SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

B86/06

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

in the cause

DUNDEE CAR SERVICE CENTRE LIMITED

Pursuers and Respondents

against

BERNARD SCANLAN

First Defender and Appellant

and

DUNDEE CAR VALET CENTRE LIMITED

Second Defenders and Respondents

__________________

Act: Mr McMichael, Solicitor, Dundee

Alt: Mr Kydd, Solicitor, Dundee

DUNDEE, 27 October 2006. The Sheriff Principal, having resumed consideration of the cause, dismisses the appeal as incompetent; reserves meantime the question of the expenses of the appeal and appoints parties to be heard thereon on Wednesday 1 November 2006 at 10am within the Sheriff Court House, Bell Street, Dundee.

NOTE:

[1] This is an appeal by the first defender against the sheriff's interlocutor of 14 August 2006 in terms of which he found the first defender in breach of interim interdict and fined him £5,000.

[2] The pursuers and respondents have challenged the competency of the appeal. Under reference to a decision of the Extra Division in Forbes v Forbes 1994 SLT 16, it was submitted that, in appeals of this nature, the only competent forum was the Court of Session. In that case the court expressly adopted as correct the statement made by Lord Justice General Emslie in Cordiner, Petitioner 1973 JC 16 as follows:

"In future when it is desired to submit to appeal or review a decision on a sentence pronounced by the sheriff in cases of contempt or alleged contempt arising in the course or out of proceedings in the sheriff court, the only competent forum will be either this court [meaning the High Court of Justiciary] or the Court of Session according to whether the matter arose out of criminal or civil proceedings."

[3] In responding to this submission the solicitor for the appellant referred to MacIver v MacIver 1996 SCLR 225. In that case the First Division of the Inner House differed from the Extra Division in Forbes as to the nature of the proceedings, stating the view that proceedings for breach of interdict were "civil proceedings" within the meaning of section 3(d) of the Sheriff Courts (Scotland) Act 1907 and that accordingly the provisions of that Act applied to such proceedings. It was submitted therefore that the appeal provisions of section 27 of the 1907 Act ought to apply and that the appeal was therefore competent.

[4] Attention was drawn to the commentary of Sheriff A L Stewart QC in the report of this case in which he expressed the view that the inevitable inference to be drawn from the court's opinion in MacIver "must surely be that an appeal lies from the sheriff to the sheriff principal against any "final judgment" in an action for breach of interdict" and that accordingly an appeal to the sheriff principal against a sentence for contempt of court in respect of breach of interdict ought to be competent. The solicitor for the appellant adopted this contention.

[5] Reference was also made to the five Judge decision in Rodenhurst v Chief Constable, Grampian Police 1992 SLT 104 from which, it was submitted, the conclusion could be drawn that where the sheriff makes any decision in his judicial capacity that decision is subject to review by the sheriff principal. Although this authority was not referred to in either Forbes or MacIver it was submitted that I would be entitled to rely on this case as a reason for not following Forbes.

[6] In my opinion there is much force in the suggestion that the inevitable inference to be drawn from the court's approach in MacIver is that any final judgment of the sheriff in proceedings for breach of interdict ought to be appealable to the sheriff principal in light of the provisions of section 27 of the 1907 Act. It seems clear however that such a conclusion would require reconsideration of the decision in Forbes by a larger court. In MacIver the court found it unnecessary to remit to a court of five judges since the question in that case arose at a different stage in the proceedings to that in Forbes. They indicated however that Forbes may require reconsideration by a larger court in due course while making it clear that the observations in that case should be regarded as applicable only to proceedings for contempt of court, including proceedings for breach of interdict, in which a final judgment has been pronounced and it is desired to bring the sentence of the sheriff under review.

[7] That is precisely the nature of the interlocutor which is the subject of the present appeal. In my opinion I remain bound by the decision in Forbes and the court's view in MacIver of the proper scope of that decision simply serves to reinforce that opinion. Insofar as concerns the submission made under reference to Rodenhurst, in my view the issue in that case was somewhat different and turned on the question whether the sheriff's function in relation to the application before him was administrative rather than judicial. Having concluded that the sheriff was acting in his judicial capacity it seems to have been accepted as a natural consequence that an appeal would be to the sheriff principal in terms of section 27 and there was apparently no issue raised in that regard.