Breach of interdict authority overruled as appeal held competent

A five judge bench has overruled a decision that a sheriff's finding of and penalty for breach of interdict cannot be taken as an ordinary civil appeal but requires a petition to the nobile officium.

The court (Lord Justice Clerk Carloway, Lady Paton, Lord Menzies, Lady Smith and Lord Bracadale) reversed the 1993 decision of Forbes v Forbes, holding that although such proceedings were sometimes described as “quasi-criminal”, they were civil proceedings in terms of the Sheriff Courts (Scotland) Act 1907.

The question arose in an appeal by Paul Letley, a former partner in a surveyors' firm, J & E Shepherd, who had been expelled from the partnership in 2011 and then had interim interdict granted against him. He had been found to be in breach of interdict in respect of an incident that occurred about two weeks later, and fined £500.

An appeal to the sheriff principal was dismissed as incompetent, the sheriff principal holding he was bound by Forbes. On further appeal to the Court of Session, the appellant argued that although breach of interdict was a species of contempt of court, 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, and the proceedings fell within s 3(d) of the 1907 Act.

Lord Carloway, delivering the opinion of the court, said that prior to Forbes it was widely thought that an interlocutor in a breach of interdict action was subject to review in the same manner as in any other ordinary court process. Forbes held that such proceedings should be regarded as of a distinct kind and capable of being reviewed only in the Court of Session. However the decisions founded on did not support the reasoning, and the court agreed with the 1996 decision of Maciver v Maciver which had doubted the decision in Forbes.

“Forbes was wrongly decided and is hereby overruled”, Lord Carloway said. The 1907 Act did not materially change the previous law, and “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” – though the position in relation to contempt by third parties might be different.

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

The appeal was allowed and the case sent back to the sheriff principal.

Click here to view the opinion.