Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Clarke Lady Dorrian Lord Bannatyne	[2012] CSIH 45 XA48/11 OPINION OF THE COURT delivered by LORD BANNATYNE in the cause JAMES DUFF Pursuer and Appellant; against PATRICK SHEARER Defender and Respondent;

Act: Party;

Alt: Kelly; Dumfries & Galloway Council

18 May 2012

Introduction

[1] This appeal arises out of an action of lawburrows raised by the pursuer and appellant in the Sheriff Court at Dumfries. The defender and respondent is the Chief Constable of Dumfries and Galloway police.

Procedural history before the Sheriff

[2] It is perhaps convenient at this point to set out the procedural history in the action of lawburrows as the argument before us turned on the competency of certain of the actings of the Sheriff.

[3] When the application was presented to the Sheriff on 10 February 2011 he granted a warrant in the following terms:

"To cite the defender by serving upon him a copy of the writ and warrant on a period of notice of 21 days, appoints parties or their agents to a proof in respect of the cause on 31 March 2011at 10.00am within the Sheriff Court House, Dumfries, Sheriff Clerk's Office, Buccleuch Street, Dumfries and grants warrant to both parties to cite witnesses."

[4] Thereafter a motion was enrolled on behalf of the respondent which sought the following:

1. to discharge the diet of proof.

2. to ordain the pursuer to find caution

3. failing the granting of parts one and two of the motion to sist the cause to await the outcome of an action seeking to have the pursuer declared a vexatious litigant.

[5] The Sheriff having heard oral argument on behalf of both parties in respect of this motion pronounced an interlocutor on 17 March in the following terms:

"The Sheriff, having heard parties procurators on the defender's motion to ordain the pursuers to find caution for expenses, continues part one thereof until the motion roll of 24 March 2011 at 10.00 am; refuses parts two and three of said motion; refuses the defender's motion, made at the bar, for leave to appeal."

[6] At the hearing on 24 March 2011, the principal argument advanced by counsel for the respondent was that the application was incompetent and fundamentally irrelevant and that accordingly a hearing at which these issues would be discussed should be fixed and the proof discharged. The respondent in reply argued that the proof should be retained and evidence heard. Having heard parties the Sheriff pronounced the following interlocutor:

"The Sheriff, having heard parties procurators, discharges the diet of proof assigned for 31 March 2011 and in lieu thereof assigns 31 March 2011 at 10.00am within the Sheriff Court House, Buccleuch Street, Dumfries as a diet of debate; grants leave to the defender to make an oral motion to sist the cause on the principle of lis alibi pendens and continues consideration thereof until the debate diet on 31 March 2011; refuses defender's oral motion to review part two of the defender's motion dealt with by the court on 17 March 2011."

[7] The Sheriff on 31 March 2011 heard counsel for the respondent in support of his position that the application was incompetent and fundamentally irrelevant. He heard the appellant in reply. The Sheriff made avizandum and having resumed consideration thereof he, by interlocutor dated 4 April 2011, inter alia; sustained the defender's plea to the relevancy of the pursuer's application for lawburrows and dismissed the application for lawburrows as irrelevant.

The relevant law

[8] Procedure in actions of lawburrows is governed by the Civil Imprisonment (Scotland) Act 1882 Section 6 ("The 1882 Act"). The provisions so far as relevant to the present appeal are as follows:

"(1) It shall not be competent to issue letters of lawburrows under the signet in the Court of Session or Court of Justiciary:

(2) Upon an application for lawburrows being presented, the [sheriff principal or sheriff ] or justice of the peace shall immediately, and without taking the oath of the applicant, order the petition to be served upon the person complained against, and shall at the same time grant warrant to both parties to cite witnesses:

(3) At the diet of proof appointed, or at any adjourned diet, the application shall be disposed of summarily under the provisions of the Summary Jurisdiction Acts and without any written pleadings or record of the evidence being kept, and expenses may be awarded against either party if and as it shall seem just:

(4) In every application for lawburrows the parties shall be competent witnesses, and the [sheriff principal or sheriff] or justice of the peace, may grant the prayer of the petition upon the sworn testimony of one credible witness, although such witness may be a party:"

At a procedural hearing on 23 November 2011 the court appointed the cause to the Summar Roll for a preliminary hearing on the appellant's grounds of appeal one and two (as amended). These grounds were directed to the competency of the procedure adopted by the Sheriff.

The appellant's submission

[9] The appellant's submission was a sharp one and was this: there could be no debate on a preliminary plea in an action of lawburrows. It was his position that the Sheriff had acted in conformity with the 1882 Act Section 6 and had fixed a proof and granted warrant to both parties to cite witnesses as was contemplated by section 6(2) of the 1882 Act. However, he contended that the Sheriff had acting incompetently when, in terms of his interlocutor of 24 March 2011, he had discharged the diet of proof and fixed a diet of debate. Moreover, he submitted that on a proper construction of the 1882 Act the Sheriff had by his interlocutor of 4 April 2011 acted incompetently in dismissing the application on the basis that it was irrelevant without having heard evidence.

[10] He, under reference to section 6 of the 1882 Act, drew our attention to the following: (a) there was no reference to the holding of a debate; (b) that in terms of section 6 (1) and (2) when read together a proof was to be fixed by the Sheriff on the application being presented and (c) in terms of Section 6(3) the application was to be disposed of summarily and without written pleadings. It was his position that when the provisions were taken together the 1882 Act on a proper construction left no room for the holding of a debate. It was his contention that the Act envisaged a procedure in which the application would proceed expeditiously to a proof and be decided following the hearing of evidence.

Reply on behalf of the respondent

[11] Counsel for the respondent's submission was that it was competent for the Sheriff to hear submissions as to the competency and relevancy of the application and if satisfied that the application was either incompetent or irrelevant to dismiss the application without hearing evidence.

[12] In development of that submission he made three succinct points:

His primary argument was based on the observations of Lord MacFadyen, giving the Judgment of the Court in Duff v Strang [2008] JC 251 at page 260, paragraph 24. It was his position that the court in Duff had correctly analysed the provisions of section 6 of the 1882 Act. He specifically contended that the court had correctly observed that the hearing of evidence in an application which was fundamentally irrelevant or incompetent would be contrary to the express aim of the provisions, namely expeditious resolution of such applications. He submitted that this court should follow the approach taken by the court in Duff and hold the Sheriff's actings to be competent.

[13] Secondly counsel referred to Rule 2.31 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999 (SI 1999/929 (S65)) ("the Act of Sederunt") which permitted the Sheriff to "make such order as he thinks fit for the progress of a summary application" so long as not inconsistent with section 50 of the Sheriff Courts (Scotland) Act 1907. It was his position that an action for lawburrows was a summary application and applying rule 2.31 the Sheriff had acted in a competent manner in making the order he did.

[14] Thirdly, in response to certain comments from the bench counsel for the respondent sought to advance an argument that if regard were had to the mischief which the provisions in section 6 of the 1882 Act were designed to deal as identified by Lord MacFadyen in Duff v Strang at paragraph 4, then the provisions on a proper construction did not require a proof to take place and evidence to be heard before an application for lawburrows could be dismissed.

[15] Lastly counsel for the respondent properly drew our attention to certain observations of Sheriff MacPhail in Morrow v Neil 1975 SLT (Sh Ct) 65, which appeared to run counter to the submissions which he was advancing. In that case Sheriff MacPhail observed at pages 70 and 71:

"In my opinion, there is no room in the statutory procedure for defences, preliminary pleas, debates and continuations. The objective of the procedure is to keep the pursuer harmless from illegal violence of which he alleges he is in dread at the time of the application. The procedure does not allow for any provisional remedy analogous to interim interdict until the question has been decided. Instead, it envisages a proof at an early date, which should be fixed whenever the application is presented, at the same time as warrant is granted for service on the defender and citation of witnesses."

Counsel submitted that the observation of Sheriff MacPhail that there could be no debate was, on a proper construction of the provisions, incorrect.

Discussion

[16] In our opinion the Sheriff was entitled to take the procedural course which he followed.

[17] In arriving at a proper construction of the provisions of section 6 of the 1882 Act, given the opposing constructions advanced before us, we believe that it is necessary and appropriate to have resort to the following well recognised canon of construction, namely: we seek to identify the mischief which the provisions of Section 6 of the 1882 Act were designed to cure.

[18] We believe that the mischief is identified by the court in the passage in Duff v Strang to which we were referred by counsel for the respondent (see: page 254, paragraph 4) where the court observes:

"(4) By the mid‑nineteenth century the remedy of lawburrows was the subject of critical comment. Lord Cockburn observed: 'the bond of lawburrows is an absurd form in reference to our modern customs' AB v CD, page 60; see also Gadois v Baird per Lord Ardmillan, page 683). The principal defect in the procedure at that time was that the party against whom the complaint was made was not cited and had no other intimation of the application, which could be granted upon the complainer giving his oath that he dreaded harm at the hand of that party. That defect was addressed in the Civil Imprisonment (Scotland) Act 1882 ('The 1882 Act')."

[19] This defect is also indentified by Sheriff MacPhail in Morrow v Neil where he observes at p68:

"But the practice sanctioned by Sellars gave rise to serious abuse of the process, which Section 6 of the Act of 1882 was designed to remedy. As the pursuers' counsel in Sellars had vainly warned the court: 'The manner in which lawburrows are obtained, without citation of the accused, or looking into the causes of the application, giving room to the committing of much injustice. From the nature of the proceeding there is no check on a groundless application, nor any means of avoiding the oppressive consequence of imprisonment till caution is found.'"

(Our emphasis)

[20] It was in order to deal with these deficiencies in the procedure for the obtaining of lawburrows that the 1882 Act at section 6 introduced a new procedure. Sub‑section (1) rendered it incompetent to issue letters of lawburrows under the signet in the Court of Session or in the High Court of Justiciary. Sub‑section (2) provided that upon presentation of the application, the Sheriff "shall immediately and without taking the oath of the applicant" order service on the persons complained against, and "shall at the same time grant warrant to both parties to cite witnesses". Sub‑section (3) provided as follows: "At the diet of proof appointed, or at any adjourned diet, the application shall be disposed of summarily under the provisions of the Summary Jurisdiction Acts, and without any written pleadings or record of the evidence being kept". Sub‑section (4) provided that the parties were to be competent witnesses, and the application might be granted on the sworn testimony of one credible witness, who might be a party.

[21] Accordingly, read in short, what is provided by the provisions is a procedure whereby there is service on the person complained against and before the application can be granted, the sworn evidence of one witness must be taken and that person may be a party to the action. Thus the mischief which the provisions were designed to cure is cured.

[22] To the argument that section 6 of the Act renders it incompetent for the Sheriff to dismiss an application for lawburrows as being irrelevant or incompetent without hearing evidence we would observe that that is not the purpose of the provisions and is not the purpose of the new procedure set forth in the provisions. It is not a mischief at which the provisions are aimed.

[23] We believe that to construe the provisions in the manner contended for by the appellant would result in not controlling and suppressing the mischief and advancing the remedy, as it would allow groundless applications to proceed to a full hearing on the evidence instead of being dealt with expeditiously. It appears to us that the construction contended for by the appellant would run counter to the clear intention of Parliament.

[24] Having regard to the purposes of the relevant provisions as we have described them, in our opinion, for the foregoing reasons, the application of the mischief rule strongly supports the construction contended for by the respondent's counsel and supports rejection of the appellant's construction as plainly wrong.

[25] Moreover, we believe that significant support for the respondent's contended for construction can be found in the obiter observations of the court at paragraph 24 in Duff v Strang to which we were directed by counsel for the respondent. The court commences its observations as follows:

"It is no doubt right that section 6 of the 1882 Act was designed to ensure inter alia that the application proceeds expeditiously."

The court goes on in the said paragraph further to observe:

"If it be the case that the application is incompetent, or that it is fundamentally irrelevant, so that it would be bound to fail even if the pursuer proved every averment he made, it would be contrary to the aim of expeditious disposal of the application to require the Sheriff to hear evidence, possibly prolonged evidence, which could not alter the result."

[26] We would be slow to read the statutory provisions as having that result and having regard to the analysis of them which we have endeavoured to give we are satisfied that that is not their effect.

[27] As regards the observations of Sheriff MacPhail in Morrow v Neal to which we were directed by counsel for the respondent, it does appear that those observations have on occasions been quoted as supporting the view that on a proper construction of the provisions in section 6 an application cannot be dismissed without the hearing of evidence.

[28] We are not, however, persuaded that this is a correct understanding of these observations, when the context in which they were made is properly understood.

[29] The context in which the observations were made was this: the sheriff had not immediately on the application being put before him, granted warrant to cite witnesses, no diet of proof had been fixed by him, defences were lodged and a diet of debate was immediately fixed

[30] The provisions of Section 6 do provide for a warrant to cite witnesses to be granted and the appointment of a diet of proof by the Sheriff on the application being made and does not provide for the lodging of defences. Thus the Sheriff in the case of Morrow v Neil had not acted in accordance with those requirements.

[31] Against that background Sheriff MacPhail made the observations which we have earlier set out in full. In the course of these observations he expressed the view that in terms of the statutory procedure there was no room for a debate. However, when regard is had to the context of this particular observation a proper understanding of what he is saying is this: (a) when an application comes before the Sheriff he must grant a warrant to cite witnesses and not fix a debate as was done by the Sheriff in Morrow v Neil and (b) where there are no developed pleadings, no defences and therefore no preliminary pleas a debate as envisaged in terms of the Sheriff Court Ordinary Cause Rules of procedure cannot take place. But that does not preclude the Sheriff, having granted warrant to cite witnesses and prior to hearing evidence hearing argument that the application is either incompetent or fundamentally irrelevant.

[32] In terms of Section 6(3) of the 1882 Act the application is to be disposed of summarily under the provisions of the Summary Jurisdiction Acts. Accordingly in terms of Section 50 of the Sheriff Courts (Scotland) Act 1907 ("the 1907 Act") it is to be treated as a summary application. Thus Rule 2.31 of the Act of Sederunt is applicable to an application for lawburrows as counsel for the respondent contended. This rule gives the sheriff a wide ranging power to "make such orders as he thinks fit for the progress of a summary application" so long as not inconsistent with Section 50 of the 1907 Act. As we have said nothing in Section 6 of the 1882 Act precludes the course followed by the sheriff and the provisions of Rule 2.31 give him the power to appoint a hearing on the issues of competency and relevancy.

[33] Thereafter he was entitled to dismiss the application on ground of relevancy without having heard evidence.

Decision

[34] For the reasons set out above we refuse the appeal in respect of grounds one and two as amended. We reserve all questions of expenses.