Scottish Sheriff Court Decisions

Edinburgh 14^th December 2005 Sheriff Principal E F Bowen QC

Act: Foster

Alt: Kidd

The Sheriff Principal, having heard parties' procurators, in respect that any motion to state a case is out of time refuses the motion for leave to appeal the case to the Court of Session.

Sheriff Principal of Lothian and Borders

NOTE to interlocutor of 14 December 2005

(1) On 26 October 2005 I sustained an appeal by the Reporter brought under the provisions of section 51(11) of the Children (Scotland) Act 1995 and remitted this matter to the Sheriff with a direction to dismiss the appeal as incompetent. Paragraph (b) of subsection 11 makes provision for an appeal to the Court of Session with leave of the Sheriff Principal, such appeal being by way of stated case. Subsection (13) provides: "An application to the Sheriff or as the case may be the Sheriff Principal to state a case for the purposes of an appeal under subsection 11(a) or (b) above shall be made within a period of 28 days beginning with the date of the decision appealed against".

(2) On 3 November 2005 the appellant's solicitors lodged with the court a document headed "Motion for Appellant" which contained an application for "leave to appeal to be allowed although late (one day)" and for leave to appeal the decision of 26 October 2005 to the Court of Session. The first part of the motion proceeded on the erroneous assumption that the procedure was governed by the Ordinary Cause Rules 1993 and in particular Rule 31.2 which requires applications for leave to appeal against an interlocutor of a Sheriff to be made within seven days of the interlocutor against which it is sought to appeal.

(3) I was not available throughout November due to attendance at a Fatal Accident Inquiry in the Borders Courts. In consequence the appellant's motion, which was opposed by the Reporter, did not call before me until today.

(4) The difficulty which has arisen in this case is one which is predicted in paragraph 54.32 of Sheriff Kearney's book, Childrens Hearings and the Sheriff Court (2^nd Edition). That paragraph states as follows: "Neither the Children (Scotland) Act 1995 nor the Act of Sederunt (Child Care and Maintenance) Rules 1997 prescribe a time limit for applying for leave. It is tentatively suggested that leave may be sought at any time within the 28 days allowed for the lodgement of the application for an appeal. It is suggested that care must be taken to obtain leave well within this period. Leave can only be granted by the Sheriff Principal personally, whereas once obtained the appeal can be lodged within the 28 days. Difficulty might arise if obtaining leave were left till near the expiry of this period and it was then discovered that the Sheriff Principal was for some reason unavailable".

(5) When the motion called today the solicitor advocate on behalf of the Reporter drew my attention to the provisions of section 51(13) and to the paragraph above quoted from Kearney. He also drew attention to the fact that by virtue of Court of Session Rule 41.28, the procedure for appeals to the Court of Session under section 51 of the 1995 Act is governed by Part II of Chapter 41 of those rules. Rule of Court 41.5(1) provides that an application for a case for the opinion of the Court on any question shall be made by minute setting out the question on which the case is applied for. In the unreported case of SC (4 March 2002) Sheriff Principal Sir Stephen Young QC took the view that if a document which did not meet the requirements of rule 41.5(1) had not been lodged within the period specified in section 51(13) of the 1995 Act no appeal was competently taken. It was submitted that any application for a stated case would now be too late.

(6) This submission anticipated the argument advanced on behalf of the appellant - which I consider to be the only argument open to him - to the effect that the appellant's motion for leave to appeal fell to be regarded as an application to commence the appeal process and in consequence should be treated as the "application" for the purposes of section 51(13). Sympathetic as I am to the appellant's position I do not think that it is open to me to entertain this submission. It would be difficult on any view to treat the appellant's motion as an application for a stated case but it quite plainly does not comply with the provisions of Court of Session Rule 41.5. As Sheriff Principal Young pointed out in the case referred to it is important that the requirement of rule 41.5 should be complied with as it brings into play rule 41.6(2) which enables the other party to propose an additional question of law, a step which must be taken within a time limit. In these circumstances I do not consider that it is open to me to treat the appellant's motion as an application for a stated case and in consequence the appeal is now out of time.

(7) It might be suggested that the absence of a period within which a motion for leave to appeal must be made is something of a lacuna in the statutory provisions. Whether that is so it appears to me that the difficulty which has arisen in this case, and which was identified by Sheriff Kearney, could be overcome by a party who wishes to appeal a decision of the Sheriff Principal to the Court of Session under the provisions of section 51.11(b) lodging a minute which both seeks to obtain leave to appeal and contains an application for a stated case. Taking such a course would avoid the possibility of time running out before leave to appeal was obtained, and would have the further advantage that in determining the issue of whether to grant leave to appeal the court would have before it a precise identification of the issue on which the opinion of the Court of Session was sought. Consideration will be given to promulgating a practice note in this Sheriffdom to that effect.