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Cite as: [2004] ScotSC 78

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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

A2016/04

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		ROBERT ANDERSON BENNETT
		Pursuer and Appellant
		against
		MRS MONA ISSA BENNETT
		Defender and Respondent

Aberdeen: 29 November 2004

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 2 November 2004.

Note

[1] This is an action between husband and wife. In terms of crave 1 the pursuer and appellant appears to be asking the court to grant an interdict and/or a non-harassment order against the defender and respondent. I say "appears" advisedly since the opening part of crave 1 reads as follows:

To interdict the defender, Mrs Mona Issa Bennett his wife's last known address was 189 Hilton Avenue, Aberdeen AB24 4LD and whose present address is unknown. The pursuer is seeking an interdict harassment order with power of arrest to prevent the mother from harassing. Mr Bennett. On the [23/12/2003] Mr Bennett reported to the Grampian Police, receiving calls from Mrs Bennett, which he deems to be harassing [Incident Report Log GP-20031223-168].

[2] The remainder of what purports to be crave 1, and also crave 2, are taken up with what are truly averments to the effect, in short, that the defender has been harassing the pursuer in the course of various telephone conversations. In terms of crave 3 the pursuer asks the court to find the defender liable in expenses. There are then two articles of condescendence numbered 4 and 5 (sic). These narrate the fact of the parties' marriage on 11 November 1996 and the birth of their one child on 5 August 1997. It is averred that the marriage lasted from 1996 until 19 September 2000 when the defender left the matrimonial home abducting their daughter without informing the pursuer. It is said that this was in breach of his rights of custody under section 2(1) of the Law Reform (Parent and Child) (Scotland) Act 1986. (Section 2 of this Act was repealed by the Children (Scotland) Act 1995 - see section 105(5) and schedule 5). There is nothing in either of these two articles of condescendence to explain why in fact it might be appropriate that this court should grant either an interdict or a non-harassment order against the defender. Nor is there any plea-in-law in the initial writ to explain why an interdict or a non-harassment order would be justified in point of law.

[3] Appended to the initial writ is what is described as an inventory of process which includes what purport to be transcripts of telephone conversations between the parties on 18 June 2003 and 8 September 2004. There are also copies of an Incident Information Form dated 11 September 2004 issued by Grampian Police and an Incident Report Log GP-20031223-168 apparently relating to events between 23 and 27 December 2003. Finally there is a sheet of paper which is headed "Calls Withheld" and which refers to various dates and times between 29 December 2003 and 26 January 2004.

[4] At this point it may be appropriate to mention that there are two other actions between these parties pending in this court. The first is an action of divorce (F33/03) by the pursuer against the defender in which he seeks a residence order to the effect that their child should live with him. This action was sisted by Sheriff Harris on 9 July 2003. The pursuer appealed against this decision to myself and on 20 January 2004 I refused his appeal. In doing so I issued detailed judgement to which reference may be made for a full narrative of events both in that action and in proceedings in the courts in England. A motion by the pursuer to recall the sist was refused by Sheriff Cowan on 3 September 2004, and the pursuer has appealed to myself against this decision. A date for the hearing of this appeal will be fixed shortly, intimation having just been received that the defender has been granted legal aid for the purposes of the appeal.

[5] In the second action (A1927/04), which was raised shortly before the present action, the pursuer sought (or so it appeared) an interdict against the defender to prohibit her removing the child from the United Kingdom. Decree in this action was refused by Sheriff Cusine on 2 November 2004 and I have today refused the pursuer's appeal against this decision. I would refer to my judgement in that case for an up-to-date narrative of events.

[6] In the present action Sheriff Buchanan granted warrant to cite the defender on 23 September 2004 by publication on the walls of court of a notice in the prescribed form. This was duly done, but no notice of intention to defend was lodged by or on behalf of the defender. On 25 October 2004 the pursuer lodged a minute for decree in terms of which he craved the court to grant decree "in terms of the crave of the initial writ. 1. An interdict harassment order with power of arrest to prevent the mother from harassing Mr Bennett Crave 1." The papers in the case were then put before Sheriff Buchanan who, in a manuscript note dated 29 October 2004 (which is with the papers in the case A1927/04), indicated that decree in absence should not be granted at that stage, that a hearing should be fixed and that this could be set down for any day before any sheriff. But it appears that Sheriff Cusine took a different view when he saw the papers and on 2 November 2004, without giving the pursuer an opportunity to be heard, he pronounced an interlocutor in the following terms:

The sheriff, having considered the minute for decree in absence for the pursuer, refuses same and thereafter dismisses the craves of the initial writ and finds no expenses due to or by either party.

It is this interlocutor which is the subject of the present appeal.

[7] The sheriff issued a note in support of his interlocutor in which he pointed out that in crave 1 only the first sentence was a crave, the remainder being narrative the proper place for which was in the articles of condescendence. He went on to point out that the first sentence in crave 1 failed to satisfy one of the basic requirements of a crave for interdict which was that the person whom it was sought to interdict should not be in any doubt about what was required of him or her. The sheriff went on to make various other observations about the terms of craves 1 and 2 which I do not think that I need to mention here. Finally, he referred to crave 3 and understandably pointed out that, having refused to grant decree in terms of either crave 1 or crave 2, it would not be equitable to grant decree for expenses.

[8] On 8 November 2004 the pursuer lodged a note of appeal to myself against the sheriff's decision. In short, the grounds of appeal were to the effect that the sheriff had misdirected himself with regard to the principles in accordance with which his discretion had to be exercised and that his decision was plainly wrong. The pursuer also asserted that the "sheriff could have asked to see Mr Bennett to clarify exactly what Mr Bennett was seeking, but he chose not to do so" and that the appeal should be regarded as a matter of urgency and a date for the hearing of the appeal set within a week.

[9] Since there were no other parties involved, I was able to arrange for the appeal to be heard on 24 November 2004. The appellant appeared on his own behalf and presented submissions in support of his appeal. Much of what he had to say was far from clear but, as I understood them, his submissions were to the following effect.

[10] The pursuer began by explaining that in the present action he wished the court to make a harassment (sic) order preventing the defender from harassing him. He said that there had been a long history of her telephoning him despite the fact that she was a woman who had apparently fled from him in fear of her life. He did not now know her address or telephone number. Having previously called him on a number of occasions, she had called him again at 7.18pm on a date in June 2003. She had just been pestering him to get on with his action of divorce and had been verbally abusing him. He had told her not to call his number again. Despite this she had called him at 7.30 am on 8 September 2004. She had been very aggressive and it was during this call that she had stated that she wanted to take their child to the Middle East. She had made many personal comments about him. The pursuer explained that he had let her speak on as the police had advised him to do so. He himself had said little during the conversation, and here he referred to the transcript of it which had been produced. She had alleged that he was making a misery of the lives of herself and her solicitors in Aberdeen. She had accused him of being an alcoholic and of being drunk on that particular morning. Eventually she had ended the call and had telephoned him again five minutes later. About fifteen minutes later she had again called after he had repeatedly told her not to do so.

[11] The pursuer then referred to section 4 of the Harassment Act 1997 (sic). This he said was headed "Behaviour and Conduct". He suggested that there had to be behaviour and conduct on at least two occasions that left the victim feeling harassed. He said that the defender here had called him three times that day despite having been told on the first time not to call him again. He referred also to section 41, either (a) or (b) (sic), of the Telecommunications Act 1984. He said that this Act had been used in a case in Ireland where it had been held that even just one telephone call that was particularly nasty could amount to threatening behaviour. In the present case there had also been a threat by the defender to remove their child to Middle East. In the circumstances it was submitted that a harassment order (sic) should be granted with a power of arrest attached to it. The police, so the defender explained, had advised him to seek this and it could then be sent to them. There had been many telephone calls made to him where the number of the caller had been withheld and the police had said that these could have been from the defender.

[12] The pursuer then referred to some incident in which it appeared that he had been arrested in London. The details of this were not at all clear, but he suggested that it was not fair that he had been arrested and held in custody in London for three hours on a non-molestation order at the instance of the defender. It would, he said, be more for his peace of mind if a harassment order (sic) were made against the defender with a power of arrest. He accepted that he had perhaps not formulated his claim properly before the sheriff. But he had now explained what he wanted. This (meaning presumably the defender's conduct) had been going on since before June 2003 and he now just wanted a quiet life.

[13] Section 8(5) of the Protection from Harassment Act 1997 provides:

(5) In an action of harassment the court may, without prejudice to any other remedies which it may grant -

award damages;

grant -

interdict or interim interdict;

if it is satisfied that it is appropriate for it to do so in order to protect the person from further harassment, an order, to be known as a "non-harassment order", requiring the defender to refrain from such conduct in relation to the pursuer as may be specified in the order for such period (which includes an indeterminate period) as may be so specified,

but a person may not be subjected to the same prohibitions in an interdict or interim interdict and a non-harassment order at the same time.

[14] As the sheriff pointed out in his note, a basic requirement of a crave for interdict is that the person whom it is sought to have interdicted should not be left in any doubt about what is required of him or her in terms of the interdict. Likewise, in terms of section 8(5) of the 1997 Act a non-harassment order must specify the conduct from which the defender is to be required to refrain. Moreover a person may not be subject to the same prohibitions at the same time in an interdict and a non-harassment order.

[15] The purpose of a crave in an initial writ is to spell out for the benefit both of the court and of the defender the precise terms of the order which is sought from the court. In the present case crave 1 conspicuously fails to do this. In particular, it does not specify precisely what conduct on the part of the defender is to be the subject of a prohibition by the court in terms of either an interdict or a non-harassment order. Nor is there any specification of the period during which a non-harassment order should subsist.

[16] The greater part of crave 1, and also crave 2, consist of a series of averments which, if they had been incorporated in the condescendence and had been supported by an appropriate plea-in-law, might have been apt to support a crave in proper form for a non-harassment order. But in the absence of such a crave I think that the sheriff was quite correct to refuse to grant decree in terms of craves 1 and 2. In a nutshell, they are not truly craves at all.

[17] It will be apparent from what I have already said that the pursuer did not advance any detailed submissions in support of the assertion in his grounds of appeal that the sheriff could have asked to see him to clarify exactly what he was seeking, but chose not to do so. But this is an important point which I think I should address. I have explained in paragraph [6] what I understand to have happened when the sheriff pronounced his interlocutor on 2 November. If it is correct that he decided that the pursuer ought not be given an opportunity to be heard at that stage, then in my respectful opinion the sheriff fell into error. I think that I would have said this even before the European Convention on Human Rights was incorporated into our law. Now that it has been, I think that article 6.1 makes it plain that the sheriff ought not to have refused to grant decree in absence in favour of the pursuer without first giving him an opportunity to be heard. Article 6.1, it will be recalled, provides, inter alia, that in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. On the other hand, if there was a violation by the sheriff of article 6.1, this has in my view been cured by the fact of the pursuer having been heard on appeal by myself in open court - see Reed and Murdoch: A Guide to Human Rights Law in Scotland at paragraphs 5.82/4.

[17] I did not understand the pursuer to suggest that the sheriff had erred in refusing to grant decree in terms of crave 3, and in my opinion he could scarcely have done otherwise in the circumstances.