Appeal By Messrs J & E Shepherd Against Paul David Letley
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Justice Clerk,Lady Paton,Lord Bracadale,Lady Smith |
| Judgment Date | 17 November 2015 |
| Neutral Citation | [2015] CSIH 87 |
| Court | Court of Session |
| Date | 17 November 2015 |
| Published date | 03 December 2015 |
| Docket Number | XA3/15 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 87
XA3/15
Lord Justice Clerk
Lady Paton
Lord Menzies
Lady Smith
Lord Bracadale
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in the Appeal by
MESSRS J & E SHEPHERD
Pursuers and Respondents
against
PAUL DAVID LETLEY
Defender and Appellant
Act (Appellant): Howlin QC, Logan; Halliday Campbell WS
Alt (Respondents): No appearance
Amicus curiae: M Ross
17 November 2015
Introduction
[1] This is an appeal against an interlocutor of the Sheriff Principal of Tayside Central and Fife at Dundee dated 27 November 2014, by which he dismissed the appellant’s appeal as incompetent. The issue is the proper mode of review of a finding of breach of interdict. There is an apparent conflict between Forbes v Forbes 1993 SC 271 and Maciver v Maciver 1996 SLT 733. Forbes held that “proceedings … following upon … breach of interdict are not civil proceedings as envisaged by section 3 of the 1907 Act”. Maciver took the opposite view, viz.: “In our opinion [section 3(d)] is wide enough to include proceedings which are taken by initial writ for breach of interdict”.
Background
[2] The appellant had previously been a partner in the respondents, a firm of surveyors operating from Dundee. He had been expelled from the partnership on 1 June 2011. On 10 June 2011, the sheriff had granted interim interdict against the appellant. In a subsequent summary application, the appellant was found to be in breach of the interim interdict in respect of an incident occurring on 26 June 2011. By interlocutor dated 16 June 2014, he was fined £500.
[3] The appellant appealed to the sheriff principal who, by interlocutor dated 27 November 2014, dismissed the appeal as incompetent. The sheriff principal considered, correctly, that he was bound by Forbes. He also observed, under reference to M v S 2011 SLT 918 and G v B 2011 SLT 1253, that a sheriff’s decision in relation to both a finding of contempt and a subsequent sentence were reviewable only by petition to the nobile officium. There was, however, a question as to whether or not breach of interdict, as a particular species of contempt of court, should be treated differently.
[4] At the Procedural Hearing in the appeal on 28 April 2015, the tension between Forbes and Maciver was brought to the court’s attention. It was decided that a Full Bench would be convened. A one day Summar Roll hearing was assigned for 17 November 2015. By interlocutor dated 22 October 2015, the respondents were allowed to withdraw their answers and the appeal proceeded unopposed. An amicus curiae was appointed on 30 October 2015.
Submissions
Appellant
[5] Forbes had been incorrectly decided and should be overruled: Maciver should be preferred. The breach proceedings, which were initiated by a summary application, fell within section 3(d) of the 1907 Act. Such an action was subject to review by the sheriff principal (Macphail, Sheriff Court Practice (3rd ed), para 21.96; Rodenhurst v Chief Constable of Grampian Police 1992 SC 1). It would be irrational and contrary to the terms of the 1907 Act for appeals against decisions of the sheriff in breach of interdict proceedings to be treated differently from appeals in other summary applications. There were considerable advantages in such appeals being dealt with by the sheriff principal at an appropriate level of cost to the parties. There was no good reason to restrict the right of appeal contemplated by section 27 of the 1907 Act as the court had done in Forbes.
[6] Forbes had decided that actions for breach of interdict were not civil proceedings within the meaning of section 3. That was contrary to the earlier decision of Gribben v Gribben 1976 SLT 266, to which the court in Forbes had not been referred.
[7] M v S 2011 SLT 918 and G v B 2011 SLT 1253 formed a different class of case. They involved findings of contempt of court for failures to obtemper court orders, not breaches of interdict. They involved applications for suspension of orders of imprisonment, which was a remedy only available in the Court of Session.
Amicus Curiae
[8] The authorities focused on the characterisation of breach of interdict as quasi-criminal. The terms quasi-criminal and sui generis ran through the cases. They were the source of the difficulty. Breach of interdict was a subset of contempt of court (Gribben v Gribben (supra) at 269). Forbes referred to Cordiner, Petitioner 1973 JC 16 for the proposition that proceedings for contempt had always been regarded as sui generis. It was doubtful whether Cordiner bore the weight placed upon it by Forbes. Cordiner only supported Forbes if it were accepted that breach of interdict and other instances of contempt of court should be treated in the same way. There was at least one point of distinction. Breach of interdict proceedings were at the instance of a litigant with pleadings to support the claim; contempt (in the Cordiner situation) was a matter for the court itself. A clear and compelling line could not be found in the authorities to support the proposition that breach of interdict should be treated differently from other contempt cases.
[9] Forbes had referred to Christie Miller v Bain (1879) 6 R 1215, in which the characterisation of breach of interdict proceedings as quasi-criminal had been discussed. Forbes expressed the view that Parliament must have taken that decision into account when enacting the 1907 Act. However, sections 3 and 27 of the 1907 Act reproduced, in...
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Messrs J & E Shepherd Against Paul David Letley
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