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Cite as: [2003] ScotSC 50

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Henry v. McGrane-Langvik [2003] ScotSC 50 (20 October 2003) SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

A156/03

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		GERARD HENRY
		Pursuer and Respondent
		against
		THERESA McGRANE-LANGVIK
		Defender and Appellant

Act: Mr Beardmore, advocate, instructed by Graeme Murray & Co, Aberdeen

Alt: Miss McLeod, solicitor, Taggart Meil Mathers, Aberdeen

Aberdeen: 20^th October 2003

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 5^th March 2003; in respect that the defender's application for legal aid has now been determined, recalls the sist granted by the sheriff; quoad ultra reserves all questions of expenses and appoints parties to be heard thereon at Aberdeen Sheriff Court
on Thursday 23^rd October 2003 at 9.30 am.

Note

In this case the pursuer and respondent craved the court to interdict the defender and appellant from harassing him by abusing him verbally, threatening him to attend upon his family home or contact members of his family, approaching him or within two hundred yards of either his home or his workplace or telephoning him, putting him into a state of fear and alarm or distress or using violence towards him any time within the sheriffdom, and further to grant interdict ad interim. This was all in terms of crave 1 of the initial writ. In terms of crave 2 the pursuer sought a non-harassment order against the defender in terms of section 8 of the Protection from Harassment Act 1997.

The action was raised on 28^th January 2003 and on that same date the sheriff, in the absence of the defender, granted interim interdict against her in the terms set out in crave 1. She further appointed parties or their agents to be heard on 4^th February 2003 and appointed the pursuer to intimate this diet to the defender forthwith. This was evidently done since the certificate of citation signed by a sheriff officer records that at 4.25 pm on 28^th January 2003 he delivered a full copy of the initial writ, warrant and interim interdict to the defender personally within her dwelling place at some university halls of residence in Old Aberdeen.

The hearing assigned for 4^th February 2003 duly took place, as did further interim hearings on 6^th and 11^th February 2003. At each of these hearings each party was represented by a solicitor and on the third occasion it appears from the relevant interlocutor that the defender was also present. The upshot of each hearing was that the interim interdict which had originally been granted on 28^th January 2003 was continued until the further orders of the court.

On 13^th February 2003 a letter dated 12^th February 2003 was received at the court from the defender's then agents intimating their resignation from acting on her behalf. By interlocutor dated 14^th February 2003 the sheriff accordingly fixed a peremptory diet for 5^th March 2003 under the usual certification to the defender in the event that she failed to appear or to be represented at that diet. The defender evidently instructed her current solicitors shortly afterwards for on 21^st February 2003 they lodged a motion on her behalf to sist the cause pending determination of her legal aid application. On the same date they also lodged a notice of opposition to a motion which had been lodged on behalf of the pursuer on 18^th February 2003, the substance of which was to allow the initial writ to be amended by the insertion of a new crave 2 in terms of which the court was invited to attach a power of arrest to the interim interdict previously granted to endure for a period of three years in terms of the Protection from Abuse (Scotland) Act 2001. In terms of the pursuer's motion the court was moved to grant a power of arrest in terms of this new crave. Arrangements were in due course made for both parties' motions to be heard by the sheriff at the peremptory diet on 5^th March 2003.

Both parties were represented at the peremptory diet. The sheriff had before her an affidavit and supplementary affidavit from each of the pursuer and his wife, an affidavit from his business colleague Mr Denis Kealey and an affidavit from the defender. The upshot of the hearing was that the sheriff pronounced an interlocutor allowing the initial writ to be amended by the insertion of the new crave 2 and attached a power of arrest to the interim interdict previously granted for a period of three years from 5^th March 2003. On the motion of the pursuer made at the bar she also allowed the instance of the initial writ to be amended to design the defender as residing at an address in Norway in place of an address in Aberdeen, and she further sisted the cause to enable the defender to apply for legal aid. It is this interlocutor which is the subject of the present appeal.

After I had granted a motion on behalf of the defender to be allowed to appeal late against the sheriff's interlocutor, she helpfully produced a note dated 19^th May 2003 in which she explained why she attached a power of arrest to the interim interdict, and further why she directed that it should be for a period of three years from 5^th March 2003. Her note speaks for itself, and I do not think that it is necessary to rehearse it in full here.

Section 1 of the Protection from Abuse (Scotland) Act 2001 provides:

(1) A person who is applying for, or who has obtained, an interdict for the purpose of protection against abuse may apply to the court for a power of arrest to be attached to the interdict under this Act.

The court must, on such application, attach a power of arrest to the interdict if satisfied that -

the interdicted person has been given an opportunity to be heard by, or represented before, the court;

attaching the power of arrest would not result in the interdicted person being subject, in relation to the interdict, to a power of arrest under both this Act and the Matrimonial Homes (Family Protection) (Scotland) Act 1981; and

attaching the power of arrest is necessary to protect the applicant from a risk of abuse in breach of the interdict.

The court, on attaching a power of arrest, must specify a date of expiry for the power, being a date not later than three years after the date when the power is attached.

Section 7 of the Act provides, inter alia, that unless the context otherwise requires "abuse" includes violence, harassment, threatening conduct, and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress, "conduct" includes (a) speech; and (b) presence in a specified place or area, and "interdict" includes interim interdict .

Opening the appeal, the defender's solicitor explained that it was directed against the sheriff's decision to attach a power of arrest to the interim interdict which had previously been granted. She submitted that, in doing so, the sheriff had exercised her discretion unreasonably and that the circumstances of this particular case did not meet the requirements of section 1 of the Act.

The defender's solicitor proceeded to direct a number of detailed criticisms against the decision of the sheriff. She pointed out that in the initial writ in its original form the defender had been designed as residing at the Royal Cornhill Hospital in Aberdeen. This was clearly not so. She had been visiting Aberdeen when the writ had been served upon her, not at the hospital, but at university halls of residence where she had had temporary accommodation. In answer 1 of her defences it was explained that she had been a student at Aberdeen University from September 1999 to July 2002 and further that the parties had had an intimate relationship between February and September 2000 and again between January and October 2002. By the time of the hearing before the sheriff it had been accepted by the pursuer that the defender now resided in Norway, and her designation in the instance of the initial writ had been amended accordingly. It was submitted that the sheriff had attached insufficient weight to the fact that the defender resided in Norway and so would be unlikely to breach the interim interdict. It would only be in very unusual circumstances, so it was argued, that a court would deem it necessary to attach a power of arrest to an interim interdict where the defender was resident abroad and where the likelihood of any risk of abuse as specified in section 1 of the Act would be minimal. The defender's position was that there was no risk at all.

In response, counsel for the pursuer acknowledged that the defender was primarily resident in Norway. But he submitted that she had a substantial connection with Aberdeen and had been here both when the initial writ had been served upon her and again on 15^th February 2003 (when the incident described in the supplementary affidavits of the pursuer and his wife had occurred). At the foot of page 2 of her note, the sheriff specifically refers to the fact that the defender was now living in Norway, and this must have been present in her mind at the hearing since, as already indicated, in terms of the interlocutor which is now under appeal she allowed amendment of the initial writ to give effect to the change of designation of the defender. At the end of the day it was a matter for the sheriff to determine what weight should be given to the fact of the defender's residence in Norway, and I am quite unable to hold that she gave insufficient weight to this fact in particular in light of the defender's previous close connection with Aberdeen while she was a student at Aberdeen University, her subsequent visits here as recorded in her own affidavit dated 6^th February 2003 (which she signed in the presence of a solicitor in Aberdeen) and her admitted presence here on 15^th February 2003. As for her future intentions, it is to be observed that on page 2 of her affidavit she stated, inter alia; "I need to do a thesis on the relationship between exercise and adult mental health. If all goes according to plan I would only return to the Aberdeen area every two to three months for several days. I have several friends who live in Aberdeen or the Aberdeen area and would intend to return to Aberdeen on a very infrequent basis to meet with them". It might have been a different matter if it had been plain before the sheriff that the defender had had no intention at all of returning to Aberdeen from Norway in the next three years. But that was clearly not the case.

The defender's solicitor next submitted that the sheriff had likewise attached insufficient weight to a letter dated 4^th March 2003 from Dr John S Callender, a consultant psychiatrist at the Royal Cornhill Hospital, Aberdeen. It was explained that this letter (which now forms no. 6/4 of process) had been lodged at the bar at the outset of the hearing before the sheriff on 5^th March 2003. The letter states, in short, that the defender attended Dr Callender's out-patient clinic between October 2001 and July 2002 when she was discharged from his care. The letter also states that the defender had at no time been an employee of the hospital or "been employed or has any intention of seeking employment with Grampian Primary Care NHS Trust". The defender's solicitor explained that this letter had been obtained to answer the averment in article 1 of the condescendence to the effect that the defender had a contract of employment working at the Royal Cornhill Hospital.

Curiously this letter is date-stamped as having been received in the sheriff clerk's office on 13^th March 2003. The sheriff does not refer to it specifically in her note. But I am quite content to accept the word of the defender's solicitor that the letter was before the sheriff at the hearing on 5^th March 2003. I confess that it seems to me that its significance to the issues which the sheriff had to decide may, at best, be described as marginal in light of the other circumstances in the case, and again I am unable to hold that the sheriff attached insufficient weight to it.

The defender's solicitor next submitted that the sheriff had exercised her discretion unreasonably in finding that the allegations in the affidavits lodged on behalf of the pursuer had given rise to the necessity of protecting him from a risk of abuse in breach of the interim interdict. She drew attention to the supplementary affidavits of the pursuer and his wife which described what, according to them, occurred on 15^th February 2003. After describing three incidents involving the defender which took place within a period of less than one hour the pursuer stated: "I appreciate that strictly speaking the defender did not breach the interdict ....." Likewise, in her affidavit the pursuer's wife, after describing what had happened, stated: "I appreciate that what (the defender) did is not breaching the terms of the interdict which my husband has in place ....". Thus, said the defender's solicitor, both the pursuer and his wife had accepted that the defender's conduct on 15^th February 2003 had not breached the interim interdict previously granted and, given these admissions, the sheriff had erred in the exercise of her discretion in attaching to it the power of arrest.

In my opinion the short answer to this particular submission is that these "admissions" on the part of the pursuer and his wife must be read in the context of everything else that they had to say about the events of 15^th February 2003. When this is done, I do not think that it could be said that the sheriff acted unreasonably in effectively ignoring these "admissions", or at least paying very little attention to them.

The defender's solicitor next proceeded to examine the specific allegations about the events of 15^th February 2003 in the supplementary affidavits of the pursuer and his wife. She submitted that these allegations, even if true, would not merit the attaching of a power of arrest to the interim interdict since the test set out in section 1(2)(c) of the Act had not been satisfied, namely that attaching the power of arrest was necessary to protect the pursuer from a risk of abuse in breach of the interim interdict. The defender's solicitor explained what, according to the defender, had happened on the day in question, and in short she stated that the defender accepted that she had seen the pursuer and his wife on two occasions in the course of the day (not three as claimed by the pursuer and his wife) but denied that there had been any threatening behaviour on her part towards them.

In response counsel for the pursuer submitted, rightly in my opinion, that the sheriff had properly applied the tests set out in the Act and had reached a perfectly reasonable and correct conclusion in the light of the material which had been placed before her. It was a matter for the sheriff in the exercise of her discretion to assess that material and decide what parts of it she should accept and what parts she should reject and I am not in the least persuaded that her conclusions in this respect may be categorised as unreasonable. As for the submission that, even if the allegations of the pursuer and his wife were true, the conduct on the part of the defender complained of could not be said to give rise to a risk of abuse or the necessity of protecting the pursuer from such a risk, the supplementary affidavits of the pursuer and his wife largely speak for themselves. But it is to be observed that both witnesses speak variously of having been intimidated, frightened, scared and terrified by the defender's behaviour during the three incidents, all of which occurred within the space of one hour and, as the sheriff observes in her note, within five days of the interim interdict having been continued (and this, be it noted, in the presence of the defender herself). In my opinion there was ample material before the sheriff, in particular in the two supplementary affidavits, to allow her to be satisfied that attaching a power of arrest was necessary to protect the pursuer from a risk of abuse in breach of the interim interdict, and it was a matter for the sheriff to determine whether or not she was so satisfied in light of this material.

The defender's solicitor submitted finally that, even if the power of arrest was justified, the sheriff had exercised her discretion unreasonably in granting it for a period of as much as three years. The sheriff, so it was said, had reached a conclusion that she would not have reached had she made a reasonable consideration of all the matters which had been put before her.

The sheriff dealt with this aspect of the matter in the final paragraph of her note. I need not repeat this here. It was within her discretion to specify the date of expiry for the power of arrest which she had granted and it certainly does not appear to me that her decision in this respect may be said to be unreasonable.

In the course of the discussion there was some consideration given to the grounds upon which an appeal court would be entitled to interfere with the decision of a court at first instance to attach a power of arrest in terms of section 1 of the Act. Since I have in any event rejected all the submissions which were made on behalf of the defender, it is unnecessary that I should express a concluded opinion on this matter. But it may be of assistance to state my tentative conclusion, namely that the grounds upon which an appeal court might interfere in a case such as this are essentially the same as the grounds upon which an appeal court might interfere with the decision of a court of first instance to grant an interim exclusion order under section 4 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 - see Bell v Bell 1983 SLT 224, Ward v Ward 1983 SLT 472 and McCafferty v McCafferty 1986 SLT 650.

Counsel for the pursuer invited me to reserve the question of expenses in the event that the appeal was unsuccessful. This was not opposed by the defender's solicitor, and I have fixed a further hearing accordingly.