Chief Constable removed from action to determine ownership of allegedly stolen scaffolding by Sheriff Appeal Court

About this case:

• Citation:
  [2024] SAC (Civ) 39
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Pyle

The Chief Constable was originally called as a third party in an action raised by Forefront Scaffolding Hire & Sales Ltd against three defenders for the recovery of scaffolding they alleged was stolen from them. She argued that it was incompetent to add her to the action, principally aimed at determining ownership, as she had no competing claim to the goods.

The appeal was heard by Sheriff Principal Derek Pyle. The third party and appellant was represented by Niven, solicitor, and the pursuers and respondents by MacDougall, advocate. None of the three defenders appeared in respect of the appeal.

Fundamentally incompetent

In June 2021, the pursuers raised a claim in Hamilton Sheriff Court seeking the recovery of scaffolding from three defenders, all with the same registered office. They alleged that the defenders agreed to store the scaffolding on their behalf, but when they asked for it back, they were refused. The pursuers sought declarator that they were the owners of the goods as well as delivery or, failing that, payment of £85,000.

After the record was closed in January 2022 but before debate, the sheriff sisted the cause on the first and third defenders’ opposed motion to allow an action of multiplepoinding to be raised. The defenders averred that the police had told them a complaint had been registered with them that some of the scaffolding was in fact owned by another company, Step-Up Ltd, and that they were under specific orders from the police not to release the goods to the pursuers.

At a hearing on 31 August 2022, third party procedure was commenced against the Chief Constable on the pursuers’ unopposed motion. In 2023, the sheriff repelled the third party’s pleas-in-law, holding that her submissions on relevancy and the competency of adding her to the claim had no substance.

It was submitted for the third party that the action against her was fundamentally incompetent. The action was principally one of declarator over ownership of moveable property over which she had no claim, and in any event the sheriff was plainly wrong to hold that such an action was a competent way of determining ownership of moveable property.

Additional grounds of appeal included that the sheriff had erred in repelling the third party’s submission of all parties not called, given that Step-Up Ltd had not been added to the action. Had he considered whether any other party’s appearance was necessary to determine ownership of the property, the sheriff would have concluded that Step-Up, which had expressly told the third party it owned the property, ought to have been a defender.

Far removed from circumstances

In the court’s decision, Sheriff Principal Pyle began by observing: “At its highest, the pursuers’ case against the third party is that police officers gave an order to the first defenders (or other defenders) not to release the goods to the pursuers. That is in the context of a criminal investigation where, founding upon the averments of the first defenders, upon which for the esto case the pursuers also have to rely, there are other claimants to the title of the goods, on the basis in part of alleged fraudulent activity which might be criminal in nature.”

He continued: “It cannot be said that in those circumstances the third party has turned a blind eye to the details of any contract between the pursuers and the first defenders (or other defenders). In any event, the circumstances in which the delict has been developed in the authorities are in the context of private contractual rights, which is far removed from the alleged circumstances of this case where police officers are exercising their public duty to investigate crime and, perhaps, to preserve evidence.”

Turning briefly to the other grounds of appeal, the Sheriff Principal said: “In my opinion the other grounds of appeal have no merit. Where an action is competent, there is no rule of law that a party must pursue his remedy by other means even if such means might be better suited to the circumstances. In any event, there is force in the pursuers’ position that this is a straightforward claim for delivery of goods belonging to them. Nor do I accept that all parties have not been called.”

He concluded: “The circumstances in this appeal are similar to those in Lang v Ure (1994) in that it is the first defenders, not the pursuers, who aver that a third party has title to the goods and, adapting the reasoning of Lord Milligan, ‘where, to the best of the [pursuers’] belief, [they have] no sound right of action against any proposed additional defender’. While I have no difficulty with the expression of principle by Lord Ross in Wilson v Independent Broadcasting Authority (1979), the circumstances in that case are quite different from the present one.”

The appeal was therefore allowed, and the third party removed from the claim. In respect of further procedure, Sheriff Principal Pyle noted: “The appeal before this court relates only to the third party. It is therefore inappropriate for this court to seek to resolve the many problems which arise for further procedure as between the pursuers and the first defenders.”