Scottish Sheriff Court Decisions

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Cite as: [2004] ScotSC 28

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SHERIFFDOM OF LOTHIAN AND BORDERS

A3699/03

JUDGMENT OF

SHERIFF PRINCIPAL IAIN MACPHAIL QC

in the appeal

in the cause

MYLES OLIVER FITZPATRICK

Pursuer and Appellant

against

THE ADVOCATE GENERAL FOR SCOTLAND for and on behalf of THE COMMISSIONERS OF INLAND REVENUE

Defender and Respondent

_________________________

Act: Party

Alt: Glennie; Inland Revenue Solicitor's Office

EDINBURGH, 5 April 2004

The Sheriff Principal, having resumed consideration of the cause, dismisses the appeal as incompetent; makes no order as to expenses.

NOTE/

NOTE

[1]      This is an appeal against a refusal by a Sheriff to grant a warrant for citation. The pursuer presented in the Civil Department of the Sheriff Clerk's Office an initial writ in a proposed ordinary action. The clerk refused to sign a warrant of citation. The pursuer then applied to the Sheriff for a warrant by virtue of rule 5.1(3) of the Ordinary Cause Rules 1993, which provides:

'(3) Where the sheriff clerk refuses to sign a warrant which he may sign, the party presenting the initial writ may apply to the sheriff for the warrant.'

The Sheriff also refused to sign a warrant, but signed the following:

'The Sheriff, having considered the foregoing initial writ, refuses to grant warrant to cite.'

The pursuer applied for leave to appeal, which the Sheriff granted. The Sheriff Clerk intimated the appeal to the defender, and the appeal was first heard on 18 February 2004, when the pursuer appeared on his own behalf and the defender was represented by a solicitor. I questioned whether the appeal was competent, and referred to Davidson v Davidson (1891) 18 R 884. On the pursuer's motion I continued the hearing until 23 March 2004 to enable him to instruct a solicitor. On 23 March 2004 the pursuer again appeared personally, having been unable to instruct a solicitor. The defender was again represented, by the same solicitor, who intimated that he appeared in the spirit of an amicus curiae, because no action had been raised against the defender. He submitted that the appeal was incompetent, and referred to Davidson. He also referred me to a list of authorities on which the defender intended to found in support of the proposition that the proposed action was itself incompetent.

[2]      In my opinion the appeal is incompetent. No action has commenced because, in the absence of a warrant for citation, no action has been served on the defender. There being no action in dependence, there cannot be any appeal. The statement signed by the Sheriff purporting to be an interlocutor, against which the pursuer has appealed, cannot be an interlocutor since there is no cause in dependence to which it can relate: it is rather a minute recording the Sheriff's refusal to sign. I regret that confusion has probably been caused by the following statement in Macphail, Sheriff Court Practice (2nd ed), vol 1, page 208, para 6.08:

'If the sheriff refuses to grant a warrant he pronounces an interlocutor to that effect, an appeal against which is competent only with leave.'

In a footnote Davidson is cited as authority for that proposition. That, however, is an error. In Davidson the sheriff-substitute refused to grant a warrant to cite, and the Court dismissed as incompetent an appeal against that refusal. It seems clear that the Court so decided on the ground that without a warrant for citation, followed by service, there was no action in court. Correctly understood, Davidson is binding authority for the proposition that an appeal against a refusal of a warrant to cite is incompetent. On that ground, accordingly, the present appeal must be dismissed.

[3]      But the matter does not end there. If a warrant to cite were to be refused, the pursuer would be unable to bring his action. That consideration immediately raises the question whether there would be any infringement of his right of access to justice under article 6 of the European Convention on Human Rights. Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority (which includes a court: section 6(3)(a)) to act in a way which is incompatible with a Convention right. This Court therefore cannot act in a way which is incompatible with the pursuer's right of access to justice. In Brown v Stott 2001 PC 43 Lord Bingham of Cornhill said (at page 51C-D):

'Article 6 contains no express right of access to a court, but in Golder v United Kingdom [(1975) 1 EHRR 524] the European Court held (in para 35 of its judgment) that it would be 'inconceivable' that art 6 should describe in detail the procedural guarantees afforded to parties in a pending law suit and should not first protect that which alone makes it possible to benefit from such guarantees, namely access to a court.'

The European Court went on to concede (in para 38) that the right of access is not absolute. A line of subsequent cases has established the following qualifications: any limitations on the right of access must not impair the 'very essence' of the right; they must pursue a legitimate aim; and there must be a 'reasonable relationship of proportionality between the means employed and the aim sought to be achieved': Ashingdane v UK (1985) 7 EHRR 528, para 57; Lithgow v UK (1986) 8 EHRR 329, para 194; Fayed v UK (1994) 18 EHRR 393, para 65; Tinnelly and Sons Ltd v UK (1998) 27 EHRR 249, para 72; National and Provincial Building Society v UK (1997) 25 EHRR 127, para 105; Devlin v UK (2002) 34 EHRR 43; Z v UK (2001) 10 BHRC 384 para 93. See N Andrews, English Civil Procedure page 159, paras 7.23, 7.24.

[4]      Since I have not had the advantage of hearing argument on this matter I shall only say that the refusal of a warrant in this case does not appear to me to be justified by any of these qualifications. The proposed action is one for declarator, interdict and expenses. Each is a type of remedy which this court may grant. The defender is subject to the jurisdiction of this court. There is no reason why the action should be brought in any other sheriff court. The initial writ is written in legible and intelligible English; it contains a heading, an instance, craves, a condescendence and pleas-in-law; and it is signed by the pursuer personally. Its contents are not abusive or scandalous. The Sheriff has refused to grant a warrant because he does not consider that this court can grant the particular remedies of declarator and interdict which are sought in the writ. That may or may not be so. But in my view that is not an issue which in this case properly arises at the stage of the decision whether to grant a warrant to cite. The latter decision is essentially of an administrative nature, as is apparent from the rule that whether to grant a warrant is in the first instance a matter for the Sheriff Clerk. A judicial decision on questions of competency, which according to the defender's list of authorities would require the consideration of at least four piece of legislation and two reported decisions, is not called for in this case at the stage of the decision whether to grant a warrant: there is no reason why any question of competency should not be judicially determined in the ordinary course of procedure. To deny the pursuer the opportunity to raise his action and deal in due course with such issues of competency as may arise would be, in my opinion, to deny him without sufficient justification his right of access to justice.

[5]      Since the granting of a warrant to cite is, as I have mentioned, essentially an administrative matter, I have given the Sheriff Clerk an instruction of an administrative nature, in terms of section 15(2) of the Sheriff Courts (Scotland) Act 1971, to sign a warrant for citation. Thus, although the appeal has been dismissed, the initial writ will nevertheless be warranted.