Orkney Islands Council V. Michelle Whitehead+michael Vendy
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Sir Stephen S.T. Young |
| Court | Sheriff Court |
| Date | 07 October 2005 |
| Docket Number | SD4/04 |
| Published date | 07 October 2005 |
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT KIRKWALL
SD4/04
| JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC | ||
| in the cause | ||
| ORKNEY ISLANDS COUNCIL | ||
| Pursuers and Appellants | ||
| against | ||
| MICHELLE WHITEHEAD and MICHAEL VENDY | ||
| Defenders and Respondents |
Act: Mr David Bartos, advocate, instructed by Lindsays WS, Edinburgh
Alt: Mr W G Sutherland, solicitor, Drever & Heddle, Kirkwall
Kirkwall: 7th October 2005
The sheriff principal, having resumed consideration of the cause, allows the appeal in part and recalls (i) the decision pronounced by the sheriff at the end of the proof on 14 December 2004, and (ii) the final decree granted by him on 22 February 2005; finds the pursuers and appellants liable to the defenders and respondents in the expenses of (i) the preparation for and conduct of the proof on 14 December 2004, and (ii) the whole procedure in the cause thereafter to the date hereof (including in particular the expenses of the appeal and of the procedure associated with the assessment by the sheriff clerk on 3 February 2005 of the account of expenses incurred by the defenders and respondents to their solicitor); quoad ultra remits the cause to the sheriff to proceed as accords under reference to the ensuing note.
Note
[1]It is clear from the stated case that at the conclusion of the evidence on 14 December 2004 parties' submissions (and in particular those of the defenders' solicitor) were presented upon the basis of the concession made by the pursuers' solicitor which the sheriff recorded at page 8 of the stated case. The sheriff thereafter proceeded to reach his decision in the case and, perhaps more importantly for present purposes, to draft the stated case itself and in particular his findings in fact on the basis of this concession.
[2]Opening the appeal, counsel for the pursuers moved me to allow the concession to be withdrawn and a new question of law to be added to the stated case, namely: "3. In the absence of such a concession did I or would I err in law in holding that the first named defender had been accepted by the pursuers as tenant of the premises?" Having heard the solicitor for the defenders in reply, I refused this motion. In short, it appeared to me that, the sheriff having reached his decision and drafted the stated case on the basis of the concession, and there being no record of the evidence (this being a summary cause), it would be wrong to allow the appeal to be argued upon an entirely different basis from that upon which the case had proceeded before the sheriff and upon which he had drafted...
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