Sheriff Appeal Court rules it cannot consider minute for breach of SAC-issued interdict in servitude dispute

About this case:

• Citation:
  [2024] SAC (Civ) 7
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal N A Ross

The action by pursuer and minuter Stuart Logan was unopposed after defender Andrew Irons withdrew his opposition to the motion prior to the hearing. However, the court requested submissions on whether the minute ought to have been lodged in the sheriff court process.

The minute was considered by Sheriff Principal Nigel Ross. Reid, advocate, appeared for the pursuer and minuter, and MacAuley, advocate, appeared for the defender and respondent.

No sheriff court order

In the original action, the pursuer sought declarator that the property owned by the defender was burdened with servitude rights of aqueduct and access, including the drainage to a septic tank serving the pursuer’s property, and a right of access to that tank for repair and maintenance. The sheriff heard debate and allowed a proof before answer on outstanding questions of fact. Both parties appealed this decision.

The Sheriff Appeal Court allowed the pursuer’s appeal, which submitted that the sheriff ought to have granted decree de plano on admissions made, found that the defender’s property was burdened with the relevant servitude rights, and pronounced interdict against the defender interfering with the pursuer’s right of access. Thereafter, the pursuer attempted to take access to the property to carry out urgent repairs to the tank, but the defender refused access.

A minute was lodged before the SAC by the pursuer asking the court to ordain the defender to appear personally and explain the breaches, and to order the unlocking of the access gate. It was accepted that the defender was in breach of the interdict, however submissions were requested on the competence of the minute.

For the pursuer it was submitted that the question of breach of an interdict of an appellate court was not the subject of any reported authority. However, as there was no sheriff court order that had been breached, proceedings had to be raised before the SAC. Procedure by minute was the equivalent of customary procedure by way of initial writ, as historically would allow causes to be initiated in the Inner House of the Court of Session.

No longer pending

In his decision, Sheriff Principal Ross observed: “In circumstances such as the present, the sheriff court and SAC ordinarily have concurrent jurisdiction. However, whether proceedings can be raised will also depend on the stage of procedure of the case. If the case is still in dependence before SAC, procedure may either be by way of fresh proceedings in the sheriff court, or by Chapter 16 minute procedure in the appeal proceedings. However, if the appeal has been finally disposed of, SAC is functus officio, and has no power to make further orders within the same process.”

Noting that no procedure existed for raising new proceedings before the SAC, he said of the case authority cited: “In my view Gray v McNair (1826) falls to be distinguished. It did not involve an award made on appeal, but by the Lord Ordinary, and accordingly is the obverse of the present case. The breach was raised by petition and complaint procedure, which Court of Session procedure provides. Most significantly, it involved a pending process, not a completed one.”

He added: “It appears settled that a court which has pronounced interdict has power to deal with alleged breach of that interdict, as part of its inherent power to maintain its own dignity. Where the process is pending, the alleged breach can be brought before the court by minute procedure, or equivalent. Where the process is no longer pending and the matter has been the subject of a final interlocutor, the matter cannot be raised within the same process. Fresh proceedings are required.”

Sheriff Principal Ross concluded: “There is no express procedure which regulates breach proceedings, or which would permit proceedings by minute. The only remedy is by raising new proceedings in the same sheriff court, being the sheriff court which has the power to deal with the breach. That requires a separate summary application, initiated by initial writ. While SAC does have jurisdiction to deal with the breach of its own order, there is no available equivalent procedure to allow separate proceedings to be raised directly.”

The motion was therefore refused as incompetent on the basis that it was made in a process in which the Sheriff Appeal Court was functus officio.