Scottish Sheriff Court Decisions

B250/03

The Sheriff Principal, having resumed consideration of the application, makes the following findings in fact.

1. The applicant, who was born on 13 June 1960, is a messenger-at-arms and sheriff officer. He is the proprietor of Graham Stewart & Co, Sheriff Officers, who commenced business in January 2003 and have their principal place of business at 20/23 Woodside Place, Glasgow G3 7QF.

2. The applicant is suitably qualified, and is a fit and proper person, to be a sheriff officer. He holds commissions as a sheriff officer in the sheriffdoms of Glasgow and Strathkelvin; South Strathclyde, Dumfries and Galloway; and North Strathclyde, excluding the sheriff court districts of Campbeltown and Oban. He has applied to the Sheriff Principal of Tayside, Central and Fife for a commission as a sheriff officer throughout that sheriffdom.

3. The applicant practises from his place of business in Glasgow. He employs another sheriff officer, Mr Colin Wicks, who has held a commission for the sheriffdom of Lothian and Borders since 18 May 2000. Approximately 95% of the instructions received by the applicant's firm relate to mortgage litigation under the Conveyancing and Feudal Reform (Scotland) Act 1970, as amended. The firm carries out approximately 75% of its work on behalf of Aberdein Considine & Co, Solicitors, Aberdeen. who act on behalf of the majority of the mortgage lenders in the United Kingdom. These solicitors instruct only the applicant's firm in relation to all citation and diligence to be carried out throughout the sheriffdom of Lothian and Borders. They gave the firm some 261 sets of instructions for this sheriffdom in 2003. These solicitors expect that the volume of mortgage litigation will increase in the future, with the result that they will give the applicant's firm an increased volume of instructions for this sheriffdom.

4. The applicant's firm also receives instructions from a further 19 clients who are primarily firms of solicitors, including BMK Wilson who instruct the firm in respect of all citation and diligence within this sheriffdom.

5. The applicant neither resides in nor has a place of business in this sheriffdom. Other sheriff officers who hold commissions for this sheriffdom neither reside in, nor practice from a place of business in, the sheriffdom.

6. It is not unknown for a sheriff officer to hold commissions for a number of different sheriffdoms. Six officers with commissions for this sheriffdom hold commissions in four other sheriffdoms.

7. It is now unnecessary for a sheriff officer to have a principal document, certified copy or certified copy interlocutor in his possession before he can serve the document: it is sufficient that his firm should have such a document in its possession. The applicant can have instructions sent to him by fax. He has the use of a mobile telephone. He has the use of office premises at the Abbey Business Centre, 83 Princes Street, Edinburgh, where he has access to e-mail and fax communications. If he receives instructions when he is out of the office he arranges for his office to fax to him a copy of the necessary document or documents, and he proceeds directly to the place where the instructions are to be executed.

8. The applicant is familiar with this sheriffdom. His firm already has a connection with it. All parts of the sheriffdom are reasonably accessible from the appellant's office premises in Glasgow.

9. The applicant at present spends a large part of his time working within his firm's Glasgow office on training, banking, accounting and general administration. As the volume of instructions to his firm increases, he will be able to assign certain of that office work to a member of his administrative staff and to execute more instructions outside the office.

10. The applicant's primary object in applying for a commission in this sheriffdom is to enable his firm to execute here an increasing volume of instructions which will be coming to his firm in any event. His firm will not be competing with the sheriff officers now practising within this sheriffdom for business which those officers at present discharge.

11. Mr Wilks, the sheriff officer employed by the applicant's firm, will not be able to execute by himself all the instructions for this sheriffdom which the firm is expected to receive. The applicant would work with him, and would also carry out instructions when he was on holiday or absent due to ill health. It would not be satisfactory for the applicant's firm to use another firm of sheriff officers as their agents.

12. About 85 practising sheriff officers hold commissions for this sheriffdom. Some of them, however, who also hold commissions for other sheriffdoms, may seldom or never practice here. Since 1998 some 12 officers holding commissions for this sheriffdom have retired and 19 new commissions for this sheriffdom have been granted. The volume of ordinary causes, summary causes and small claims initiated and disposed of in this sheriffdom each year has fallen slightly since 2000. In 1999, 23,281 such actions were initiated and 22,792 disposed of. The corresponding figures for the succeeding years are: 2000, 24,030, 20,878; 2001, 23,220, 25,865; 2002, 19,825, 17,229. On the other hand, in Edinburgh in 2002, the last year in which poindings were competent, 320 poindings were reported, while in 2003, 370 attachments were reported.

Being satisfied that the applicant is suitably qualified, and is a fit and proper person, to be a sheriff officer, grants to the applicant a commission as a sheriff officer in the sheriff court districts of Duns, Edinburgh, Haddington, Jedburgh, Linlithgow, Peebles and Selkirk in the Sheriffdom of Lothian and Borders, said commission to be issued upon his taking the oath or making the declaration de fideli administratione officii and upon production of a receipt issued by the nominated sheriff clerk at Glasgow in respect of a current bond of caution and policy of professional indemnity cover.

[1] This is an application for a commission as a sheriff officer in this sheriffdom. It is brought under rule 8 of the Act of Sederunt (Messengers-at-Arms and Sheriff Officers Rules) 1991 ('the 1991 Rules'). By an interlocutor dated 9 February 2004 I refused to allow a set of joint answers tendered by six sheriff officers to be received, on the ground that they were not timeous. I refer to the note appended to that interlocutor. The application has therefore proceeded as undefended. However, at a hearing on 4 March 2004 I was fully addressed by the applicant's solicitor on all the issues raised in those answers and I was afforded an ample citation of authority, as requested in my note of 9 February 2004.

[2] There is no doubt that the applicant is suitably qualified, and is a fit and proper person, to be a sheriff officer. He accordingly fulfils the requirement imposed by rule 8(5) of the 1991 Rules. The other criteria which may guide a sheriff principal who is considering an application have been discussed in a number of cases. In this sheriffdom the dicta of Sheriff Principal Sir Frederick O'Brien, QC, in Macpherson, Petitioner 1989 SLT (Sh Ct) 53 naturally carry particular weight. He pointed out (at page 55A):

He went on to propose two questions (at page 55C-D):

[3] The first question has two alternative branches. The first branch questions whether there is a need for a new sheriff officer in the districts applied for. That question is difficult to answer, as may appear from finding-in-fact 12. The number of sheriff officers in practice who hold commissions in this sheriffdom has slightly increased since 1998, but it is not clear to what extent each of them works here. The volume of civil actions in the courts of the sheriffdom has slightly decreased, but it is not clear to what extent that may have impacted on the work of those sheriff officers who are in regular practice here.

[4] The second branch of the question, however, admits of a clear answer. The introduction of the applicant will not seriously prejudice existing sheriff officers, for the reason given in finding-in-fact 10.

[5] The second question is whether the applicant will be in a position to offer the level of service which a sheriff principal is entitled to expect when he grants a commission. It appears that the way in which this question is approached may have altered in recent years. A view of the role of the sheriff officer which was taken some 70 years ago may be discerned in the opinion of Lord Morison in Stewart v Reid 1934 SC 69 (at page 77):

He also observed (at page 78):

It is clear that that is not an accurate description of modern practice. Nowadays, at least in certain circumstances, a sheriff officer may neither reside in, nor carry on business in, a sheriffdom for which he holds a commission: see finding-in-fact 5. A sheriff principal may in some cases take the view that an applicant's non-residence in the sheriffdom is not a factor of any great weight (Murray, Sheriff Principal J J Maguire, QC, Perth Sheriff Court, 17 October 1994, unreported).

[6] It is also the case that a sheriff officer may hold a commission for more than one sheriffdom; and some have commissions for five of the six sheriffdoms of Scotland: see finding-in-fact 6. The latter consideration seems to indicate how far we may have travelled from the view of Sheriff Principal O'Brien in Macpherson (at page 55A-B):

[7] In these changed circumstances, how is the second question to be answered? In my opinion, it is necessary to have regard to the quality of the service which the officer would be in a position to offer to those who chose to instruct him. It may now be possible in some cases for a sheriff officer to provide his clients with a satisfactory service in a sheriffdom in which he neither resides nor carries on business. Such an officer may be assisted by the rule that he may serve a document without having in his possession the principal document, a certified copy, or the certified copy interlocutor allowing service of it: Ordinary Cause Rules 1993, rule 5.4(5); Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999, rule 2.11(5); Summary Cause Rules 2002, rule 5.4(5); Small Claim Rules 2002, rule 6.4(5).

[8] It is important, however, that every application of this kind should be decided by reference to its own facts and circumstances: it would be imprudent to formulate rules of general application (Finnigan, Sheriff Principal C G B Nicholson, QC, Edinburgh Sheriff Court, 12 July 1993, unreported). In the present case the applicant's access to e-mail and fax communications would clearly help him to provide his clients with an effective service: see finding-in-fact 7. It is also relevant that all parts of the sheriffdom are reasonably accessible from his office premises in Glasgow: finding-in-fact 8. A further relevant consideration is that if the applicant does not receive a commission, his firm will be obliged to use another firm of sheriff officers as their agents. That would not be satisfactory from the standpoint of the clients of the applicant's firm who have chosen to place their instructions with that firm and no other firm: finding-in-fact 11; cf Moore 2001 SLT (Sh Ct) 111 (Sheriff Principal J C McInnes, QC, Aberdeen Sheriff Court) at page 113L.

[9] Having considered the whole matter I am satisfied that the granting of the application would not seriously prejudice existing sheriff officers; that the applicant would be in a position to offer to his clients the kind of service which I am entitled to expect a sheriff officer to provide; and that he would be able to carry out the duty he as an officer of court would owe to me as sheriff principal. I have accordingly decided to grant the application.