Scottish Court of Session Decisions

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 (3^rd 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 essentially the same terms, sections 3 and 27 of the Sheriff Courts (Scotland) Act 1876.  It was more accurate to say that Parliament had not intended to change the existing system of appeals (see Report of the Departmental Committee on Sheriff Court Procedure (1904), as reproduced in Fyfe, The Sheriff Court Code (1907), at 143; Lewis, Sheriff Court Practice (2^nd and 8^th eds, at 79 and 223, respectively).  The introduction, after “action”, of the words “or cause” in section 3(d) of the 1907 Act had the effect of expanding the definition of “civil proceedings”.  That pointed to a broader, rather than a narrower, view of the scope of civil appeals.  The definition in section 3(d) was preceded by the verb “includes”.  The inclusion of quasi-criminal proceedings would not be repugnant to the construction of the Act.

[10]      Sections 47, 110 and 136(1) of the Courts Reform (Scotland) Act 2014 had now addressed the issue.

Decision
[11]      Prior to Forbes v Forbes 1993 SC 271 it was widely thought that an interlocutor in a breach of interdict action was subject to review in the same manner as an interlocutor in any other ordinary court process (Dobie: Sheriff Court Practice 510, citing Macleay v Macdonald 1928 SC 776, LJC (Alness) at 781, following Maclachlan v Bruce & Co 1912 SC 440 and Stark’s Trustees v Duncan 1906 8F 429).  As it was put in Lewis: Sheriff Court Practice (8^th ed) 223, the ordinary rules as to civil appeals applied, notwithstanding the quasi-criminal nature of the action.  After all, at that time breach proceedings proceeded upon an initial writ as they do now by summary application.

[12]      In Forbes (supra) an Extra Division held that such proceedings were not “civil proceedings” as envisaged by section 3 of the Sheriff Courts (Scotland) Act 1907 because they had always been regarded as sui generis.  It was said (Lord McCluskey, delivering the Opinion of the Court, at 273) that the dictum to that effect in Christie Miller v Bain (1879) 6 R 1215 must have been in the mind of Parliament when it enacted the 1907 Act and used the words “civil proceedings”.  Reference was also made to Cordiner, Petr 1973 JC 16, (LJG (Emslie) at 19), to the effect that appeals arising out of cases of contempt in the civil context could only be taken by way of an application to the Court of Session.  Cordiner, however, concerned a sentence for contempt in Court of Session divorce proceedings, which the petitioner was seeking to have reviewed in the High Court of Justiciary.  The Lord Justice General specifically stated (at 18) that the matter was susceptible to the regular form of appeal in that court.  He did not have specifically in mind the competency of an appeal to the sheriff principal, but the fact that he regarded an ordinary civil appeal as competent points to that also being a competent mode of review when the breach or sentence stemmed from the sheriff court.

[13]      In Maciver v Maciver 1996 SLT 733 the First Division doubted (at 735) the ratio in Forbes.  The fact that proceedings were described as quasi criminal did not prevent them from being civil proceedings in terms of the 1907 Act (see also Byrne v Ross 1992 SC 498).  This court agrees with the observations in Maciver.  Forbes was wrongly decided and is hereby overruled.  The 1907 Act did not materially change the pre-existing position set out in Sheriff Courts (Scotland) Act 1876.  Both before and after the 1907 Act there was ample authority for the proposition that a finding of contempt or a breach of interdict by a party to the cause was appealable in the normal way.  The position in relation to contempt by third parties may be different (B, Petnr 2015 SLT 269).  Fortunately the whole matter will shortly be governed, so far as sheriff court civil contempts and sentences are concerned, by sections 47, 110 and 136 of the Courts Reform (Scotland) Act 2014.

[14]      The appeal will be allowed.  The sheriff principal’s interlocutor of 27 November 2014 will be recalled.  The appeal was competent.  It will be remitted to the sheriff principal to proceed as accords.