EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2013] CSIH 100
Lord Menzies Lady Clark of Calton Lord Wheatley	XA48/11   OPINION OF THE COURT   delivered by LORD MENZIES   in the appeal   by   JAMES DUFF Pursuer and Appellant;   against   PATRICK SHEARER   Defender and Respondent:   _______________

 

Act: Party

Alt: Kelly; Simpson & Marwick WS

 

8 November 2013

[1] This appeal involves an action of lawburrows raised by the pursuer and appellant in Dumfries Sheriff Court. This court dealt with the first two of six grounds of appeal, giving its opinion dated 18 May 2012. That left the remaining four grounds of appeal to be argued.

[2] Ground three is that the sheriff failed to consider that the defender has a duty in terms of the Police (Scotland) Act 1967, section 17, to investigate complaints of criminal conduct. The first point to be made with regard to this ground of appeal is that this action in lawburrows is not founded on a breach of section 17 of the 1967 Act. There are no averments in the initial writ which are founded on any such breach. Indeed, neither section 17 nor the 1967 Act as a whole is referred to at all in the pursuer's pleadings. If the pursuer does indeed seek to found on a breach of section 17 he must give fair notice of the nature of his claim in this regard. His pleadings are wholly lacking in specification in this regard and are irrelevant.

[3] The cases to which the appellant refers in his note of argument do not, in our opinion, advance his submissions at all on this point. In any event, we agree with the submissions for the respondent, as contained in his written note of argument, that even if there has been a breach of section 17 of the Police (Scotland) Act 1967, lawburrows is not the appropriate remedy for such a breach.

[4] The sheriff considered the principles underlying section 17 at paragraphs 127 to 129 of his opinion, and we can find no error in his treatment of this point.

[5] The appellant refers in his note of argument in support of this ground to an assignation in favour of Dumfries & Galloway Council on 23 March 2011. We do not understand the relevance of this assignation to the appellant's argument. It post-dates the raising of this action and it does not relate to any of the specific complaints made in article 5 of condescendence in the initial writ. We are not persuaded that there is any substance to ground of appeal three.

[6] Ground of appeal four is that the sheriff failed to consider that an action of lawburrows is based on criminal conduct. He further failed to consider that slander, defamation and all kinds of harm are taken into account. As is pointed out by the respondent in his note of argument, the two sentences in this ground of appeal appear to be contradictory, as defamation is a civil wrong and not criminal conduct. In any event we are not persuaded that there is any substance in the criticism which the appellant makes of the sheriff's disposal in this regard. The sheriff gave very full consideration to the appellant's argument that defamation may found an action of lawburrows and, indeed, the conclusion which he reached on this point was favourable to the appellant.

[7] Much of Mr Duff's note of argument in support of this ground of appeal appears to be an attempt to reargue the point that the sheriff erred in allowing this matter to proceed to debate rather than immediately proceeding to a proof hearing. That is a different ground from this ground of appeal. It was advanced before this court at an earlier stage of these proceedings and the court rejected it in its opinion dated 18 May 2012. It cannot be raised again now. For these reasons we do not consider there is any force in the fourth ground of appeal.

[8] The fifth ground of appeal was that the sheriff acted ultra vires by awarding expenses against the pursuer when he was aware that it was the defence conduct that triggered the action being raised. The question of expenses is quintessentially a matter for the discretion of the court. It is difficult to conceive of a situation in which an award of expenses would be ultra vires. There is in any event nothing before us to suggest that the sheriff erred in the exercise of his discretion in the award of expenses.

[9] The case of Bond v British Railways Board 1972 SC 219 was concerned with conduct by a party in the course of litigation, not with conduct which predated the action. In his submissions on this point the appellant appears to rely on the respondent's alleged conduct in the years leading up to the raising of this action. But this conduct is only the subject of averments in the initial writ. The court has held these averments to be irrelevant and not suitable to go to probation. They have never been proved. Without their being established in evidence it would have been quite wrong, and inappropriate, for the sheriff to have taken them into account when exercising his discretion to award expenses. There is accordingly no force in the fifth ground of appeal.

[10] The sixth ground was that the sheriff acted ultra vires by going into the merits of the case at this stage. He failed to follow the rules governing lawburrows. This is, we consider, another attempt to reargue the submission which was rejected by this court on 18 May 2012 and, as we have already indicated, we cannot go behind that decision. This ground of appeal must therefore be refused too.

[11] For all of the above reasons we refuse each of the four grounds of appeal which are before us today. The first two grounds having been refused by the court on 18 May 2012, there is nothing more in this appeal and accordingly we refuse it.