials radically different. When the court in Cooper opined at paragraph 33 (as I have set out earlier) it was against a background which was not present in the instant case, namely, in summary: no investigation of the earlier incidents, in circumstances where there was no measure of agreement as to the facts of those earlier incidents and where there had been no acceptance of any proper concerns arising as regards the competence of the pilot with respect to the previous incidents, from which it could be inferred they were capable of supporting a finding of incompetence; where there had been no performance review; where there was no question of any pattern in the incidents; and where the relevance of the earlier incidents were at no stage made clear to the reclaimer.

[198] It appeared to me that the essential mischief with which the court was dealing in Cooper, namely: the lack of any investigation at all of the earlier incidents and their nevertheless being taken into account in the disciplinary process was not present in the case before me.

[199] Having concluded that the circumstances of the two cases are fundamentally different, I do not believe that the opinion in the Cooper case can be read across to the circumstances of the instant case. I believe the present case can be distinguished for the above reasons from the case of Cooper.

[200] With respect to the timing issue raised by senior counsel for the petitioner I am clearly of the opinion that this was not an issue which was fully addressed in the Cooper case in the course of submissions. Moreover, I cannot find at any part in the opinion of the court a consideration of that issue. In this context it is also noteworthy that in disposing of the case the court in Cooper appears not to have decided that the two earlier incidents could not be considered in any future disciplinary proceedings ie it did not hold that these previous incidents had become time barred. Rather the court returned "to the parties the issues outstanding between them as to the reclaimer's authorisation as a pilot." (see: paragraph 39) Accordingly I believe that this issue is one which is at large for me to consider.

[201] Having set out my conclusions regarding the Cooper case I move on to consider the proper construction of the Code.

[202] The petitioner's contention on construction can be summarised as this: before any incident may be taken into account to any extent as a basis for a finding of incompetence, first each of the procedures under 6:2.3, 6:2.4 and 6:2.5 of the Code must take place and, secondly, they require to take place promptly following the incident and, if the foregoing does not occur, then that incident must be left wholly out of account in any disciplinary process which may arise following a later incident.

[203] It appears to me that the foregoing is not a sound construction. Rather I am persuaded that the construction contended for on behalf of the respondents is sound, namely: that the Code is complied with in cases of allegations of incompetence arising from a series of incidents showing a pattern or common theme if each of the stages of the Code is followed at least after the last of the incidents which precedes the disciplinary process.

[204] In support of that conclusion I would observe first: that the respondents contended for construction deals with the mischief to which the observations of the court were directed in the Cooper case in that before any incident can be used to form any part of a basis for a finding of incompetence it would be subject to proper investigation under the terms of clause 6:2.3, 6:2.4 and 6:2.5. Thus I believe that such a construction would be consistent with the opinion of the court in the Cooper case.

[205] Secondly when construing paragraph 6 of the Code I believe it requires to be considered in the context of the code as a whole and in particular that the respondents principal duty under the Pilotage Act is to provide a pilotage service which secures the safety of ships navigating in its harbour. Looked at objectively it was clearly parties intention to secure the safety of ships navigating on the Forth.

[206] The petitioner's construction would result in this case and in others where incidents which in themselves were minor but when taken together with a final incident were shown to form a pattern of behaviour amounting to incompetence could not be dealt with . That, in my judgment, is an extreme position, which is difficult to reconcile, with the context of the Code as a whole in terms of which safety is a principal duty placed upon the respondents.

[207] I accept counsel for the respondents' proposition that the Code is intended to be a document for provision of a safe pilotage service and the petitioner's contended for construction of the Code would not meet that intention.

[208] It must not be forgotten that viewed objectively the terms of the disciplinary procedure are also clearly intended to protect the pilot, the holder of a public office, and to see that allegations of incompetence and misconduct are properly investigated in terms of a fair procedure. However, I cannot see that the pilot would not be protected in terms of the respondents' contended for construction. All of the incidents would be taken through the full disciplinary procedure following upon the final incident. Furthermore, if any issue of actual prejudice, arising from earlier incidents not having gone through the full disciplinary procedure shortly following their occurrence arose, the pilot would be in a position to raise that issue. When the disciplinary proceedings were started he would not be prevented from raising that issue and if it were not dealt with fairly he could raise judicial review proceedings.

[209] Beyond that thirdly the petitioner's construction would mean that where following an initial review in terms of 6:2.3 the Chief Harbour Master decided that a letter "advising of concerns raised by the incident is sufficient" (see 6:1.2) that letter could not at a later date be considered and taken into account. This would be a very strange outcome because it would prevent there being taken into account in later disciplinary proceedings a pilot's acts or omissions of the same type which had been the subject previously of an expression of concern from the CHM.

[210] Fourthly it seems to me on consideration of clause 6 that there is a recognition that not every incident will, of itself, be of such a character to require it to go through the full 6:2.3, 6:2.4 and 6:2.5 procedure. Clause 6:2.3 is worded as follows:

"In all cases where the Forth Ports Chief Harbour Master acting reasonably considers appropriate he, together with one of the pilots from the Pilotage Management Committee, will investigate the circumstances of the alleged incompetence or misconduct without delay." (my emphasis)

It is apparent from the language in the provision that not all cases can properly proceed beyond consideration by the CHM. It is clear that the clause confers a discretion on the CHM as to whether matters should proceed beyond that stage. It would not be Wednesbury reasonable in each case of minor incompetence or which did not of itself evidence incompetence to go beyond this stage. I am persuaded that for every case of such a character to be taken through the full disciplinary procedure would be contrary to the way that the Code is structured and to the intention of parties. I hold that to take a case of such a character through every stage of the disciplinary procedure would be unlawful, in that it would be Wednesbury unreasonable and any such attempt would be open to challenge by judicial review which would be likely to be successful. However, on the petitioners' construction it would be necessary to have every such incident taken through the whole disciplinary procedure before it could be used at a later date as part of a case of incompetence. In my view the structure of clause 6 points clearly to the petitioner's contended for construction not being sound. The construction contended for by the petitioner renders it impossible to deal with a case of incompetence based on a series of minor incidents showing a pattern which could amount to incompetence.

[211] I am persuaded that the respondents' solicitor advocate is correct when he submits that the discretion imposed upon the CHM in terms of 6:2.3 acts as a trigger for the rest of the disciplinary procedure. That must be so: it is only at that stage that the CHM can decide whether an incident on its own may found a case of incompetence or when taken together with previous incidents may show a pattern founding a case of incompetence.

[212] I accept Mr Cormack's submission that as a matter of principle and language 6:1.2 can properly encompass more than one incident.

[213] I also believe that some support for the respondents' contended for construction can be obtained from the language used in 6:2.3:

That the CHM "with one of the pilots from the Pilotage Management Committee will investigate the circumstances of the alleged incompetence."

Again as a matter of principle and language, it seems to me, that these words can encompass more than one incident. There appears to me to be nothing in the language of the disciplinary procedure, when looked at as a whole, that means that a series of incidents cannot be investigated at one time. If it is accepted that 6:2.3 is a trigger provision there is nothing in the language of the disciplinary procedure to the effect that each incident must go through the full disciplinary procedure shortly after its occurrence in order to be used later as forming part of the consideration of incompetence.

[214] Senior counsel for the petitioner laid particular stress on the timing provisions within the full disciplinary procedure as supporting his construction. This submission is answered by looking at 6:2.3 as a triggering provision. Moreover, as I have stated earlier, the respondents' construction in no way prevents any issue of prejudice arising from the age of previous incidents being raised and dealt with in the course of the rest of the disciplinary procedure.

[215] I also accept as advanced by the solicitor advocate for the respondents that the disciplinary hearing's powers, as set out in clause 6:2.5(iv), are wide, giving them power to "review all facts which may be relevant to the allegations of incompetence". If there are said to be a number of incidents tending to show a pattern, I cannot see how all of these incidents would not be relevant to the allegation of incompetence. The width of the jurisdiction again suggests that the respondents' contended for construction is to be preferred.

[216] A further factor which, in my opinion, favours the respondents' construction is this: the situation of a series of minor incidents which when taken together as a pattern give rise to possible incompetence is a reasonably foreseeable one. I have said, the language of the disciplinary procedure within the Code is wide enough to cover such a situation. At least one of the principal purposes of the Code is ensuring safety yet the petitioner's construction would lead to such a reasonably foreseeable situation not being capable of being dealt with at all. The CHM in the exercise of his discretion in terms of 6:2.3 could not, as I have said, have a minor case made the subject of further disciplinary procedure as to do so would be perverse and would be open to challenge by way of judicial review. The petitioner's contended for construction it seems to me having regard to the language, context and purposes of the Code is not a sensible one in that the respondents would in effect be barred from considering a series of events and a pattern which emerged therefrom. I believe that it is inherently unlikely to have been the intention of the parties to the Code that such a situation should arise. For this further reason I conclude that the respondents contended for construction is a sound one.

[217] I believe that Mr Cormack was correct in submitting that there was a tension in the petitioner's approach in the sense that he argues that the fifth incident is not enough on its own to establish that it is exceptional and therefore amounts to incompetence, but the interpretation of the Code for which he contends, is that in a pattern case only one incident can be looked at. I accept that this is a contextual argument against the petitioner's interpretation of the Code.

[218] Accordingly for the foregoing reasons I believe that the respondents contended for construction is to be preferred as the sound one.

[219] I now turn to consider whether there has been compliance with the Code in terms of the respondents' construction which I have accepted as the sound one.

[220] In terms of the 6:2.5 stage of the procedure all five incidents were considered (see: production 38).

[221] With respect to the 6:2.4 stage of the disciplinary procedure Mr Cormack conceded this was perhaps the weakest part of his submission that all five incidents had been considered within the disciplinary procedure following the fifth incident. However, his position was that there was just sufficient for compliance. He relied on this part of the minute of the preliminary inquiry (production 24):

"JP asked if this was as a result of the review KM is already on following previous incidents. BB confirmed that all incidents were investigated however this incident required the formal approach as per the Code of Practice due to the previous incidents and the fact that KM was on a performance review"

I am not persuaded by this submission. I note that the opening paragraph of the minutes says this:

"Bob Baker opened the hearing by advising all present that this was an investigative hearing and being carried out in line with the procedures within the Pilotage Code of Practice. The purpose was to ascertain the circumstances of the events involving the vessel Winters for investigation by BB and PW and a report would be produced on the findings."

Thereafter within the body of the minute there is only discussion of the incident involving the MV Winter. I can find no discussion of the earlier incidents.

[222] When the decision of the preliminary inquiry is looked at (production 26) I note it is headed and the first paragraph thereof was in the following terms:

"Preliminary Inquiry into Incident Involving

MW Winter 12^th February 2013

Approaches to Grangemouth Lock

As per section 6:2.4 of the Pilotage Code of Practice a preliminary inquiry has been conducted to investigate the circumstances of the incident and the action of the pilot. The inquiry was conducted by and the purpose of the investigation was to establish the facts leading up to the incident."

Thereafter in the body of the decision only the MV Winter incident is considered.

[223] It is reasonably clear that at the preliminary inquiry the context of the hearing is the background of the earlier incidents and that the fifth incident is being looked at in that context. However, the earlier incidents were not investigated at the preliminary inquiry and in those circumstances I am of the view that the Code as construed by the respondents has not been complied with.

[224] In summary on the first issue I prefer the respondents' construction of the Code but hold that on that construction the Code has not been complied with.

Mandatory/directory

[225] In terms of this argument it was contended that in terms of either of the contended for constructions of the Code, such failures as there had been did not invalidate the decisions and procedure to date.

[226] I first will consider this submission on the basis that (as I have held) the respondents' construction is the sound one.

[227] The secondary position of the respondents was this: if the court held that there was a failure to comply with the Code that did not necessarily invalidate the decision and the procedure to date.

[228] The above contention required a consideration of what on a sound construction was intended by parties to happen on a failure to comply with the relevant parts of the Code; was it intended that such failure should result in parties not being able to deal with the matter in question?

[229] The first question the court has to ask itself is this: does the failure to follow the procedure amount to a flagrant breach of a fundamental obligation? (See: the Charles case at paragraph 16).

[230] The petitioner's position is to say that it is such a flagrant breach of a fundamental obligation. Senior counsel submits that in relation to the first two incidents two steps in the disciplinary procedure have been ignored and with respect to the third and fourth incidents one step has been ignored. Moreover, it is argued that these breaches are compounded by the failure in relation to the earlier incidents to comply with the timing provisions. I accept that compliance with the disciplinary code is an important obligation. However, the respondents failure cannot be said to be outrageous or flagrant and rather the defect in procedure is in my judgment towards the other end of the spectrum. The submissions of the petitioner take no account of the performance review procedure and the consideration of the earlier incidents at that time. The petitioner consented to this procedure being followed. As I have already commented: with respect to the facts of the earlier incidents there does not appear to have been any material dispute. The petitioner at that stage had an opportunity to put forward his position regarding these incidents and did so. The petitioner implicitly accepted that there were concerns regarding his competence otherwise he would not have accepted the consequences which arose from that hearing, namely: his being placed on performance review. Moreover, the incidents were subject to full consideration at the disciplinary hearing and although for the reasons stated earlier in this opinion they were not fully considered at the preliminary inquiry, it is clear from the passage in the minutes to which I was referred by Mr Cormack that the earlier incidents formed the context and background to that meeting and to that extent were considered. Against that background I do not believe that there has been a material breach of a fundamental obligation. Rather, I believe the breach is towards the other end of the spectrum, namely: it is a minor breach. In these circumstances I do not believe that it would have been intended that invalidity should result.

[231] This question it seems to me can be tested in a second way by following the approach taken by Lord Malcolm in Shahid v The Scottish Ministers and to consider the essential purpose of the disciplinary procedure. In my view the essential purpose of it is twofold: (i) to ensure that issues regarding the competence of a pilot can be investigated and dealt with in order that the safety of navigation on the Forth can be maintained; and (ii) to ensure that in the investigation of such issues the interests of the pilot are properly protected. I am persuaded that having regard to the performance review procedure and the performance in terms of the Code as above set out, there has been substantial compliance with both of these purposes. In particular I believe that the degree of compliance has sufficiently protected the interest of the pilot in that the investigation of the incidents has been in substantial compliance with the provisions of the Code, when viewed in the context of the performance review procedure. There is no question that natural justice has not been satisfied in relation to this matter

[232] Thirdly in considering this issue regard has to be had to the question of the consequences of non-compliance for parties. In considering this question the court must ask itself, has the petitioner been prejudiced by the failure to comply? The petitioner could not point to any actual prejudice arising from the failures to comply with the Code. At its highest, senior counsel pointed to a potential for prejudice.

[233] The observations of the Privy Council in Wang quoted in R v Soneji at paragraph 16 and the other observations of the judges in Soneji regarding prejudice point to it being an important issue in considering the question of whether a failure should result in complete invalidity. The absence of actual prejudice here is a factor which militates strongly against the petitioner's construction argument under this head and favours strongly the respondents' construction.

[234] In considering the issue of prejudice, it also seems to me appropriate, to observe that the petitioner took part to a late stage in the disciplinary process without taking any objection and without any issue of prejudice ever being raised.

[235] Fourthly with respect to the issue of consequences I do not believe that it can be held that parties' intention was that such a failure should result in total invalidity.

[236] Approaching this on a basis of considering objectively what intention should be imputed to the parties I consider given the outcome, if the petitioner is correct, namely: that the earlier incidents which, when taken together, on any view give rise to concerns about the competence of the petitioner should be ignored cannot be correct. Such a result approaching the matter objectively cannot have been the intention of parties. That cannot have been parties intention where the respondents are exercising a function protecting the public safety by the issuing and revoking of pilots' licenses. I think such a result viewed objectively and in the light of there being no actual prejudice to the petitioner is inherently unlikely.

[237] It appears to me that given there is no prejudice to the petitioner, the petitioner's interests are outweighed by the countervailing public interest in safety on the River Forth.

[238] Lastly I think that in considering this issue it is important to note that the actings of the respondents have been bona fide (there was no suggestion to the contrary). Nor has there been disrespect for the decision in the Cooper case when one has regard to the way the respondents have proceeded particularly in light of the performance review procedure.

[239] Turning to the situation if I had held the petitioner's construction of the Code in terms of the first argument to be correct I would nevertheless have found in favour of the respondents on the mandatory/directory issue for the reasons above stated which I believe are equally applicable.

[240] There is one additional matter which I have to consider when examining this issue on the alternative basis and that is the timing provisions. There are a number of these contained within the disciplinary procedures of the Code, however, I accept that they lack precision, and they are not specific. Overall, I do not believe they are of such a nature as to cause a failure to comply with them to result in total invalidity, particularly in light of there being no actual prejudice to the petitioner arising therefrom. The reasoning above set out persuades me that failure to comply with the timing provisions does not lead to invalidity.

[241] In summary, for the foregoing reasons I find in favour of the respondents in terms of the argument under this head.

Vires/fettering of discretion
[242] The next chapter of the respondents submissions was this: on the basis that the court was not with the respondents under any of the previous heads then it was argued, the petitioners construction of the Code had the consequence of unduly fettering the exercise by the respondents of their discretion as the Pilotage Authority under section 3(5) of the 1987 Act and therefore was ultra vires and invalid to that extent.

[243] It was a matter of agreement between the parties that The Ayr Harbour Trustees v Oswald and Birkdale District Electric Supply Co Ltd v Southport Corporation established the principle that a contract may not validly innovate upon a statutory scheme set out in an Act by unduly fettering the powers granted by statute to the statutorily constituted authority.

[244] The respondents submit this: the Code unduly fetters their power under section 3(5) of the 1987 Act in that it requires them to leave out of account matters such as patterns or trends which arise from the history of incidents of a pilot which are relevant when considering the issue of the competence of the pilot. The petitioner's reply to this is that there is no such fettering. The petitioner's contention in essence is that all that is required of the respondents in order to consider a pattern case is to go through the whole disciplinary procedure in relation to each incident as it arises and in those circumstances all of the incidents which are said to form the pattern can then be considered. Thus the Code does not in any way fetter the respondents' discretion by not allowing them to consider such a case.

[245] First, I conclude that if in terms of the Code as properly construed the respondents could not consider a pattern case then that would be giving up a part of their statutory birth right. Their powers in terms of section 3(5) require the respondents to revoke or suspend an authorisation granted to a pilot if he has been guilty of incompetence. Clearly a pilot could be shown to be guilty of incompetence as a result of a series of incidents in which he was involved, where each incident if looked at on its own would not be sufficient to establish incompetence, but looked at together they showed a pattern of behaviour which amounted to incompetence. Thus, if the rules give up the power to look at such incidents forming a trend or pattern of behaviour with respect to a pilot the respondents would not be able to exercise their powers in terms of section 3(5) in relation to a whole class of cases. Moreover a class of cases which could reasonably foreseeably arise.

[246] The petitioner's position is that the respondents are not prevented by the disciplinary code from considering such a class of case. The simple proposition put forward on the petitioner's behalf is this: if the respondents comply with their obligations in terms of the disciplinary code by going through each stage of the disciplinary procedure in relation to each incident shortly after the time of that incident then all the incidents can be considered.

[247] If the above contention were correct I should accept that although difficult and time consuming to go through the whole disciplinary procedure every time an incident involving a pilot was reported no matter how trivial that incident might be that would not amount to an undue fettering of the respondents power, as the respondents could still deal with this class of case. However, I am satisfied that the petitioner's contention is not correct in that it requires the CHM not to properly exercise his discretion in terms of 6:2.3. The said paragraph provides that "where acting reasonably [the CHM] considers appropriate ...will investigate the circumstances of the alleged incompetence..." (emphasis added).

[248] On the petitioner's construction of the Code the CHM would have to in every case investigate the circumstances, no matter what the individual circumstances of that incident, as the incident might be the first in a pattern. If the CHM were to behave in this way he would be exercising his discretion in a wholly perverse manner, in that he would not be exercising his discretion at all. He would in every case brought before him, have it investigated, even if he considered it was not required. Not only that, but also thereafter such a case would have to be taken through the whole disciplinary process. It appears to me that such a decision and the taking of every minor case through the whole disciplinary procedure would be open at every stage of the disciplinary procedure to challenge by means of judicial review and I believe the likelihood is that such a challenge would be successful on the basis that the decision to take the case through each stage of the procedure was not a Wednesbury reasonable one. If the foregoing is correct then the Code prevents consideration of matters which are relevant, namely: trend or pattern. The Code would have the effect of turning a relevant consideration into an irrelevant consideration. On the basis of the authorities to which I was referred it appears to me that this amounts to undue fettering.

[249] As regards the second argument put forward by the petitioner under this head I prefer the respondents' reply. It is not necessary in the exercise of the power under section 4 to constrain the statutory discretion under section 3(5).

[250] Accordingly had I been with the petitioner in relation to his primary argument regarding construction, I would have held that the Code in those circumstances unduly fettered the powers of the respondents and refused the relief sought by the petitioner on that basis.

Waiver
[251] The next issue which falls to be considered is this: assuming none of the respondents' arguments to this point have been successful, has the petitioner waived his rights to object to the earlier incidents being taken into account?

[252] A helpful definition of waiver is given in Millar v Dickson 2002 SC (PC) 30 in the judgment of Lord Bingham of Cornhill at page 43, paragraph 31:

"In most litigious situations the expression 'waiver' is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise."

[253] The first question for the court, which flows from the foregoing definition is this: were the actings of the petitioner, said to found the plea of waiver, based on knowledge of the relevant rights? Did the petitioner have knowledge of the right to object?

[254] Such knowledge can be actual or imputed. However, for it to be imputed as observed by Lord Sutherland in the Porteous case at 132C:

"it will not suffice to show that a party had available to him information from which he could have ascertained that he had a right, unless the evidence goes to the extent of showing that he must have known that he had that right and cannot be heard to say that he was ignorant of it."

[255] I am not persuaded that the information upon which the respondents presently rely is sufficient to show that the petitioner must have known that he had this right and could not be heard to say that he was ignorant of it.

[256] As asserted on behalf of the respondents the petitioner was aware of the Code, beyond that he was advised to get legal advice by Captain Hague and did seek to obtain legal advice through his insurers; however, that did not become available until after the disciplinary hearing. That background I believe is not enough to satisfy the test of imputed knowledge as set out by Lord Sutherland. The right of which he required to have knowledge in order to waive it was only established by the court in the Cooper case a decision promulgated as recently as 25 May 2011. Until that decision, the existence of this right which the respondents assert the petitioner has waived was wholly uncertain. Against that background, I conclude that the petitioner cannot be said to have had sufficient knowledge to waive the right to object unless he had actual knowledge at the relevant times of the import and effect of the decision in the Cooper case. It is, I believe, given the character of the right the respondents assert the petitioner was waiving, difficult to envisage circumstances in which imputed knowledge could arise. I am satisfied, that having regard to Lord Sutherland's general statement of the law in the Porteous case it is not enough to impute knowledge to say if he had obtained appropriate advice at the relevant stages he would have known of the right.

[257] Mr Cormack in support of his submission under this head relied on two cases: first, Murray v Scottish Boat Owners. With respect, I would disagree with the Lord Ordinary's observations in that case that being put on inquiry may be sufficient to impute knowledge. In relation to this matter I believe Lord Sutherland's observations are a correct statement of the law. I note that the Lord Ordinary concedes that his position on waiver is not supported by any authority. However, even if I am wrong in the above it appears to me that the Lord Ordinary's observations are very much fact specific. The observations about being put on inquiry, failing to follow up and this amounting to imputed knowledge are in the context of an insurer being put on inquiry relative to a clause in an insurance contract with respect to the seaworthiness of a boat where the insurers were in charge of the raising of the vessel and procuring the tender for repair. That set of circumstances is very different from those in the case before me. The position of an insurer with all the experience which an insurer has to hand, who has full knowledge of the terms of its insurance contract and its thereafter being in charge of the raising of the vessel, thus being offered a full opportunity to consider the seaworthiness cannot be equiperated with an individual pilot, who has no more than general knowledge of the code and has represented himself in a disciplinary process and who could have found out about a right if he had obtained legal advice. Mr Cormack secondly relied on the observations of Lord Osborne in the City Inn case. I believe those observations are of no assistance to the respondents. An architect is in an entirely different position than the petitioner. The architect's position in terms of the contract he administers is a special one given the decision making responsibilities he undertakes in terms of that contract. I would respectfully agree with Lord Osborne's observations that it would be absurd to hold that an architect should not generally be presumed to know the terms of his contract. However, the position of a pilot in relation to the Code is wholly different. It is not part of his responsibility to administer the Code. It cannot be right that in relation to the Code he is in the same position as an architect in relation to the contract he administers.

[258] On that short ground the respondents' case on waiver, on the argument presented to me, does not get over the first hurdle and must fail.

[259] The respondents did, however, have a fall-back position in relation to this particular part of the waiver case. The argument put before me was not to the effect that the petitioner had actual knowledge of the right but rather that he had imputed knowledge. However, there were averments made on record to the effect that the petitioner had actual knowledge of the import and effect of the Cooper case decision at the relevant times. This was denied by the petitioner. This is a matter which could not be settled without the leading of evidence. It had been agreed that no evidence would be led before me. Accordingly in relation to the issue of actual knowledge I will, as I was moved to do by the respondents' solicitor advocate reserve the position.

[260] The next question is this: were the petitioner's actings unequivocally an election to waive the right of objection? In discussing this issue I have assumed that he had knowledge of the right.

[261] Looking to the whole circumstances I believe that it can by implication be said that he has made such an unequivocal abandonment of the right to object. It appears to me that the submissions made on behalf of the respondents in relation to this particular issue have considerable force. The relevant behaviour seems to me to be this: the petitioner without objection took part in the performance review, accepted being placed on performance review and accepted that on the next occasion where there was an incident, if it should occur within the period of the performance review, the full disciplinary procedure may be set in motion. I believe that there is some force in the petitioner's submissions that these facts on their own may not be read as unequivocally giving up a right to make an objection. I accept senior counsel for the petitioner's position that they could be read in more than one way when looked at on their own. However one way they can be read is that he is waiving any right to object to the earlier incidents being taken into account in disciplinary procedure at a future date. That reading of his actings at that stage it appears to me is consistent with his later actings when the clause 6 disciplinary proceedings is set in motion. At no stage during that procedure, where it must have been clear to him that the earlier incidents were being taken into account, did he take any objection to the earlier incidents being taken into account. When his actings are looked at as a whole I am persuaded that he has unequivocally waived his right to object.

[262] As to the issue of reliance I have found considerable assistance in the discussion of the principle of waiver by Lord Hodge in McMullen Group Holdings v Harwood [2011] CSOH 132 where he makes the following observations at paragraph 72:

"At its most basic waiver involves the following: A, who knows or is presumed to know of his right, acts in a way which objectively justifies B in thinking that he will not insist on that right and B then acts in accordance with that understanding; if thereafter it would be unfair to B to allow A to enforce the right which he appeared to have abandoned, a plea of waiver will be upheld. Thus if A is silent or inactive where he would have been expected to intervene, and B acts or refrains from acting because of that silence in a way which makes it unfair to allow A later to assert his right, the circumstances may support a plea of bar or of waiver."

Applying the foregoing to the circumstances of the instant case: the petitioner has been silent where (if he knew of the right) he would have been expected to intervene and object to the earlier incidents being had regard to, and has allowed the disciplinary procedure within the Code to proceed to a very late stage without stating any objection to these incidents being had regard to. He has done so in circumstances where, having regard to the various affidavits if he had so objected that course would not have been followed. It seems to me that that is sufficient reliance. In the case of Donison and Thomas v University of Bradford (No 2) there appears to have been no more reliance than in the instant case. In particular on this aspect of the issue of waiver the circumstances in the Thomas v University of Bradford (No 2) are on all fours.

Exercise of discretion

[263] The final issue was this: if I was against the respondents in relation to all of the other arguments advanced on their behalf nevertheless it was argued I should refuse to exercise my discretion in favour of the petitioner.

[264] The practical result of finding in favour of the petitioner would be that the earlier incidents could not be considered. It would render it impossible for a case of incompetence to be made out against the petitioner on the basis of a pattern of conduct.

[265] The petitioner's position is that the fifth incident of itself is not of such a nature that it would justify the suspension or revocation of his license. Should that prove correct, and it cannot be ruled out, then, as a result of exercising my discretion in favour of the petitioner a pilot about whose competence serious concerns have been expressed in light of the earlier incidents and the fifth incident could very possibly be able to return to work as a pilot. When all five incidents have been considered a unanimous decision was taken to recommend revocation in circumstances where two members of the committee were the Chairman and Vice Chairman of the Forth Pilots Association. In these circumstances I believe the petitioner would be returning to his employment where there were safety concerns for the public which had not been dealt with.

[266] Against that background there are two competing interests: (a) the interests of the petitioner as a public officer in having questions of his competence dealt with in a manner which was in accordance with the Code. I recognise that that is a very important interest; and (b) there is the public interest as regards safety in navigation on the Forth.

[277] Weighing those interests I do not find it appropriate to grant the petitioner the remedies to which he would otherwise be entitled. It appears to me that the safety issue is of such importance that it outweighs the petitioner's rights, particularly in circumstances whereby acting in the way that the respondents have done, no actual prejudice has been done to the petitioner.

[278] With respect to the arguments regarding the fifth, sixth and seventh remedies, had I been required to consider these I would not have been persuaded by the petitioner's argument that no reasonable decision maker could arrive at the decision that the fifth incident on its own was sufficiently serious to justify a notice of intention to revoke. There is clearly a material dispute with respect to what on the evidence can be shown looking solely at the fifth incident. Against that background I believe before a decision could be reached on this issue I would require to hear evidence. This did not appear to me to be a matter which could be decided on the basis of submissions on the law. It appeared to me that the seeking of the fifth, sixth and seventh remedies was premature.

Disposal

[279] For the foregoing reasons I refuse the petition. I reserve the issue of expenses.