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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Abbey National Plc v Arthur & Anor [2001] ScotCS 263 (19 November 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/263.html Cite as: [2001] ScotCS 263

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[1] This is an appeal in a summary application which sought to draw the court's attention to breaches of interim interdict on the part of the present defenders and appellants. After protracted procedure in the Sheriff Court on 10 May 2000 the sheriff found that on two occasions (namely 21 June 1999 and 24 August 1999) the defenders had, as matter of fact, been in breach of the said interim interdict by being present in certain heritable property known as Norden, 2 Hillhead Road, Newtonhill, Stonehaven, Kincardineshire. The defenders undertook to remove themselves from said property by 14 July 2000 but, not having done so as at that date, they were then sentenced to 14 days imprisonment for contempt.

[2] The grounds of appeal raise a number of matters but the one which leaps to the eye is that subsequent to the events complained of in the present process the defenders and now appellants were charged and convicted of an offence of criminal trespass on the said property between 22 December 2000 and 11 January 2001. For that offence they were sentenced to 14 days imprisonment and it appears that in imposing that sentence the sheriff had regard, inter alia, to the fact that the offence had taken place in open breach of a decree of the court. In these circumstances one of the grounds of appeal by the defenders and appellants was that if they were punished afresh for any breach of interdict they would suffer "double jeopardy". Since the dates of the alleged transgressions are different this may not strictly be accurate but, however that may be, we are satisfied that in the present altered circumstances it would be inappropriate for the court now to impose a sentence of imprisonment in respect of the earlier breaches of interdict to which the present proceedings relate. We shall accordingly allow the appeal now to the extent of quashing the sentence of imprisonment pronounced on 14 July 2000. We would add that, in so far as the third amended ground of appeal seeks to review the merits of the criminal conviction, that is something which plainly this court cannot do and we accordingly refuse to entertain the appeal in that respect.

[3] Unfortunately, that is not an end of the matter because in their first two grounds of appeal the defenders and appellants seeks to challenge the validity of the earlier procedure in the Sheriff Court, including the validity of the interlocutor of 10 May to which we have referred. In particular they point to the fact that in overturning the sheriff's earlier dismissal of this application the sheriff principal, on 31 January 2000, gave no reason for his decision. In that respect the situation is complicated by the fact that the appellants apparently thought they were disentitled to oppose the appeal having failed to pay the court dues when the proceedings were before the sheriff.

[4] Clearly in respect of these remaining matters the pursuers do have an interest and in all the circumstances, therefore, what we will do is to continue the appeal on the first and second grounds of appeal in order that intimation can be given to the pursuers' solicitors that these grounds will be argued when the case next calls. We understand that up to now the pursuers' solicitors may not have appreciated that the pursuers did have an interest in the present appeal and, indeed, that appears to have been what was intimated to the court when the case called previously in the By Order Roll. For these reasons the appeal will be continued to a date to be fixed.