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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lord Johnston

Lord Wheatley

[2008] HCJAC4

Appeal No: XJ845/07

OPINION OF THE COURT

delivered by LORD MACFADYEN

STATED CASE

JAMES DUFF

Pursuer and Appellant;

against

DAVID J. R. STRANG

Defender and Respondent.

Act: Party

Alt: Mrs Wolffe; Legal Services, Dumfries and Galloway Council.

23 January 2008

Introduction

[1] This stated case arises out of an action of lawburrows raised by the pursuer and appellant, James Duff, in the Sheriff Court at Dumfries. The defender and respondent is David Strang, who was until recently Chief Constable of Dumfries and Galloway Police.

[2] On the date which had been set down for proof in the action, the sheriff entertained and upheld submissions that the action was incompetent and irrelevant. The appellant appealed to this court by stated case. When the case called on 30 August 2007, the court appointed it to a full hearing, and directed that at that hearing the court should be addressed on (1) the competency of the mode of appeal, and (2) the merits of the decision in the lower court. We have now heard submissions on these matters.

The remedy of lawburrows

[3] The remedy of lawburrows was introduced by the Lawburrows Act 1429 (c. 20), which provided as follows:

"It is statute ande ordanit that gif ony of the kingis lieges haf ony doute of his life outher be dede or manance or violent presumpcioun ande he ask souerte of thaim that he doutis the schiref sal tak souerte of the party that the complante is maid apoun sa that the party playntife mak prufe of the dede or of manance or of the violent presumpcioun maid or done til hym."

A modernised version of that provision would be to the following effect:

"It is enacted and ordained that if any of the king's lieges has any fear for his life, either as a result of deed or menace or violent presumption, and he seeks surety of them that he fears, the sheriff shall take surety of the party that the complaint is made against, provided the claimant party makes proof of the deed or menace or violent presumption made or done to him"

(cf the slightly less free "translation" in Morrow v Neil 1975 SLT (Sh Ct) 65 at 66, col. 1). The protection afforded by the remedy was extended by the Lawburrows Act 1591 (c. 22) to the complainer's "wyffis bairnis tenentis and seruandis ... in thair bodies landis takkis possessionis guides and geir" (wives, children, tenants and servants ... in their bodies, lands, leases, possessions, goods and gear).

[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"

(A v B (1853) 26 Sc. Jur. 58 at 60; see also Gadois v Baird (1856) 28 Sc. Jur. 682, per Lord Ardmillan at 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").

[5] Section 6 of the 1882 Act introduced a new procedure for the "process of law burrows". Subsection (1) rendered it incompetent to issue letters of lawburrows under the signet in the Court of Session or the High Court of Justiciary. Subsection (2) provided that upon presentation of the application, the sheriff (or justice of the peace) "shall immediately, without taking the oath of the applicant" order service on the person complained against, and "shall at the same time grant warrant to both parties to cite witnesses". Subsection (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 ..."

That subsection also made provision for the award of expenses. Subsection (4) provided that the parties were to be competent witnesses, and that the application might be granted on the sworn testimony of one credible witness, who might be a party. Subsection (5) left the amount of caution to the sheriff's or justice's discretion. Subsection (6) provided for imprisonment for up to six months (14 days in the case of an application to a justice) on failure to find caution. We need not summarise subsections (7) and (8). The section ended with the following proviso:

"... except in so far as expressly altered by this section, nothing in this Act shall affect the existing law and practice in regard to the process of law burrows".

The pursuer's pleadings

[6] In his initial writ the pursuer craves the court:

(1) "To ordain the Defender to find caution of lawburrows or to grant a personal bond ... that the Pursuer be harmless and skaithless in his body and property, and in no way troubled therein by the Defender either directly by himself or indirectly by others, and that under penalty of £10,000 or such other sum as the court considers appropriate";

(2) "In the event the Defender fails to find caution or grant a personal bond within such period as the court allows, to grant warrant for his imprisonment for a period not exceeding six months or until he finds caution or grants a personal bond as ordained by the court".

There are also craves for warrant to cite the defender, for warrant to cite witnesses, and for expenses.

[7] In article 1 of the condescendence the pursuer avers that he was in business until 1976, when he was "illegally made bankrupt". With reference to the respondent, he avers that he has been Chief Constable of Dumfries and Galloway Police since 2001. In article 2 he avers that he applied to the defender in January 2005 in terms of the Freedom of Information Act [2005] for copies of reports concerning the pursuer's complaints dating back to 1979. He avers that the defender "incited his officers to blank out the names of the officers on the reports before handing them over." He adds, however, that the defender was ordered by the Commissioner to name the officers, and did so. In article 3 the appellant avers that he discovered that "all of the said police reports dating from 1979 had been fabricated". He avers that when he raised the matter with the defender he declined to investigate the complaint; he "incited his officers to further fabricate reports in order to mislead the procurator fiscal and crown office". In article 4, the pursuer avers that the defender is in breach of his duty under section 17 of the Police (Scotland) Act 1967; that his officers have "committed the crime of perverting the course of justice, aiding and abetting others to make false statement in order to defraud the pursuer". In article 5 the pursuer avers "the defender's officers have for years been involved in defrauding the pursuer of his lands, houses and money by conspiring with Kenneth A. Ross, formerly solicitor and now sitting [as a sheriff] at Dumfries. ... The defender refuses to accept that his officers have committed any crime and still incites them to fabricate evidence so that the pursuer can't get justice. That over the years the pursuer has had his car stolen by a police informer and the police covered up, the pursuer believes that the police were behind the theft. The pursuer fears that his present car may be stolen with no recourse to the police." In article 6 the pursuer believes and avers "that the defender will continue his vendetta against him to stop him obtaining justice, that the defender has ignored judges [sic] directions with regard to said complaints." He avers that he "has been living in fear for years because of the defender's officers". He claims that "in these circumstances he is entitled to seek surety of the defender and the protection of the court for himself and his family".

The procedure before the sheriff

[8] When the application was presented to the sheriff, he ordered service on the defender and granted warrant to both parties to cite witnesses, as provided for in section 6(2) of the 1882 Act. A second order for service was required because the initial attempt at service was unsuccessful. A diet of proof was appointed to take place on 2 March 2007, as contemplated in section 6(3). On 16 February 2007 the defender enrolled a motion seeking to have the diet on 2 March 2007 assigned as a diet to hear submissions on the relevancy and competency of the application. On 2 March the case called before the sheriff. He heard counsel for the defender in support of the propositions that the application was incompetent and irrelevant. He heard the pursuer in reply. The pursuer sought to give and lead evidence, but the sheriff did not allow him to do so. In brief, the points made by counsel for the defender were (1) that the provisions of the 1882 Act did not preclude the hearing of submissions on competency and relevancy; (2) that the remedy of lawburrows did not accommodate vicarious liability; and (3) that in any event the pursuer did not make any averment of apprehension of violence against his person or property. The sheriff accepted those submissions and dismissed the action.

[9] On 15 March 2007 the pursuer applied for a stated case to this court. The sheriff draws attention to the fact that the application, if competent, was out of time (section 176(1)(a) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act")). A stated case was, however, adjusted. The questions posed for the opinion of this court are:

(1)	Was I entitled to dismiss the action in the circumstances set out in the Stated Case?
(2)	Was I entitled to allow the Respondent's Motion, No 6 of Process, to be heard on the day of the hearing fixed to hear evidence in support of the Appellant's action of Lawburrows?
(3)	Was I entitled to apply criminal procedure at this stage of the proceedings?

Competency of appeal by stated case

(a) The defender's submissions

[10] Mrs Wolffe for the defender submitted that the appeal to this court by stated case was incompetent. Section 6(3) of the 1882 Act provided that "at the diet of proof" an application for lawburrows was to be disposed of "summarily under the provisions of the Summary Jurisdiction Acts". In Dove Wilson, Practice of the Sheriff Courts, 4^th Edition (1891), at page 445, it was doubted whether that conferred a right of appeal under the Summary Jurisdiction Acts, and the view was expressed (at page 446) that in any event the applicant had no right of appeal against refusal of the application. However, in Mackenzie v Maclennan1916 SC 617, it was held that since the passing of the 1882 Act it was incompetent to seek suspension of a decree of lawburrows, and that the only method by which such a decree could then be reviewed was by stated case under section 60 of the Summary Jurisdiction (Scotland) Act 1908. That, however, was a case in which the appellant was the person against whom a decree of lawburrows had been pronounced. Nothing was said in that case to suggest that an unsuccessful applicant for lawburrows had a right of appeal under that provision, although section 60 bore to confer a right of appeal by stated case on "either party to the cause". Views to the contrary were expressed in Wallace, The Practice of the Sheriff Court, (1909) at 457; Lewis, Sheriff Court Practice, (1923) at 163; and Greens' Encyclopaedia (1930), sv Lawburrows, Vol. IX, paragraph 134. The defender's right to appeal by stated case depended on the breadth of the meaning of the word "cause" in the Summary Jurisdiction Acts (1908 Act, section 2). The position was very different under the current legislation. Sections 175 and 176 of the 1995 Act are expressed in terms which can only apply to criminal proceedings. Although the view has been expressed that the right of appeal by way of stated case is available to both the defender and the pursuer (Dobie, Sheriff Court Practice, 511; but cf Sheriff Dobie's article "Lawburrows: an Ancient Remedy", 1933 JR 49 at 56), and elsewhere reference has been made to the right of appeal by stated case without distinguishing between the position of the pursuer and the defender (Macphail, Sheriff Court Practice, 3^rd Edition, paragraph 24.04; Renton & Brown, Criminal Procedure, 5^th Edition (1983), paragraph 12.04 (omitted from the 6^th Edition (1996)), there is no express authoritative support for the view that the unsuccessful pursuer can appeal by stated case to the High Court. In Morton v Liddle 1996 JC 194, this court entertained an appeal by stated case at the instance of the defenders against whom the remedy of lawburrows had been granted, but the competency of that mode of appeal was not questioned or discussed in the course of the proceedings.

(b) The pursuer's submissions

[11] Although the pursuer's initial position appeared to be that the competent mode of appeal against refusal of lawburrows was by civil appeal to the sheriff principal (as happened in Duff v Lord Advocate, Sheriff Principal Bowen, 26 January 2007, unreported, although an appeal to the Court of Session was dismissed as incompetent, without any opinion being issued, on 8 May 2007), and that he had been prevented by the sheriff clerk at Dumfries from following that course in the present case, he nevertheless sought to support the competency of appeal by stated case to this court. He did so by reference to Cooney v Kirkpatrick 1990 GWD 5-285. The very brief report indicates that the appeal was brought by the unsuccessful applicant for lawburrows (who was a vexatious litigant), and that this court refused the appeal, holding that since the appeal against the sheriff's decision had to be by stated case, the court could not order the independent inquiry which the appellant sought. Reference was also made to Cooney v Kirkpatrick 1989 SC 61.

(c) Discussion

[12] In our opinion it is incompetent for an applicant for lawburrows, following refusal of that remedy by the sheriff in a civil application, to appeal to the High Court of Justiciary by stated case.

[13] Before the enactment of the 1882 Act, the remedy of suspension was available to a party laid under lawburrows, if he maintained that the warrant had been taken unnecessarily and without probable cause (McGlashan, Practical Notes on the Jurisdiction and Forms of Process in Civil Causes of the Sheriff Courts of Scotland, 4^th Edition (1868), paragraph 2147). In the absence of authority on the point, we would have been inclined to regard the 1882 Act as silent on the subject of rights of appeal. Section 6(3), which makes reference to the Summary Jurisdiction Acts, does so in relation to the manner in which the application is to be disposed of at the diet of proof. However, in Mackenzie v Maclennan, it was held that the effect of that provision was to supersede the remedy of suspension and to make available appeal to the High Court by stated case. Lord President Strathclyde said (at 620):

"We are now thrown back upon the Summary Jurisdiction Act of 1908, for, unquestionably, this is a 'cause' within the meaning of section 2 of that Act; and, if so, and if an investigation takes place into the facts before an inferior judicatory, and no note or written record of the facts disclosed in the evidence is kept, then there is one way and one way only by which an appeal may be taken against the decision of the inferior judicatory, namely, by way of stated case under section 60 of the Act.

... Accordingly, it appears to me that the old remedies are gone with the old procedure, and that an entirely new code of procedure has been brought into existence by the statute of 1882, by which the old remedy of suspension is abrogated entirely."

[14] In Mackenzie v Maclennan the availability of a right of appeal by an unsuccessful applicant for lawburrows was not expressly addressed, but section 60 of the 1908 Act, to which the Lord President referred, provided that:

	"On the final determination of any cause, either party to the cause may, notwithstanding any provision in any statute excluding review, make application to the court to state a case for the opinion of the High Court ...and it shall thereupon be competent to appeal to and bring under the review of the High Court by stated case ―
	(1)	The relevancy of the complaint;
	(2)	Any irregularity of procedure;
	(3)	Any alleged error of the court in point of law; and
	(4)	Generally any matter which may at present be competently reviewed by suspension, advocation, or appeal under the Heritable Jurisdictions (Scotland) Act 1746 or otherwise."

In section 2 of the 1908 Act, "cause" was defined as meaning and including "every proceeding brought under this Act". It appears to us that it was thus at least arguable, so long as the definition of "cause" remained as set out in section 2 and a provision equivalent to section 60 remained in force, that the right of appeal by stated case held in Mackenzie v Maclennan to exist was available to an unsuccessful pursuer in an action of lawburrows as well as to a defender against whom an order was pronounced. That appears to be the view expressed in Dobie, Sheriff Court Practice, at 511.

[15] Whether that view was correct or not, however, the existence of a right of appeal by stated case to the High Court, whether at the instance of the pursuer or the defender in an action of lawburrows, was a consequence of the reference in section 6(3) of the 1882 Act to the Summary Jurisdiction Acts, and the breadth of the definition of "cause" in those Acts. It was, it seems to us, an anomalous arrangement, because it involved appeal from civil proceedings before the sheriff to the supreme criminal court, the High Court of Justiciary, rather than to the supreme civil court, the Court of Session. In our opinion, that anomalous appellate jurisdiction of the High Court cannot survive the repeal of the Summary Jurisdiction Acts. The current provisions for appeal by stated case to the High Court are expressed in terms which are of exclusively criminal application. A stated case is available, in terms of section 176 et seq. of the 1995 Act, as the vehicle for appeals under section 175(2)(a) or (d), i.e. appeals by a person convicted of an offence against conviction, or conviction and sentence. These provisions can have no application, in our opinion, to civil proceedings such as an action of lawburrows.

[16] We are conscious that this court has, on occasions subsequent to the repeal of the Summary Jurisdiction Acts, entertained appeals by way of stated case in proceedings for lawburrows. Morton v Liddle was an appeal at the instance of a defender. The court (at 196) noted the terms of section 6(3) of the 1882 Act and the decision in Mackenzie v Maclennan, but did not note that the provisions of the 1995 Act regulating stated cases were expressed in terms which could not apply to civil proceedings. The issue of the competency of appeal by stated case appears not to have been raised by the parties or by the court ex proprio motu. It is difficult to be certain what was in issue in Cooney v Kirkpatrick (1990), since the report is so brief, but the issue of the competency of appeal to this court by stated case does not appear to have been discussed.

[17] Mrs Wolffe, for the defender, was content to argue that appeal to this court by stated case was incompetent. She did not go on to make submissions about whether some other form of appeal was competent. As we have already noted, the pursuer, at one stage, appeared to adopt the position that the proper form of appeal from the sheriff's decision was a civil appeal to the sheriff principal (c.f. Duff v Lord Advocate), but ultimately argued for the competency of appeal by stated case. Since we have not heard full argument on the point, we reserve our opinion as to whether a civil appeal to the sheriff principal or the Court of Session would be competent. It is sufficient for the disposal of this appeal for us to hold, as we do, that appeal to this court by stated case is no longer competent.

The merits of the appeal

[18] Since we have held that the appeal to this court is incompetent, the merits of the appeal do not arise for consideration. Since we heard argument on the merits, however, it is appropriate that we indicate briefly the conclusions we would have reached if they had been competently before us. There were broadly two issues. The first was whether it was incompetent for the sheriff at the diet fixed for proof to entertain the defender's motion to dismiss the action as incompetent and irrelevant without hearing evidence. The second was whether the sheriff erred in upholding the defender's submissions that the action was incompetent and irrelevant.

The competency of the procedure before the sheriff

(a) The pursuer's submissions

[19] The pursuer's primary submission was that there could be no debate on preliminary pleas in an action of lawburrows. The matter had to proceed to proof. It was therefore incompetent for the sheriff to hear submissions on the competency and relevancy of the action, and dismiss it as incompetent or irrelevant, without allowing the pursuer to give the evidence and lead the witnesses he wished to give and lead. In support of his submission, the pursuer relied on section 6(2) and (3) of the 1882 Act. Warrant to both parties to cite witnesses was to be granted immediately on presentation of the application, and at the diet of proof the application was to be disposed of summarily without written pleadings or any record of the evidence being kept. Those provisions, properly construed, excluded the consideration of preliminary pleas. Reference was made to an article "Lawburrows: Elegant Remedy or Absurd Form" by William J. Stewart, 1988 SLT (News) 181, in which the writer, considering possible reform of the law of lawburrows, said (at 183, col. 2):

"Learning from Handy v Bowman [Sheriff E. F. Bowen, Dundee Sheriff Court, 22 September 1986, unreported] the procedure should be changed to allow a debate to be fixed rather than make a hearing essential".

In Handy v Bowman the sheriff, having heard proof, dismissed the action by sustaining a preliminary plea.

[20] In any event, the pursuer submitted, the sheriff had been wrong to dismiss the action as incompetent and irrelevant. He had made relevant averments that he apprehended harm from the defender. The apprehension of any kind of harm would found an action of lawburrows (Walker, Civil Remedies, 1210). Here the complaint was that the defender incited his officers to fabricate police reports and mislead the procurator fiscal and Crown Office.

(b) The defender's submissions

[21] Mrs Wolffe submitted first that it was competent for the sheriff to entertain argument as to the competency and relevancy of the argument, and, if satisfied that the action was incompetent or irrelevant, to dismiss it without hearing evidence. Nothing in section 6 of the 1882 Act precluded that course. Rule 2.31 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals Etc. Rules) 1999 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.

[22] Mrs Wolffe properly drew our attention to certain observations of Sheriff Macphail in Morrow v Neil which were against her submission. At pages 70 and 71, having drawn attention to the facts that in that case (a) there had been no warrant to cite witnesses and no diet of proof had been fixed, in contravention of section 6(2) and (3) of the 1882 Act, and (b) that defences were lodged and a diet of debate was fixed, Sheriff Macphail observed:

"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."

Mrs Wolffe submitted that, if those observations were to be construed as precluding the sheriff from hearing submissions on competency and relevancy before hearing evidence, they went too far.

[23] As to the substance of the issues decided by the sheriff in the present case, Mrs Wolffe submitted that he had rightly held that the pursuer's pleadings were fundamentally defective in that they did not aver apprehension of physical violence and sought to obtain a remedy against the defender on the basis of allegations that he was answerable for harm done or threatened by others.

(c) Discussion

[24] In our opinion, the sheriff was entitled to take the procedural course which he took. It is no doubt right that section 6 of the 1882 Act was designed to ensure inter alia that the application proceeds expeditiously. We agree with the view expressed by Sheriff Macphail in Morrow v Neil that the statutory procedure envisaged that warrant to cite witness should be granted immediately on presentation of the application, and that there should be no developed pleadings. It was contemplated that the application would proceed without delay to a full hearing. We do not, however, agree that the sheriff is precluded from hearing submissions that the application is incompetent, or that it is fundamentally irrelevant, and doing so without hearing evidence. We consider that it is a matter for the sheriff's discretion to determine how he should proceed. If it seems expedient to hear submissions on competency and relevancy before proceeding to hear evidence, with the possible outcome that it will be unnecessary to hear evidence, that is a matter for him. 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.

[25] We do not consider that the points taken by the defender before the sheriff bear out the proposition that the application was incompetent. It was, in our view, competent for the pursuer to seek the remedy of lawburrows against the defender if he had a proper factual foundation for doing so.

[26] We are, however, satisfied that the sheriff was right to dismiss the application. Lawburrows affords protection against apprehended violence. The original provision of 1421 was concerned with bodily harm. The 1591 Act extended the protection to property, but it was still concerned with physical harm. That view of the scope of the remedy is borne out by the authorities (Mackenzie v Maclennan 1916 1 SLT 186 at 188 per the Lord Ordinary, Lord Ormidale, in a passage not reported in 1916 S.C.; Tahir v Gosal, Sheriff J. Irvine Smith, Glasgow Sheriff Court, 16 May 1974, unreported, quoted in Morrow v Neil at 67; Morrow v Neil, per Sheriff Macphail at 67and 69; Porteous v Rutherford 1980 SLT (Sh Ct) 129; Morton v Liddle, per Lord Justice Clerk Ross at 198). The pursuer's pleadings do not indicate any apprehension of physical violence or harm to him, his family or his property. They are therefore irrelevant. If he were to have proved all he avers, he would still have failed.

[27] The other ground on which the sheriff proceeded is less clear, if only because the pursuer's pleadings are unclear. If the pursuer's pleadings are to be read as seeking to hold the defender vicariously liable for wrongdoing on the part of officers in the police force which he formerly commanded, the sheriff was, in our opinion, right to regard them as irrelevant (Hardy v Bowman). There are, however, passages in his pleadings in which he accuses the defender of inciting his officers to wrongdoing. We reserve our opinion on whether incitement of another to the doing of harm of the requisite sort might suffice as a foundation for the remedy of lawburrows. These passages are, however, of no avail to the pursuer, because they do not accuse the defender of inciting his officers to do physical harm to the pursuer or his property.

[28] Had it been necessary for us to address the issue, we would therefore have held that the sheriff was right to dismiss the pursuer's application as irrelevant.

Result

[29] For the reasons given in paragraphs [12] to [17], the appeal is dismissed as incompetent.