Sheriff Appeal Court refuses appeal against sheriff’s servitude determination, allows cross appeal on expenses

About this case:

• Citation:
  [2023] SAC (Civ) 24
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Andrew Cubie

Graham and Angela Ferguson had sought interdict against respondents Barbara Gregors and Morag and Alastair Fowler in order to prevent vehicular access across their property. They were successful against the second and third respondents, while a counterclaim made by Mrs Gregors seeking declarator that she had a servitude right of pedestrian and vehicular access over the Fergusons’ property was upheld.

The appeal was heard by Sheriff Principal Sean Murphy, along with Appeal Sheriffs Andrew Cubie and Thomas McCartney. G Dunlop, advocate, appeared for the appellants, G Middleton, advocate, for the first respondent, and F McShane, advocate, for the second respondent. The third respondent appeared as a party litigant.

Assessment of weight

The appellants owned a strip of land 0.5 metres in width which was the only route available to access the property of the first respondent, at which she had lived since the early 1980s. From 1993 she began to sell off various plots of her land, which also required access across the Fergusons’ property. The Fowlers bought such a plot and later obtained planning permission to change its use to form a private gypsy or traveller pitch with one static caravan and one touring caravan.

From the time of the Fowlers’ occupation of the plot in 2016 there was an increase in traffic along the access road attributable to their change of use of their property. The sheriff found that the burden on the servitude had increased following the Fowlers’ occupation of their plot and granted interdict against them but upheld the first respondent’s counterclaim.

For the purposes of expenses, the sheriff chose to treat all the respondents as one party. In respect of the proof diets the sheriff found the respondents liable for 60 per cent of the Fergusons’ expenses and the Fergusons liable for 40 per cent of the respondents’ expenses of the proof diet. The appellants challenged the sheriff’s decision on the counterclaim, while the respondents challenged the disposal on expenses.

Counsel for the appellants submitted that sheriff had erred in accepting affidavits provided by Mrs Gregors, who did not attend court, as proven. There was no assessment as to the weight to be attached to the affidavits, which the sheriff appeared to have accepted in their entirety without reservation, resulting in Mrs Gregors succeeding in her counterclaim without lodging a document or producing a witness in person. In relation to the expenses decision, it was submitted for the first respondent that it was not reasonable for her to bear any expenses, her position having been vindicated.

No competing narrative

Appeal Sheriff Cubie, delivering the opinion of the court, said of the sheriff’s treatment of the affidavits: “Much was made of the sheriff purportedly binding himself to follow the affidavits but despite the Fergusons’ attempt to elevate the sheriff’s words into some improper reliance on the affidavits, all that the sheriff said was that he ‘must have regard to’ the affidavits. He did so, and satisfied himself that they were admissible. He then had regard to the affidavits. He accepted them having considered them in the context of other evidence. There is no error in that approach, particularly standing the concession made and not withdrawn.”

He continued: “In considering the evidence as a whole, we conclude that there was ample material which would have allowed the sheriff to accept Mrs Gregors’ affidavits, the most compelling being Mr Ferguson’s admission in evidence that there no other way to enter her premises. That admission allowed the sheriff to find on a balance of probabilities that there was a servitude established through positive prescription. There was no competing narrative and we are not persuaded that the absence of cross-examination fatally undermined the weight which the sheriff was able to afford the affidavits.”

Appeal Sheriff Cubie concluded on this matter: “If it was possible and competent to tease out a separate and discrete servitude right of access for vehicular commercial traffic, there was no evidence from the material before the sheriff or before us which would have allowed, far less bound, the sheriff to reach the conclusion that such a discrete servitude right of access had been extinguished. We consider that, even if such a remedy was open to them, the Fergusons have failed to establish by evidence that the commercial vehicular aspect had been extinguished.”

Turning to the expenses appeal, he added: “The sheriff sought to effectively aggregate or spread the success/failure amongst the defenders. He was no doubt influenced by the fact that Mrs Gregors and the Fowlers had the same representation [at first instance] but such a determination was unfair to Mrs Gregors in particular, as it had the effect of depriving her of the fruits of her success in the litigation, and there is no warrant for that.”

The Fergusons’ appeal was therefore refused, with Mrs Gregors’ cross appeal on expenses succeeding. The Sheriff Appeal Court therefore found the remaining respondents to now be liable for 80 per cent of the pursuers’ expenses.