Barry Nelson V. David Macbeath
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Sir Stephen S.T. Young |
| Court | Sheriff Court |
| Date | 18 January 2007 |
| Docket Number | A129/04 |
| Published date | 18 January 2007 |
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT WICK
A129/04
| JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC in the cause BARRY NELSON Pursuer against DAVID MacBEATH Defender and Appellant |
Act: Absent
Alt: Mr Stephen Lennon, solicitor, Ewan Harris & Co, Dornoch
Dr Kirsty Hood, advocate, for Highland Law Practice, Wick
Wick: 18th January 2007
The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 6 September 2006; finds the defender and appellant liable to the Highland Law Practice in the expenses of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; certifies the appeal as suitable for the employment by the Highland Law Practice of junior counsel; quoad ultra remits the cause to the sheriff to proceed as accords.
Note
[1] This is an appeal by the defender against the interlocutor of Sheriff Sutherland dated 6 September 2006 in terms of which he refused the defender's motion to have the pursuer's former solicitors, Highland Law Practice ("HLP"), found liable to him for the expenses of the action from 3 September 2004 to 4 March 2005.
[2] The sheriff explained his decision in a note which he appended to his interlocutor of 6 September 2006. In paragraph [1] of this note he recorded that the defender's motion called before him on 6 January, 15 March and 18 May 2006, and that the motion was based on the defender's written motion, no. 7/6 of process, and an oral motion made at the bar on 24 November 2005. In paragraphs [2] to [17] he proceeded to summarise the opening submissions made by the defender's solicitor in support of the motion and in paragraphs [18] to [30] he summarised the submissions in response of the solicitor for HLP. At paragraphs [31] to [37] he summarised the final submissions of the defender's solicitor, and at paragraphs [38] to [49] he explained his reasons for refusing the defender's motion. His note speaks for itself, and it is unnecessary that I should set it out in full here.
[3] It is apparent from the interlocutor sheets that the case called in court on numerous occasions between 3 September 2004 and 18 May 2006 and that with one exception (on 15 July 2005) Sheriff Sutherland presided at all these hearings. So he had the advantage, denied to an appeal court, of having had a ready familiarity with the circumstances of the case from the outset. He was thus especially well placed to consider the merits of the defender's motion which is the subject of this appeal, and indeed this appeal affords a good illustration of the reason why appeals solely on questions of expenses are severely discouraged - see Macphail's Sheriff Court Practice (3rd Edn) at paragraph 18.117. At the conclusion of the appeal hearing I was tempted to dismiss the appeal there and then with a brief statement of my reasons and the comment that I thought that it was without merit. But in deference to the care with which the defender's solicitor had evidently prepared his lengthy submissions I decided that I had better prepare a written judgement.
[4] Given his familiarity with the circumstances of the case, it is perhaps understandable that the sheriff did not feel it necessary to rehearse these in his note before summarising the submissions that were made to him. If I may respectfully say so, I think that it would have been helpful to have found in his note at least a brief opening narrative of the circumstances of the case, and also an explanation of the reasons behind his decisions on the matter of interim interdict which was the subject of the first three hearings on 3, 10 and 24 September 2004, and to which I shall refer in more detail shortly.
[5] The initial writ was lodged in court along with the pursuer's first inventory of productions on 2 September 2004. In terms of crave 1 the pursuer sought an order under section 8 of the Protection from Harassment Act 1997 prohibiting the defender from harassing him by approaching him, assaulting him, threatening him, entering his home, damaging his property, interfering with his livestock, or otherwise putting him into a state of alarm or distress. In terms of crave 2 he sought interdict and interdict ad interim to prevent the defender from molesting him by approaching him, abusing him verbally, assaulting him, threatening him, entering his home, damaging his property, interfering with his livestock, or otherwise putting him into a state of alarm or distress.
[6] In article 2 of the condescendence the pursuer averred that he was the brother of the tenant of the croft at Knockally, Dunbeath, Caithness and that the defender was the son of the landlord of this croft, Mr John MacBeath. The pursuer averred that he had resided in the croft house for a period in excess of three years and that his sister, Mrs Ivy Pemberton, had agreed with the landlord that she would become the tenant of the croft and would pay £220 per month in order to purchase the croft at a total price of £25,000 from the landlord. It was averred that the landlord and Mrs Pemberton had signed the appropriate papers to put this arrangement into effect in or around 2002 and that Mrs Pemberton had then given the pursuer permission to stay on the croft in the croft house as she only wished to work the land. It was then said that the pursuer had moved into the croft house and had resided there ever since.
[7] In article 3 it was averred that the pursuer remained in the croft house without remark or incident until in or around March 2004 when the defender called to see him while he was visiting his sister and asked him when he would be moving out of the croft house at Knockally. It was said that the pursuer told the defender that he would not be moving and that he and his sister had then confirmed that the agreement had been made with the defender's father. It was said that the defender then indicated that he had a power of attorney in respect of his father and that the price of the croft had increased to £60,000. It was averred that the pursuer indicated that they would need to see a valuation and evidence of the power of attorney and that these had not been produced by the defender. Finally it was averred that the defender then told the pursuer that if he did not get out of the croft, he would physically get him out.
[8] In articles 4 to 8 of the condescendence the pursuer averred that since in or around the end of July 2004 the defender had mounted a campaign of harassment against him, and details were given of a variety of incidents in which, for example, the defender was said to have broken into the croft house and changed the locks on three separate occasions, packed the pursuer's belongings into cardboard boxes and damaged some of his pictures. On another occasion it was said that the pursuer had received a visit from police officers after the defender had reported to the police that there were two doors in the house which had been stolen and which had in fact been given to the pursuer by a local construction company. In addition the defender had gone into the field surrounding the croft house and had released the pursuer's livestock, and later it was said that the pursuer had received a bill from the electricity company confirming that he had moved from the croft house and that upon inquiry it had become apparent that it had been the defender who had told the electricity company of the pursuer's move.
[9] In article 9 the pursuer averred that the defender would continue to harass him and to enter into his home and that he was concerned that every time he had to leave his home he invariably came back to find that the defender had broken in and changed the locks. He averred that the defender had pursued a course of conduct in the form of harassment against him and that he had a reasonable belief that the defender would continue in that course of conduct and that he was therefore entitled to the protection of an interim interdict and thereafter a non-harassment order.
[10] Finally the pursuer tabled two pleas-in-law in which, in short, he maintained that he was entitled to the protection of an interim interdict and a non-harassment order, the defender "having engaged in a course of conduct amounting to harassment of the pursuer, as condescended upon and having shown an intention to persist therein".
[11] The pursuer's inventory of productions included four items. The first of these was a series of electricity bills addressed to the pursuer at an address other than the croft house at Knockally. The bills relate to the supply of electricity at the croft house and one of them recorded that it was a final bill to 17 July 2004. The second item was a copy of a typed letter dated 3 October 2001 which bears to be signed by John MacBeath and is addressed to Mrs Ivy Preston. (It appears from a letter in the pursuer's second inventory of productions that Mrs Preston and Mrs Pemberton are one and the same person, Preston having been her married name and Pemberton her maiden name). The letter reads as follows:
Dear Ivy
This agreement is made today between myself John MacBeath [landlord] and Ivy A. Preston [tenant] and Ivy A. Preston has life tenency to my land and buildings known as MacBeath Croft Knockally Dunbeath. Caithness. Should my present tenent Mr Barry Nelson decide to vacate the cottage known as MacBeath Cottage at Knockally Dunbeath KW6 6EU the tenancy goes to Mrs I. A. Preston likewise the land and buildings if vacated by Mrs Preston goes to Mr Barry Nelson
Yours sincerely
(Sgd) John MacBeath
[12] The third item in the pursuer's first inventory of productions was a copy of a hand-written letter dated 11 January 2002 which is addressed to Mrs Preston and appears to have been written and signed by Mr John MacBeath. It reads:
Dear Mrs Preston
This is to confirm that you & Barry are partners of the said croft at...
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