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Cite as: [2007] ScotSC 37

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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT INVERNESS

A726/03

JUDGEMENT

SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC

in the cause

STUART JAMES BRENNAND LATHAM and MRS SHIRLEY MAY LATHAM

Pursuers and Respondents

against

STUART MARK HUNT

Defender and Appellant

Act: Mr Lachlan McNeill, advocate, instructed by The Mackenzie Law Practice, Inverness

Alt: Party

Inverness: 17^th July 2007

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutors of the sheriff dated 14 September and 11 October 2006 subject to the following amendments of the findings in fact made by the sheriff in the first of these interlocutors:

(1) In the third sentence of finding in fact 7 insert after the words "...... of the plan was" the words "subsequently replaced by the defender with a larger rock that was";

(2) Delete the last sentence of finding in fact 7;

(3) In the fourth last sentence of finding in fact 18 (which begins "All vehicles owned .....") insert after the word "pursuers" the words "other than the Land Rover"; and

(4) In the third last sentence of finding in fact 18 (which begins "On 12 January 2005 .....") delete the words "grounded his saloon" and substitute "was present as a passenger when the first pursuer grounded his Rover 600";

finds the defender and appellant liable to the pursuers and respondents in the expenses of the appeal and allows an account thereof to be given in and remits the same when lodged to the auditor of court to tax and to report; certifies the appeal as suitable for the employment by the pursuers and respondents of junior counsel; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

[1] In this case the pursuers and respondents are the owners of the property known as Mid Balchraggan House, Drumnadrochit, Inverness-shire. The defender and appellant and his wife are the owners of a neighbouring property, namely Mid Balchraggan Cottage, Drumnadrochit, Inverness-shire. The pursuers as owners of their property have a servitude right of pedestrian and vehicular access to their property along a short length of road which passes over part of the property owned by the defender and his wife. There is a wooden gate at the bottom of this access road and a metal gate at the top. Both gates are kept shut and are opened only to allow vehicles to pass through. The road is on a steep gradient and is 63.4 metres in length.

[2 ] In the autumn of 2003 the defender placed various rocks at either side of the road, the effect of which was to reduce the average width of the road to 2.2 metres, and subsequently to 2.1 metres. In these circumstances it was difficult, although not impossible, for a motor car to be driven between the rocks on the road, and particularly so at night. On one occasion during the evening of 22 November 2003, following an incident in which the defender swore at the pursuers and challenged the first pursuer to fight him "man to man", the police were called. On arrival a police officer tried unsuccessfully to drive between the rocks at the bottom end of the road and hit his vehicle against them.

[3 ] On 28 November 2003 the pursuers' agents wrote to the defender calling upon him to remove the rocks from the road within 48 hours. He did not do so. On 23 December 2003 the sheriff granted an interim interdict against the defender after an undertaking had been given by the pursuers' agents at the bar that they would not drive along the road at a speed in excess of 5 mph.

[4 ] During the weekend of 6/7 March 2004 the defender installed three speed humps along the road. These caused the underside of the pursuers' Rover motor car to scrape along them when being driven over them. The same occurred to a car owned by a relative of the pursuers. Prior to 12 March 2004 the defender told the pursuers that he intended to instal more speed humps along the road. By a facsimile message dated 12 March 2004 the pursuers' agents warned the defender that such further works would be regarded by the pursuers as a breach of the interim interdict.

[5 ] During the following Easter holidays the defender installed two more speed humps at a lower point on the road. These caused the driver and passengers in vehicles to be jolted and so caused discomfort as did the speed humps which had earlier been installed.

[6 ] Following a proof which extended over ten days and included a site visit, the sheriff by interlocutor dated 14 September 2006 made a number of findings in fact of which the foregoing is a summary. In light of these he found in fact and in law that by placing rocks on the road the defender had unlawfully diminished the use or convenience of the pursuers' servitude right of access over the road and that the pursuers were entitled to an interdict to prevent same. Likewise the sheriff found that the continued presence of speed humps built by the defender along the road had unlawfully diminished the use or convenience of the pursuers' servitude right of access over the road and that the pursuers were entitled to an interdict to prevent same. Following a further hearing on 11 October 2006 the sheriff by interlocutor of that date interdicted the defender or other persons authorised or instructed by him from impeding, restricting or hindering or attempting to impede, restrict or hinder the pursuers or any other persons requiring pedestrian or vehicular access to or egress from the pursuers' property, namely Mid Balchraggan House, over the access road across the property owned by the defender and his wife by placing stones on the road or by any other means. It is this interlocutor and the earlier interlocutor dated 14 September 2006 which are the subject of the present appeal.

[7 ] In the note of appeal thirty four grounds of appeal were stated by the defender. These speak for themselves and it is unnecessary to set them out in full here. I confess that when I first saw them I had difficulty in understanding upon what basis it was going to be maintained that the sheriff had erred in granting interdict against the defender. With one exception, all of these grounds of appeal begin with a statement of a premise or, in many cases, several premises which is followed by a request for clarification of one aspect or another of the sheriff's judgement. A typical example of these is ground 19 which reads:

Given that the second pursuer gave evidence to the effect that she and the first pursuer removed the rocks from the road on 24 December 2003 by throwing the rocks onto the grass verge, and further given both pursuers had stated in averments that they had to arrange to have the rocks removed from the roadway, and further given the second pursuer when cross-examined on this apparent contradiction in her evidence offered the apparent incredible explanation that she had to arrange with her solicitor to have the rocks removed from the road, we would we wish clarification as to and on what basis the Magistrate (sic) came to his stated conclusion that both the pursuers were credible and reliable witnesses.

The single exception is ground of appeal 10 where no premise is stated and there is simply a request for clarification "as to what bearing the Magistrate (sic) placed on the date the Mott MacDonald report was prepared, 14 January 2005, relative to the said proof date of 17 January 2005".

[8 ] Counsel for the pursuers drew attention to rule 31.4(3) of the Ordinary Cause Rules 1993 which provides that the grounds of appeal in a note of appeal shall consist of brief specific numbered propositions stating the grounds on which it is proposed to submit that the appeal should be allowed or as the case may be. Counsel suggested that in this case it might be said that there was no note of appeal at all since the so-called grounds of appeal stated by the defender did not constitute propositions stating the grounds on which it was proposed to submit that the appeal should be allowed. But counsel very fairly did not maintain that the appeal was incompetent for this reason since he accepted that it would be wrong for him to say, having heard the defender's submissions, that he did not know then what were the propositions upon the basis of which the defender maintained that the appeal should be allowed. Counsel helpfully proceeded to identify seven such propositions to which I added an eighth. When he came to respond briefly to the submissions of counsel, the defender appeared to accept that these eight propositions fairly reflected his opening submissions which I at least had found often hard to follow. Rather than attempt to rehearse these submissions in full I think therefore that it would be more helpful simply to deal with each of these eight propositions in turn.

[9 ] The first proposition was that the sheriff had erred in law in proceeding on the basis that it was for the defender to prove that, before the installation of the speed humps, the pursuers or visitors to their property had been driving along the access road at excessive speeds after due regard was had for the safety of pedestrians on the road. In this context the defender referred in particular to one sentence in a paragraph on page 13 of the sheriff's judgement. In order to put the sentence in context I shall set out the whole of the paragraph in question. It reads:

But I am also of the opinion that the other speed humps are material restrictions which have injured the pursuers' enjoyment of the right of access. As I have found, all of the speed humps cause jolting to vehicles passing over them. They might, however, become immaterial if it was proved that they were necessary to ensure the safety of the defender and his family (including their dog) in their use of Mid Balchraggan Cottage and its garden ground. In my view, that would require proof that before the installation of the speed humps the pursuers or the visitors to their property were driving along the road at excessive speed after due regard is taken of the safety of pedestrians. That leads me to the last question posed.

It was the penultimate sentence in this paragraph to which the defender took particular exception and, as I understood him, his point here in short was that in a case such as this the burden of proof was on the pursuers as the proprietors of the dominant tenement with the result that the sheriff had erred in law in proposing that it had been for the defender to prove that before the installation of the speed humps the pursuers or visitors to their property had been driving along the road at excessive speeds after due regard was taken of the safety of pedestrians. Reference was made here by the defender to an opinion dated 6 April 2004 by Professor Roderick Paisley of the University of Aberdeen which had been prepared for the defender's former solicitors, the Stair Memorial Encyclopaedia Volume 18 paragraph 469 and Simpson v Head (Lanark Sheriff Court, 11 May 1990, reported in Unreported Property Cases from the Sheriff Courts edited by Professor Paisley and Sheriff Cusine at pages 237 - 243).

[10 ] In response counsel for the pursuers pointed out that the evidential burden in this context had clearly been assumed by the defender. In his answers he had offered to prove, and his entire defence to the action had been based upon the proposition, that the placing by him of the stones on the road and the subsequent installation by him of the speed humps had been required on account of the pursuers and their visitors having been driving along the access road at excessive speeds. In any event, said counsel, it was entirely in accordance with the law that it was for the defender to prove that the pursuers and their visitors had been driving at excessive speeds along the access road since it was for the servient proprietor to demonstrate that what he had done in the way of creating an interference with the rights of the dominant proprietor had been necessary for the proper protection and enjoyment of his own (servient) property. Counsel referred here to Bell's Principles (10th edition) at paragraphs 982, 984 and 988, Alvis v Hamilton 1991 SLT 64 and Lord Donington v Mair 1894 21R 829. Counsel drew attention to what the sheriff had said at page 11 of his judgement where he wrote:

In my opinion, there are three questions arising from these authorities, which require to be answered in the instant case.

The first question is whether something has occurred which restricts the enjoyment of the servitude right belonging to the pursuers. While there was much evidence about the behaviour of the parties prior to the building of the speed humps (and I shall return to that), the question posed here by counsel for the pursuers is whether the speed humps restrict the pursuers' enjoyment of the access right.

If the answer to that question is in the affirmative, the next question is whether a restriction of this nature is nevertheless so minute and immaterial that in no true sense has it injured the pursuers' enjoyment of the right of access.

And the third question is whether the restriction was required by the defender to allow him and his spouse the beneficial use and protection of their own property. (Although I accept that there may be circumstances, but not in the instant case, in which restriction is so minute and immaterial that the motive of the servient proprietor may not matter.)

Counsel submitted that the sheriff had here given a correct summation of the proper approach to this case and he submitted that in light of this the sentence on page 13 of the sheriff's judgement to which the defender had taken exception was a correct statement of the law.

[11 ] In my opinion the submissions here for the pursuers are to be preferred. As counsel rightly pointed out, it is a recurring theme in the defender's answers 3 and 4 that the pursuers and visitors to their home had regularly driven along the access road at excessive speeds and that it was this that had necessitated the placing by the defender of the rocks and subsequently the speed humps on the road. Thus at the very end of answer 3 there is an averment which reads: "All the aforementioned steps taken by the defender in respect of the installation of the speed bumps were required as a measured response to the pursuers' actings in driving at excessive speeds over the roadway". Likewise in answer 4 there are, inter alia, averments which read: "Accordingly the defender placed rocks on the verges of the access road at four different points. These rocks formed a traffic calming measure aimed at restricting the width of the road to force the pursuers and their visitors to reduce the speeds at which they travelled over the access road".

[12 ] It is of course correct that the initial burden of proving that there has been an interference by the servient proprietor with a servitude right of access over his property rests upon the dominant proprietor. But, if such interference has been shown to have taken place, then it is up to the servient proprietor to demonstrate nonetheless that what he has done is required for the proper enjoyment of his property and is an immaterial interference with the rights of the dominant proprietor. Thus in Lord Donington v Mair it was said by Lord Justice Clerk MacDonald at page 832:

It is quite true that a servitude road or a mere public right of way over the property of a citizen is not in the same position as a highway. In the case of a highway, the right to prevent any erection on the highway is absolute; whereas in the case of a servitude or public right of way it is a question of circumstances whether the right of those who possess the servitude or of the public is to have it removed. But still anything which covers up and prevents the unobstructed use of the ground, subject to the right for its exercise, must be justified by the owner. He may do so by shewing that what he is doing is required for the proper working of his estate, as by dividing fields or the like, and that it is an immaterial interference with the rights of the dominant tenement in the one case or of the public in the other. The case of stiles on a footway is an illustration of this. They are obstructions, but may be put up as not interfering materially with the right, and as being requisite for the reasonably working of the owner's estate. This is well settled by decision.

Applying these observations to the present case, I think the sheriff was quite correct, having found that the installation of the speed humps were material restrictions which had injured the pursuers' enjoyment of the right of access, to say that it was for the defender to prove that before the installation of the speed humps the pursuers and their visitors had been driving along the road at excessive speeds so as to necessitate the installation of the speed humps.

[13 ] The defender's second proposition was that the sheriff had erred in law in holding certain of the speed humps to be objectionable in the absence of evidence of their having caused, or being likely to cause, damage to vehicles being driven over them. In other words, the proposition appeared to be that, for a speed hump to be objectionable in this context, it had to have caused, or to be likely to cause, damage to vehicles. The defender referred here to Servitudes and Rights of Way by Sheriff Cusine and Professor Paisley at paragraph 12.94 where the authors note that various types of activities on the part of a servient proprietor have been held to constitute obstructions to a servitude of access including "the installation on a road of road humps of such size and shape as would be likely to cause damage to vehicles". In a footnote (87) the authors refer here to Simpson v Head and state: "This case leaves it open to the servient proprietor to install road humps of lesser size which are not likely to cause such damage". In the present case, said the defender, the sheriff had found that two of the speed humps were not likely to damage a car with the result that it was difficult to see how these could be considered to be a material obstruction. The sheriff had therefore erred in law in requiring these two humps to be removed from the access road. Specifically, the sheriff had erred in stating in the first sentence of the passage from his judgement quoted in paragraph [9] above that the other speed humps (meaning those on which vehicles had not grounded) were material restrictions which had injured the pursuers' enjoyment of the right of access.

[14 ] In response, counsel for the pursuers submitted that the proposition that, for it to be found to objectionable in this context, a speed hump must have caused, or be likely to cause, damage was simply wrong. To the extent that the proposition was founded on Simpson v Head, the sheriff's decision in that case was not authoritative and in any event he had said nothing in his judgement to suggest that it was only if it caused, or was likely to cause, damage that a speed hump should be held to be objectionable. Counsel drew attention to a passage in the Comment on this case at page 242 of Unreported Property Cases from the Sheriff Courts where the editors write: "Where traffic is passing along a servitude of way at excessive speed, the decision leaves it open to a servient proprietor to install speed-humps of a more generally acceptable design and height which will cause cars to slow down but which will not damage those cars". Counsel pointed out that it was not suggested in this passage that damage, or the likelihood of damage, was necessary before a speed hump could be held to be objectionable. No one maintained, said counsel, that a servient proprietor was absolutely forbidden from installing speed humps on an access road. In light of the balancing exercise desiderated by Lord Justice Clerk MacDonald in Lord Donington v Mair the question was whether they were necessary for the enjoyment by the servient proprietor of his property and at the same time constituted only a minimal interference with the rights of the dominant proprietor.

[15 ] In my opinion it is not the law that, before it can be required to be removed from a road over which a servitude right of vehicular access exists, a speed hump must have caused, or be likely to cause, damage to vehicles passing over it. The true question here is whether the presence of the speed hump on the road constitutes an interference with the enjoyment by the dominant proprietor of his right of vehicular access which is more than merely immaterial. As the sheriff points out at page 11 of his judgement, this question and the question whether the speed hump is required by the servient proprietor for the beneficial use and enjoyment of his own property may overlap to some degree depending upon the circumstances of each case. In the present case the sheriff found in fact (see finding in fact 18) that the two speed humps which were last installed by the defender caused the driver and passengers in vehicles to be jolted and so caused discomfort. In addition the sheriff found that one of the original three speed humps also caused discomfort. In my opinion this was enough to entitle him to find in fact and in law as he did (see finding in fact and law 3) that the continued presence of these speed humps, in addition to those which had actually caused damage to passing vehicles, had unlawfully diminished the use or convenience of the pursuers' servitude right of access over the road.

[16 ] The defender's third proposition was based upon a passage at page 12 of the sheriff's judgement where he was considering the question whether or not it had been proved that vehicles had grounded on some of the speed humps installed by the defender. The sheriff compared the evidence of the defender and his expert, Mr Shackleton, on the one hand and the evidence of the pursuers and their expert, Mr Girvan, on the other. After observing that the pursuers were quite adamant that their vehicles had indeed grounded on some of the speed humps the sheriff wrote:

That evidence was supported by Mr Girvan's evidence of his own experience of grounding when he carried out his inspection. He plainly had no axe to grind and I therefore found his evidence to be compelling.

[17 ] The defender submitted that, in saying that he had found Mr Girvan's evidence to be compelling, the sheriff was referring to the evidence of Mr Girvan generally and not merely in relation to the issue of grounding. He proceeded to address me at some length on a variety of different aspects of Mr Girvan's evidence which are referred to in grounds of appeal 5 to 13 and in short submitted that no reasonable court could have come to the conclusion that Mr Girvan's evidence was compelling. He referred here to The Law of Evidence in Scotland by David Field at page 16 and Walkers on Evidence (1st Edn) at page 402.

[18 ] In response, counsel for the pursuers acknowledged with reference to ground of appeal 7 that the sheriff had been mistaken in finding, as he had in finding in fact 18, that on 12 January 2005 Mr Girvan had grounded his saloon motor car on one particular speed hump. Counsel explained that the evidence of both the first pursuer and Mr Girvan had been to the effect that the latter had driven his car to the car park at Drumnadrochit where the first pursuer had collected him and had driven him in his (the first pursuer's) own car back to Mid Balchraggan House. Mr Girvan had said in his evidence that he had been in the front passenger seat of the first pursuer's car and had experienced the grounding of this car when it had been driven by the first pursuer over the final speed hump at the top of the access road. Counsel proposed therefore, and I did not understand the defender to dispute, that the sentence in question in finding in fact 18 should be amended to reflect the fact that Mr Girvan had been present as a passenger when the first pursuer had grounded his Rover 600 motor car on this speed hump.

[19 ] Referring to the sheriff's comment that he had found the evidence of Mr Girvan to be compelling, counsel pointed out that all the sheriff was saying in the passage on page 12 of the sheriff's judgement to which the defender had referred was that he had found the evidence of Mr Girvan to be compelling on the question whether or not a saloon car had grounded on the last speed hump before the metal gate into the pursuers' property. Counsel drew attention here to page 12B/E of the notes of the evidence of Mr Girvan in cross-examination (on 9 March 2006) where he had confirmed evidence which he had given earlier to the effect that he had been in the first pursuer's car and had heard a grinding noise as it had passed over the final speed hump before the metal gate. Counsel reminded me that the sheriff had seen and heard Mr Girvan give evidence and he submitted that the sheriff had been quite entitled to find Mr Girvan's evidence on the issue of grounding to be compelling given that he had had no axe to grind between the parties.

[20 ] In my opinion the submissions here for the pursuers are to be preferred. It is I think perfectly clear that all that the sheriff was saying in the passage in question was that he had found the evidence of Mr Girvan on the issue of grounding to be compelling, and moreover he gave an entirely satisfactory reason for reaching this conclusion, namely that Mr Girvan had had no axe to grind between the parties. Contrary to what was maintained by the defender, the sheriff did not say in this passage that he found Mr Girvan's evidence in general to be compelling. So it is unnecessary to consider the criticisms that were made by the defender of other aspects of Mr Girvan's evidence. (For the sake of completeness I should record in this context that the defender also submitted that no reasonable court could have concluded, as the sheriff had done, that the pursuers' Rover 600 saloon cars had grounded on two of the speed humps in particular. To this I would merely say that it was for the sheriff to determine this issue having heard all the evidence and weighed up the competing considerations as he did at pages 12 and 13 of his judgment, and nothing that was said by the defender gave me any reason to think that I ought to interfere with the sheriff's findings on this issue).

[21 ] The defender's fourth proposition related to the sheriff's finding in fact 12 coupled with the third sentence of his finding in fact 5. These two findings in fact are as follows:

5. There is a wooden gate at the bottom of the access road forming the right hand fork on the plan ("the road"). There is also a metal gate at the top of the road. Both gates are kept shut and are opened only to allow vehicles to pass through. The road is on a steep gradient. It is 63.4 metres in length.

12. Due to the gradient of the road, its relatively short length and the existence of a closed gate at each end of it, it is unlikely that a vehicle being driven along it would travel at an excessive speed, such as to be unsafe for pedestrians or animals present within the subjects owned by the defender and his spouse.

[22 ] The defender indicated here that his expert witness, Mr Shackleton, had said in his report that it was possible for vehicles to be driven at 20 mph up the access road and at 30 mph down the road. He drew attention to a passage at page 43E of the notes of the cross-examination of the second pursuer where she said: "Well, we had taken out an undertaking to open the gate and stay by the gate when there is somebody doing the gate by the car". The defender said that in this passage the second pursuer was referring to an undertaking that the pursuers had given to the court on 17 June 2004 in a separate action to the effect that they would close the gate when a car had passed through it. This, said the defender, showed that there were issues about gates not being closed after a car had passed through them, all of which meant that the sheriff had not been entitled to find that both gates were kept shut and opened only to allow vehicles to pass through. This in turn undermined the sheriff's conclusion in finding in fact 12 that it was unlikely that a vehicle being driven along the access road would travel at an excessive speed. The defender referred here also to page 4E of the notes of the cross-examination (on 10 March 2006) of Mr Girvan where he accepted that in the absence of a speed hump at the top (metal) gate a speed of 30 mph would be possible if the gate was open. The defender submitted in light of these considerations that the third sentence in finding in fact 5 and finding in fact 12 were wrong.

[23 ] It is perhaps worth recording at this point that the only notes of the evidence which were obtained by the defender for the purposes of the appeal were the notes of the cross-examinations of the first and second pursuers and their expert Mr Girvan. In the absence of the record of the remainder of the evidence it is very difficult to see how I could disturb the sheriff's findings in fact except to the limited extent that counsel for the pursuers conceded that they required to be corrected. Although I was not referred to any notes of the evidence on the point, I understood counsel to accept that on certain occasions the wooden gate at the bottom of the access road would be left open by one of the pursuers if he or she knew that the other was coming up the hill to their property. If this be correct, I do not think that it undermines the truth of the sheriff's finding in finding in fact 5 that both gates are kept shut and are opened only to allow vehicles to pass through. As for finding in fact 12, counsel submitted that this was not undermined by the fact that on some occasions the wooden gate at the bottom of the hill would be left open when someone was coming up the hill and he pointed out here, rightly in my opinion, that all that the sheriff had said was that it was unlikely that a vehicle being driven along the road would travel at an excessive speed. In this context counsel properly drew attention too to the sheriff's findings to the effect that the pursuers had not driven at an excessive speed along the road - see findings in fact 6 and 11. In all the circumstances I am not persuaded that the sheriff erred in making his findings in fact 5 and 12.

[24 ] The defender's fifth proposition was that the sheriff had failed to take into account what he (the defender) said was the important evidence of Mr Shackleton to the effect that speeds of up to 20 mph uphill, and 30 mph downhill, were possible along the access road. Here the defender drew attention too to the evidence of Mr Girvan to which I have already referred in paragraph [22] above. The defender submitted that by any reasonable standards this evidence of the speeds that were possible along the road would justify the installation of some form of traffic calming measures along the road.

[25 ] I have already drawn attention to the sheriff's findings about the speeds at which the pursuers in fact drove along the road. As for the suggestion that the sheriff had not taken into account the evidence of Mr Shackleton as to speeds possible on the road, the answer in my opinion is to be found in a passage in the sheriff's judgement to which counsel for the pursuers referred me at pages 14 - 15 which reads:

I acknowledge that the pursuers or their visitors might well have driven, even if only on a rare occasion, at speeds in excess of 5 mph, but I accept that the pursuers' intention (and the probable intention of their visitors) was always to drive slowly and safely along the road. Accordingly, any speed occasionally in excess of that limit does not detract from the general position that the pursuers and their visitors have driven slowly and carefully and at more or less 5 mph. Doubtless, the defender would say that it takes only one journey at excessive speed to cause an accident, but it was plain from the experts' evidence that a driver determined to travel at speed along the road might be slowed down to some extent by the speed humps but would still be able to drive well in excess of the speed limit the defender desired or indeed whatever speed a reasonable person would consider appropriate.

[26 ] At the outset of the note appended to his interlocutor at page 6 of his judgement the sheriff recorded that he had found the pursuers to be both credible and reliable witnesses who had given their evidence in a moderate and reasonable fashion, that he could not say the same thing about the defender and that, on matters where there was a plain disagreement between him and the pursuers as to what had occurred, he had found it very easy indeed to accept the pursuers' evidence and to reject the defender's. The defender himself was evidently upset by this assessment and a recurring point in his submissions was the proposition that no reasonable court could have concluded that the pursuers were credible and reliable witnesses.

[27 ] In response to this counsel for the pursuers submitted, rightly in my opinion, that it was very difficult to see any basis upon which an appeal court could be invited to conclude that the sheriff had been wrong to regard the pursuers as credible and reliable witnesses without being taken to their evidence as a whole and considering it in detail rather than looking, as the defender had done, at a few isolated passages in the notes of evidence of their respective cross-examinations. Moreover, the defender's proposition flew in the face of the tract of authority to the effect broadly that an appeal court should be very slow to interfere with the assessment by a court of first instance of the credibility and reliability of a witness who has given evidence before that court. A familiar illustration of this is to be found in the judgements delivered in the House of Lords in Clarke v Edinburgh and District Tramways Co 1919 SC (HL) 35 to which counsel for the pursuers referred me. Thus at pages 36/37 Lord Shaw of Dunfermline stated:

When a Judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgement is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not. I can of course quite understand a Court of appeal that says that it will not interfere in a case in which the Judge has announced as part of his judgement that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a Court of justice. In Courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate Court? In my opinion, the duty of an appellate Court in those circumstances is for each Judge of it to put to himself, as I now do in this case, the question, Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with these privileges was plainly wrong, then it appears to me to be my duty to defer to his judgement.

[28] The defender's seventh proposition was advanced under reference to paragraph 34 in the grounds of appeal which reads:

Given the Magistrate was also the Magistrate at a hearing on 11 January 2006 where a criminal conviction against the defender was discussed, and further given the Magistrate was also the Magistrate at a hearing on 21 April 2006 where an ASBO being pursued by Highland Council against the defender and his wife was discussed, we would wish clarification as to what bearing the Magistrate placed on his involvement in the hearing on 11 January 2006 and 21 April 2006 involving the defender and his wife and his hearing of the proof Latham v Hunt.

In this context the defender posed the question whether the sheriff had had a prejudicial view of him and, as I understood him, he suggested that this question should be answered in the affirmative essentially because he had been right on all points of law and fact in contention in the case and yet the sheriff had proceeded to grant interdict against him. In developing this submission the defender rehearsed many of the points which he had already made, for example that the sheriff had erred in law on the issue of onus of proof, that no reasonable court could have concluded that the pursuers were credible and reliable witnesses, that the sheriff had been wrong to disbelieve the evidence of the defender himself, that the sheriff had been wrong to find it proved that the pursuers' cars had grounded on certain of the speed humps and that he had been wrong too to attach equal value to the evidence of Mr Girvan as compared with that of the defender's expert Mr Shackleton.

[29 ] Beyond reading out paragraph 34 of the grounds of appeal the defender did not elaborate upon what had happened at either of the hearings on 11 January and 21 April 2006. But counsel for the pursuers helpfully explained what had happened on these occasions. On the first of these the sheriff had been presiding at the first hearing of a summary cause action in which a firm of solicitors in Inverness had sued the defender for payment of their fees for representing him in an earlier criminal prosecution. A defence had been noted but the sheriff had indicated that he would not be prepared to hear the proof in the case because he was already involved in the present case, the proof in which had begun in November 2005. The outcome of the first hearing had been that the cause had been continued to 8 February 2006. The crucial point, said counsel, was that the sheriff at the first hearing had not made any decision about the credibility or otherwise of the defender nor had he had to decide whether or not the defender had been rightly convicted in the earlier criminal case. Moreover, the incident which had been the subject of that earlier case had played no part in the evidence in the present case.

[30 ] Turning to the events of 21 April 2006, counsel explained that the Highland Council had raised an action against the defender for an anti-social behaviour order. After an interim order had been granted against the defender an issue had arisen whether he had been in breach of this. It was arranged that the proof in that case would be dealt with by a part-time sheriff. In the event she had not been available on 21 April 2006 and the case had been called that day before the sheriff who had presided in the present case for the sole purpose of continuing the proof in the breach proceedings to a date when the part-time sheriff would be available. So once again the sheriff had not been required to form a view on any matter which might be in issue in the present case.

[31 ] Counsel referred here to Hauschildt v Demark 1989 12 EHRR 266 and submitted that the test of whether there might be any cause for concern about a judge's impartiality was whether at an earlier stage in other proceedings the judge had had to make even a preliminary determination on a matter which he or she would also have to determine in the later case in which his or her impartiality was called into question. If this factor was not present then there would be no reasonable basis for concern about the judge's impartiality. Reference was made here to article 6 of the European Convention on Human Rights. The question in the present case, said counsel, was whether a reasonably informed observer with a reasonable understanding of what had happened would have cause to be concerned about the impartiality of the sheriff in this case. Counsel submitted that the test here was an objective one and that no reasonably informed observer would have been concerned about the sheriff's impartiality. Counsel pointed out that the defender had been represented at the proof by a solicitor who had not raised any issue over the sheriff's impartiality or even asked the sheriff to consider whether he could properly continue to hear the proof in this case. This, said counsel, was understandable given that in neither of the other two cases had the sheriff had to determine anything of relevance to the present case. If it was being suggested by the defender that there had been actual prejudice on the part of the sheriff, this was untenable since there was no evidence whatsoever of such prejudice.

[32] In my opinion the submissions of counsel for the pursuers on this matter are to be preferred. It simply will not do for the defender to suggest that the sheriff may have been prejudiced against him essentially for no other reason than that he found in favour of the pursuers and granted interdict against the defender. Nor do I think that a reasonably informed observer with a proper understanding of what had taken place before the sheriff on 11 January and again on 21 April 2006 would have any cause to be concerned about the impartiality of the sheriff in the present case in relation to the issues of fact and law which he had to decide.

[33 ] Finally, in the course of his submissions the defender drew attention to certain errors in the sheriff's findings in fact which were conceded by counsel for the pursuers. I have already referred to one of these in paragraph [18] above, and have taken the opportunity in my own interlocutor of making the necessary corrections to the sheriff's findings in fact. But it has to be said that the defender did not spell out clearly what the significance of these errors was in the context of the sheriff's judgement as a whole. Counsel for the pursuers understandably submitted that these amendments made no difference to the thrust of the sheriff's judgement nor afford any basis for overturning it.

[34 ] On this point I agree with counsel. In my opinion the amendments to the sheriff's findings in fact are immaterial and do not undermine the sheriff's findings in fact and law upon the basis of which he granted interdict against the defender.

[35 ] Counsel submitted that I should find the pursuers entitled to the expenses of the appeal and that I should certify this as suitable for the employment by the pursuers of counsel. I did not understand the defender to oppose the pursuers' motion for the expenses of the appeal, and he explicitly conceded the motion for the sanction of the employment of counsel. For my own part I am quite satisfied that it was appropriate that the pursuers should have employed junior counsel for the purposes of the appeal.