Forbes v Forbes
| Jurisdiction | Scotland |
| Judgment Date | 04 February 1993 |
| Docket Number | No. 27 |
| Date | 04 February 1993 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Practice—Sheriff court practice—Interdict—Appeal to sheriff principal—Breach of interdict proceedings—Whether "civil proceedings"—Whether 60 days imprisonment for breach of interdict prohibiting disposal of matrimonial home excessive—Whether appeal to sheriff principal from judgment of sheriff competent—Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), secs. 3 and 271
Words and phrases—Statutory interpretation—"Civil proceedings"—Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), secs. 3 and 271
Section 3 of the Sheriff Courts (Scotland) Act 1907 enacts, inter alia, that: "“Final judgment” means an interlocutor which, by itself, or taken along with previous interlocutors, disposes of the subject-matter of the cause." Section 27 makes competent an appeal to the sheriff principal against all final judgments of the sheriff, subject to the provisions of the Act.
A wife brought an action for divorce from her husband in the sheriff court in which the husband was interdicted from disposing of the matrimonial property. The husband admitted breach of the interdict and the sheriff deferred sentence for a few weeks in order to afford the husband an opportunity to mitigate the damage caused by his breach. Eventually, that opportunity not being taken up by the husband, the sheriff imposed a penalty of 60 days imprisonment in respect of the breach. The husband appealed to the sheriff principal who dismissed the appeal as being incompetent. The husband appealed to the Court of Session and argued (a) that the sheriffs interlocutor had been a "final judgment" within the terms of sec. 27 of the Act so that the appeal to the sheriff principal had been competent; and (b) that, in respect of the merits, the sheriff ought to have deferred sentence and, in any event, had taken into account matters which he should not have taken into account and had given undue weight to certain matters.
Held (1) that proceedings taken by way of initial writ following upon breach of interdict were not civil proceedings as envisaged by sec. 3 of the Act but were sui generis: (2) that the court had to have regard both to the affront to the administration of justice and also the detriment to the interests of the other party which the contempt caused; and (3) that, as the husband had failed to take the opportunity offered by the sheriff to mitigate the damage caused by the breach, the sheriff had acted within his discretion in imposing the sentence he gave; and appeal refused.
Observed that as the position of a pursuer in this type of case was analogous to that of a prosecutor it was not competent to call upon counsel for the pursuer to make submissions regarding the sentence (apart from matters of competency).
Mrs Heather Nisbet or Forbes brought an action of divorce in the sheriffdorn of Tayside, Central and Fife against her husband, Robert Fleming Forbes, in which she sought and obtained interdict prohibiting him from disposing of certain matrimonial property. The pursuer thereafter brought an action for breach of interdict. On 12th July 1991 the defender admitted the breach in respect of certain matters and sentence was deferred until 28th August 1991, the sheriff giving the defender an opportunity to mitigate the damages caused by the breach. The defender failed to take that opportunity and, on 28th August 1991, he was sentenced to 60 days' imprisonment. The defender appealed to the sheriff principal who dismissed the appeal as being incompetent.
The defender thereafter appealed to the Inner House of the Court of Session.
The cause called before an Extra Division, comprising Lord McCluskey, Lord Clyde and Lord...
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