Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Behrent v. MacKillop [2003] ScotCS 218 (05 August 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/218.html
Cite as: [2003] ScotCS 218

[New search] [Help]

Behrent v. MacKillop [2003] ScotCS 218 (05 August 2003)

OUTER HOUSE, COURT OF SESSION

OPINION OF T G COUTTS Q.C.

Sitting as a Temporary Judge

in the cause

CURTIS BEHRENT

Pursuer;

against

DONALD MACKILLOP

Defender:

________________

Pursuer: MacNeill; Aitken Nairn, W.S.

Defenders: Russell Jones & Walker

5 August 2003

[1] In this action of reduction of a decree of the Sheriff at Dingwall the pursuer's averments are directed to alleged procedural defects which, he says, preceded the granting of decree in absence, subsequently extracted.

[2] From a perusal of the pleadings it did not appear that any factual matters in dispute require the evidence of the sheriff. However, the pursuer lodged a specification of documents in wide terms, basically seeking the whole of the sheriff's notes in relation to the proceedings in the case including an account of submissions made to him, whether ordinarily in writing and "the reason or reasons for granting decree in absence".

[3] The motion originally appeared before Lord Bonomy who ordered further intimation on the Lord Advocate and the Advocate General but indicated that even if that were done if the motion were re-enrolled, it required to be starred. The motion was heard by me on 9 July 2003.

[4] I was informed that the sheriff had adopted the attitude which, with respect, appears to me to be wholly correct, that he would produce such notes as he had, if ordered to do so by the court.

[5] It was submitted by counsel that although a Court of Session judge was not a competent compellable witness in subsequent proceedings, a sheriff was. He cited Walkers, Evidence who state that the judges in inferior courts are competent witnesses to the proceedings before them and they are frequently called in trial for perjury to testify as to the evidence given in that cause. An illustration of that is provided in Davidson v McFadyen 1942 JC 95. Counsel was unable to point me to any decision whereby a sheriff might be a competent or compellable witness in civil proceedings, and in particular, civil proceedings in which, by reference to notes or otherwise, he would be asked to specify the reasons for his decision. Normally such matters would be dealt with by way of a note or opinion and it would not be, in my view, proper nor in the interest of justice for a disaffected party to be able to call for the sheriff's note books in order to ascertain what, if any, reasons for his decisions he had noted at the time of a hearing, if any such took place.

[6] Sheriffs are "Queen's Judges" and are as such not susceptible to litigation in relation to matters which appear before them or actions taken by them in court. If that be the case, then submissions of parties and reasons for decisions, even in cases which involve a breach of the criminal law or a perversion of the course of justice, as in perjury may not be investigated in that manner. I refer to Russell v Dickson 1998 SLT 926. It is clear to me that there is no duty on any judge to make any written note of reasons for decisions, or at least such full notes on to provide a basis for submissions on fact by a party in a different litigation. Nor would he be obliged to note written submissions - particularly not to note "all submissions made".

[7] For all these reasons, I refuse the motion for commission and diligence in the terms of the specification as presented, which, in any event would be rejected in that a sheriff's notebook over a 9 month period may not be perused by a party to obtain sight of entries herein. If all written notes were to be sought as were there would at least have required to be provision for excerpting by a commissioner.

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010