Scottish Sheriff Court Decisions

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URL: http://www.bailii.org/scot/cases/ScotSC/2004/54.html
Cite as: [2004] ScotSC 54

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SHERIFFDOM OF LOTHIAN AND BORDERS

F210/04

JUDGMENT OF

SHERIFF PRINCIPAL IAIN MACPHAIL QC

in the appeal

in the cause

X

Pursuer and Appellant

against

Y

First-named Defender and Respondent
and

A

Second-named Defender and Respondent

and

B

Third-named Defender and Respondent

_________________________

Act: Chan; Warners

Alt: (1) Hinsley; Drummond Miller WS

(2) Di Biasio; Sneddon Morrison, Whitburn

(3) Di Biasio; Sneddon Morrison, Whitburn

EDINBURGH, 16 August 2004.

The Sheriff Principal, having resumed consideration of the cause, allows the first crave of the initial writ to be amended by the deletion of the words 'A and' and by the deletion of the words 'children' and 'children's' wherever they occur in the said crave and the substitution therefor respectively of the words 'child' and 'child's'; dismisses the action quoad the second-named defender and respondent A; dismisses the appeal as incompetent; finds the pursuer and appellant liable to the second-named defender and respondent in the expenses of the cause including the expenses of the appeal, finds the pursuer and appellant liable to the first-named and third-named defenders and respondents in the expenses of the appeal, allows accounts thereof to be given in and remits the same when lodged to the Auditor of Court to tax and to report; remits the cause to the Sheriff at Linlithgow to proceed as accords in terms of rule 26.1(1) of the Ordinary Cause Rules 1993 in respect that the first-named and third-named defenders and respondents reside in the sheriff court district of Linlithgow; directs in terms of section 46 of the Children and Young Persons (Scotland) Act 1937, as amended, that no media report of these proceedings shall include any particulars calculated to lead to the identification of the second-named or third-named defenders and respondents or any picture of the second-named or third-named defenders and respondents.

NOTE

[1] This is an appeal against an interlocutor pronounced at a child welfare hearing in an action by a father against a mother for contact with the two children of their former marriage. The mother has lodged defences. Both children have instructed solicitors, have lodged minutes seeking to be sisted as parties and have also lodged defences. The action was raised in April 2004 and the elder child attained the age of 16 on 20 June 2004. No satisfactory reason has been given for raising and insisting in the action as far as he is concerned. I have allowed the first crave to be amended in order to remove his name and I have dismissed the action quoad him and found the pursuer liable to him in expenses.

[2] At the child welfare hearing on 14 June 2004 both parents and both children were represented. The Sheriff pronounced an interlocutor in these terms:

The Sheriff, having heard parties' procurators, allows the minutes for the children A and B, appoints the minuters to lodge answers within 21 days from this date, ad interim allows the pursuer contact with the child B by way of written correspondence of not more than one letter a week, said letter to be addressed to the said child's solicitor; thereafter on the defender's unopposed motion remits the cause to Linlithgow Sheriff Court under whose jurisdiction both children reside all in terms of rule 26.1(1) of the Ordinary Cause Rules 1993 as amended.

[3] The pursuer has now sought to appeal against that interlocutor without obtaining the leave of the Sheriff. The pursuer's note of appeal makes it clear that the appeal is against the allowance of contact by way of written correspondence only, that is, against that part of the interlocutor from the words 'ad interim' to the words 'the said child's solicitor'. The solicitors for the defender and the children have intimated that they oppose the appeal on the ground that it is incompetent. I have therefore heard parties on the question of the competency of the appeal.

[4] Section 27 of the Sheriff Courts (Scotland) Act 1907 specifies the interlocutors against which an appeal to the Sheriff Principal from the Sheriff is competent. It provides, so far as material, that an appeal to the Sheriff Principal is competent against all final judgments of the Sheriff; against interlocutors of specified kinds including interlocutors making an order ad factum praestandum; and against interlocutors against which the Sheriff grants leave to appeal. The pursuer's solicitor maintained that the interlocutor of 14 June 2004 was an interlocutor 'making an order ad factum praestandum' and pointed out that an appeal against such an interlocutor did not require leave. She founded on Thomson v Thomson 1977 SLT (Sh Ct) 11 and submitted that Black v Black 1991 SLT (Sh Ct) 5 had been wrongly decided. The solicitors for the defender and the children distinguished Thomson and argued that I should follow Black.

[5] In my opinion it is clear that the interlocutor of 14 June 2004 does not make an order ad factum praestandum. The purpose of such an order is to require the defender to perform an act other than the payment of money; and it must specify exactly what the defender has to do. This interlocutor does not require the defender to do anything. Thus the interlocutor is not one where an appeal is competent without the leave of the Sheriff. Since leave was not given, the appeal is incompetent and must be refused. I entirely agree with the views expressed by Sheriff Principal Nicholson QC in Black. The matter is incapable of further elaboration. The Sheriff's interlocutor accordingly remains in force. The case will now be remitted to Linlithgow Sheriff Court, as directed by the Sheriff, since the defender and the younger child reside within the jurisdiction of that court.

[6] Since this action has been brought unnecessarily in relation to the older child and since this appeal is misconceived I have found the pursuer liable in the expenses of the appeal and in the whole expenses of the second-named defender.