Full bench overrules authority on breach of interdict review after ruling ‘ordinary civil appeal is competent’

A five-judge bench in the Inner House of the Court of Session held that a previous case in which it had been held that a breach of interdict could not be taken as an ordinary civil appeal was “wrongly decided”.

The issue of the proper mode of review of a finding of breach of interdict arose in an appeal against an interlocutor of the Sheriff Principal of Tayside Central and Fife at Dundee.

A full bench was convened to consider the “apparent conflict” between the 1993 case of Forbes v Forbes, in which it was held that proceedings following upon breach of interdict were “not civil proceedings” as envisaged by section 3 of the Sheriff Courts (Scotland) Act 1907, and the 1996 case of Maciver vMaciver, which took the opposite view that section 3(d) was “wide enough to include proceedings which are taken by initial writ for breach of interdict”.

The Lord Justice Clerk, Lord Carloway, sitting with Lady Paton,Lord Menzies, Lady Smith and Lord Bracadale, heard that the appellant Paul Letley, a former partner in a surveyors’ firm J & E Shepherd, had been expelled from the partnership on 1 June 2011 and then had interim interdict granted against him.

In a subsequent summary application, the appellant was found to be in breach of the interim interdict in respect of an incident which occurred later that month and he was fined £500.

The appellant appealed to the sheriff principal who, by interlocutor dated 27 November 2014, dismissed the appeal as “incompetent”.

The sheriff principal considered that he was bound by Forbes, and also observed that a sheriff’s decision in relation to both a finding of contempt and a subsequent sentence were reviewable only by petition to the nobile officium.

There was, however, a question as to whether or not breach of interdict, as a particular species of contempt of court, should be treated differently.

In the appeal to the Court of Session, the appellant submitted that Forbesshould be overruled because it had been “incorrectly decided”, and Maciver should be preferred.

The breach proceedings, which were initiated by a summary application, fell within section 3(d) of the 1907 Act, and such an action was subject to review by the sheriff principal.

It was argued that it would be “irrational” and contrary to the terms of the 1907 Act for appeals against decisions of the sheriff in breach of interdict proceedings to be treated differently from appeals in other summary applications.

The judges held although such proceedings were “quasi-criminal” in nature and had been referred to as and “sui generis”, they were “civil proceedings” in terms of the 1907 Act.

Delivering the opinion of the court, the Lord Justice Clerk said: “Prior to Forbesv Forbes 1993 SC 271 it was widely thought that an interlocutor in a breach of interdict action was subject to review in the same manner as an interlocutor in any other ordinary court process.

“In Forbes an Extra Division held that such proceedings were not ‘civil proceedings’ as envisaged by section 3 of the Sheriff Courts (Scotland) Act 1907 because they had always been regarded as sui generis.

“In Maciver v Maciver 1996 SLT 733 the First Division doubted the ratio in Forbes. The fact that proceedings were described as quasi criminal did not prevent them from being civil proceedings in terms of the 1907 Act.

“This court agrees with the observations in Maciver. Forbes was wrongly decided and is hereby overruled.”

The court observed that the 1907 Act “did not materially change the pre-existing position” set out in Sheriff Courts (Scotland) Act 1876.

Lord Carloway explained: “Both before and after the 1907 Act there was ample authority for the proposition that a finding of contempt or a breach of interdict by a party to the cause was appealable in the normal way. The position in relation to contempt by third parties may be different.”

“Fortunately,” he added, “the whole matter will shortly be governed, so far as sheriff court civil contempts and sentences are concerned, by sections 47, 110 and 136 of the Courts Reform (Scotland) Act 2014.”

The appeal was allowed and the sheriff principal’s interlocutor was recalled as the appeal was considered “comptent”. The court remitted the case to the sheriff principal.