Sheriff was wrong to refuse to grant interdict in dispute between farm neighbours who fell out in ‘spectacular style

The Sheriff Appeal Court ruled that the sheriff erred in law in holding that the appellants’ claim failed because there was “no individual crave” for each pursuer.

Sheriff Principal Ian Abercrombie QC, sitting with Sheriff Nigel Morrison QC and Sheriff Principal Brian Lockhart, heard that the pursuers and appellants Stephen and Carol Green had fallen out with their neighbours John, Thomas and Iain Chalmers in “spectacular style”.

The sheriff found that the appellants, who live at Gowdiehill Farmhouse in Bankfoot, were on the receiving end of a course of conduct by their neighbours, who farmed the adjacent land, which was intended to make life as “uncomfortable as possible”.

Over a four-year period between July 2010 and June 2014 the respondents were found to have poisoned the pursuers’ dog with rat poison; sealed the lid of the pursuers’ septic tank with silicone; left a bogey filled with cattle dung close to the pursuers’ boundary for 18 days, causing an unpleasant smell which prevented the them from sitting in their garden or opening windows; and regularly burning rubbish, causing unpleasant acrid smoke and smells to permeate the pursuers’ home.

They were also found to have sprayed weed killer on the pursuers’ boundary hedge and killed other plants; parked grain dryers, combine harvesters and a cattle trailer close to the pursers’ boundary for no apparent reason; carried out significantly noisy operations using a grain dryer operated by a tractor engine into the early hours of the morning or throughout the night, and on one occasion drove a tractor at speed towards Mrs Green when she was weeding a hedge.

The sheriff found that these activities amounted to harassment of the second pursuer in contravention of section 8 of the Protection from Harassment Act 1997 and also awarded her damages of £3000 in terms of section 8(5) of the Act for the “loss, injury and distress” she had suffered.

However, he refused to grant a non-harassment order as craved third, or to grant interdict to protect either or both pursuers from further harassment by the defenders as craved fourth, as he decided that he could not competently order interdict in terms of the statute because the legislation “provides a remedy to an individual and the order sought requires to be in the name of that individual”.

He said there “requires to be separate orders sought in the name of each pursuer” as opposed to what are in effect joint orders, because if a wrongdoer is subsequently alleged to have acted in breach of the interdict “by acting in the manner prohibited against one of the parties, but not the other, then such a joint order has not been breached”.

But the appellants challenged the decision to refuse to grant interdict, arguing that the sheriff was wrong to hold that the pursuers’ claim failed because there was no individual crave for each pursuer, and the appeal sheriffs agreed.

Delivering the opinion of the court, Sheriff Principal Abercrombie said: “Adopting a straightforward, purposive interpretation, Parliament’s intention is to protect individuals from harassment by others. The purpose of the statute is not to seek to prevent harassment in cases only where individuals are affected and not where two or more individuals experience it.

“The Long Title of the 1997 Act is ‘An Act to make provision for protecting persons from harassment and similar conduct’. Section 8 itself commences with the words; ‘Every individual has a right to be free from harassment…’ The words ‘every individual’ in this sense means ‘everyone’ or ‘all individuals’…We consider that the sheriff adopted an overly prescriptive meaning of the word ‘individual’ which set him off on the wrong track.”

The sheriff justified his view that individual craves for each pursuer were required on the basis that, if only one pursuer was the subject of future harassment, he or she would have no remedy against the defenders for breach of interdict, but the court observed that the averments “clearly specify that both pursuers were subject to the course of conduct in question” and the sheriff accepted the evidence and made findings in fact that “both pursuers were at the receiving end of conduct which amounted to harassment”.

He added: “The simple reality of the situation is that both pursuers were living together as husband and wife in the same house. In short, the pursuers perilled their case on proving that a course of conduct amounting to harassment was being pursued against them both.

“That case was established in evidence and the sheriff made findings in fact to that effect. In such circumstances we see no requirement to have separate averments, separate craves and separate pleas in law relating to each pursuer.”

The appellants also argued that the sheriff placed “too much weight” on their installation of CCTV cameras in February 2012 as a significant deterrent, as the respondents’ course of conduct continued after the installation of the cameras.

The court considered that there was a “real risk” of further incidents, adding that the CCTV would not by itself be a reason for not granting interdict.

The appellants also submitted that the sheriff was wrong to hold that the wording in crave 2 was “too imprecise, vague and uncertain”, but the respondents claimed it did not have the requisite degree of certainty.

However, the appeal sheriffs held that the wording was “sufficiently clear to give the respondents sufficient notice of what they can and cannot do”.

The court further held that the sheriff was mistaken in his view that the incidents complained of were “one-off” or historical and therefore unlikely to be repeated.

Sheriff Principal Abercrombie said: “The question is not whether individual incidents or repeated incidents of the same kind, were likely to be repeated – but whether the course of conduct (amounting to harassment of the appellants) comprising several incidents, was likely to continue. Likewise, just because the respondents may not have repeated a specific act for several years, it does not follow that their harassment of the appellants has ceased.

“As is readily apparent from the findings in fact there appears to be no end to the defenders’ ingenuity in finding ways to harass the pursuers…The respondents made life as uncomfortable as possible for the appellants over a considerable period of time. We consider that there is considerable force in the appellants’ submission that given the scale, persistence, variety and length of time over which the conduct in question occurred, that such conduct is likely to continue.”