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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mccann v. Mcgurran [2002] ScotCS 67 (14th March, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/67.html Cite as: [2002] ScotCS 67

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Mccann v. Mcgurran [2002] ScotCS 67 (14th March, 2002)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Cameron of Lochbroom Lord Kingarth Lord Caplan	XA10/02 OPINION OF THE COURT delivered by LORD CAPLAN in APPEAL From the Sheriffdom of Glasgow & Strathclyde at Glasgow in the cause ELIZABETH McCANN or McGURRAN known as McCANN Pursuer and Appellant; against THOMAS McGURRAN Defender and Respondent: _______

 

 

Act: Wade; Macbeth Currie (for Hughes Dowdall, Glasgow)

Alt: Kelly; Drummond Miller, W.S.

14 March 2002

1. This appeal arises in an action of harassment as defined in section 8(2) of the Protection from Harassment Act 1997 (hereinafter referred to as "the Act"). The parties were formerly married to each other but were divorced at Glasgow sheriff Court on 10 May 2001. In the divorce action the pursuer had made certain allegations of violent and abusive conduct by the defender towards her and at the time of the divorce the sheriff had awarded the pursuer permanent interdict against repetition of such conduct. This permanent interdict still remains in place.
2. In November 2001, at Glasgow sheriff Court, the appellant raised the present action of harassment. The initial writ sets out two separate craves. The first is a crave for interdict (including interim interdict). The pursuer seeks to have the defender interdicted from various acts of violent and verbal molestation and from certain conduct relating thereto. The second crave is to grant a non-harassment order in terms of section 8(5)(b)(ii) of the Act. The protection the defender seeks by this order is effectively set out in the same terms as are set out in relation to the interdict which is sought. The two craves are not stated to be alternative craves but the appellant's counsel acknowledged that she could not hope to obtain permanent orders under both craves. However, this pleading point is not material at this stage of the action. The defender gave Notice of Intention to Defend and the court appointed the defender to lodge defences by 14 December 2001. No defences have to date been lodged. What did in fact happen in the case is that the sheriff on 7 November 2001 refused a motion on behalf of the pursuer for interim interdict but appointed the parties to be heard on the crave for a non-harassment order. The sheriff having heard parties on the matter, the pursuer's solicitor having moved for a grant of the order, and the defender's solicitor having challenged the competency of the application for such an order, the sheriff by interlocutor dated 6 December 2001 refused the pursuer's application for a non-harassment order on the ground of competency. It is this interlocutor which the appellant now appeals.
3. The debate on competency really turned on the construction to be given to section 8(5)(b)(ii) of the Act. The sub-section is in the following terms:

"(5) In an action of harassment the court may without prejudice to any other remedies which it may grant...

(a) award damages;

(b) grant...

(i) interdict or interim interdict;

(ii) if it is satisfied that it is appropriate for it to do so in order to

protect the person from further harassment, an order, to be known as a 'non-harassment order', requiring the defender to refrain from such conduct in relation to the pursuer as may be specified in the order for such period (which includes an indeterminate period) as may be so specified,

but a person may not be subjected to the same prohibitions in an interdict or interim interdict and a non-harassment order at the same time."

4. In his Note to his said interlocutor the sheriff expressed the view that because the defender was already subject to the prohibitions contained in the said permanent interdict flowing from the divorce action, to pronounce a non-harassment order would fly in the face of the restriction in section 8(5)(b)(ii) to the effect that such an order cannot be pronounced if the defender in the case is already subjected to an interdict.
5. In addressing us Counsel for the appellant indicated that her appeal really contained two branches. Her first submission was that the sheriff had erred by misconstruing the relevant provisions of section 8(5) of the Act. The restriction on the pronouncement of an order when an interdict stood, only related to interdicts which were within the framework of the action of harassment. The second branch of the appeal was contingent on the action for the non-harassment order being competent. If, as was submitted, the order sought would be competent, then the sheriff erred in declining to grant an order. The harassment legislation is summary procedure to give protection to a defender in situations which may involve urgency. The judge only required to be satisfied that immediate protection was required and formal proof of this in appropriate circumstances would not be necessary. In the light of the sheriff's refusal to grant a non-harassment order this Court, if it thought it advisable, could grant it now. The sheriff had thought it proper to grant a permanent interdict on what essentially were the same facts and if it were necessary the pursuer had affidavits available.
6. We can get the second limb of the appellant's case out of the way at once. Whatever the answer to the competency point there are no circumstances in this case where we would consider it proper to grant the non-harassment order at this stage. The defender has given notice of intention to defend and has still to lodge defences. He is represented and resists the non-harassment order. The issues relevant to the merits of the case cannot be identified until they have been focused by the defences and the defender has had an opportunity to be heard on them. Indeed section 8(4) of the Act provides for certain specific defences to an action of harassment and this implies that the court must provide an opportunity to state any such defence if it is available. It was accepted that there is no provision for an interim non-harassment order. On the other hand the interdict procedure is available to deal where appropriate with interim problems, and indeed in the present case the respondent already appears to have such protection.
7. In relation to the first branch of the appeal Counsel for the appellant accepted that the issue was narrowly focused and she acknowledged that the validity of her appeal had to depend on the correctness of her submission that the proviso attached to section 8(5) of the Act did not apply to interdicts extraneous to the action of harassment but only to those which may be pronounced within the framework of such action. She also accepted, for the practical purposes of the appeal, that it could be said that the divorce action interdict would protect against effectively the same conduct as was the foundation of the present action. She gave us examples to illustrate how the respondent's construction of the Act would give rise to situations which were fundamentally unfair and likely to render the Act difficult to apply. She made reference to Alexandra v. Murphy 2000 SLT 42, Robertson v. Vannet 1999 S.L.T. 1081, Heenan v. Dillon 1999 S.L.T. 32, and Furber v. Furber 1999 S.L.T. 26 but it was accepted by both Counsel that these cases were somewhat peripheral to our deliberations. Counsel subjected the precise provisions of the Act to detailed scrutiny. She also took pains to draw the distinction between interdict and non-harassment proceedings.
8. Counsel for the respondents understandably founded on the terms of the sheriff's judgment and Note which he claimed were justified. The purpose of the proviso to section 8(5) was to differentiate clearly between the remedy of interdict and that of non-harassment. Difficulty was likely to occur, and there could be double jeopardy, if a position could arise which resulted in an interdict co-existing with a non-harassment order covering the same conduct. In creating remedies for non-harassment the legislature were anxious to avoid that happening and thus it was intelligible that the restriction in the proviso should cover all interdicts. If a party wanted increased protection by way of a non-harassment order then he should take steps to have any existing interdict varied or removed. Our procedures offered ample opportunity to do this. We were again given a detailed analysis of the wording of the Act which it was submitted supported the sheriff's opinion.
9. Having considered the wording of section 8(5)(b)(ii) of the Act we have concluded that on construing its terms, even in isolation, the restriction on the power to pronounce a non-harassment order, if the defender is subjected to an interdict aimed at the same conduct, is aimed alone at interdict orders pronounced within the framework of the action of harassment. The subsection opens with, and is controlled by the words "In an action of harassment...". The remedies set out in section 8(5) are the remedies available in Scotland to the court in respect of the newly created statutory creature, the action of harassment. The particular remedy of the non-harassment order is prescribed by subsection (5)(ii). The parameters of such an order are set out in the subsection. The remedy we are considering is set out in one single sentence. In that single sentence we have first the definition of the remedy and then a proviso in respect of the conjunction of non-harassment and interdict. However, it has to be noted that in terms of subsection 5(b)(i) the court is granted power in the action of harassment to grant interdict or interim interdict. Thus in the same statutory subsection the court is empowered to consider the grant of both interdict and a non-harassment order. The court may then have to make a choice if the orders would be concurrent in effect and it is perfectly intelligible that, if there is to be a restriction in that choice, it should be by way of a proviso such as appears at the end of paragraph (b)(ii) which creates the problem by introducing the non-harassment order. The clear implication is that in exercising power under section 8(5) the court can not grant both remedies but must, if circumstances require it, choose between the two. Of course the collision between interdict and the order is only prohibited if they prohibited the same conduct "at the same time". This is perfectly consistent with the situation where in the same action, in applying remedies, the different remedies may be thought appropriate at different times (or perhaps even in respect of different conduct). Thus, since the non-harassment order is not an interim provision, there can be occasions where the court thinks it appropriate to pronounce at the early stage of the action an interdict but then, if the harassment is proved at a later stage of the case, wants to confer on the pursuer the more powerful protection of a non-harassment order. It may well have been considered that the more serious and burdensome non-harassment order should not be pronounced if the less grave remedy of interdict would fit what eventually is established about the circumstances. Thus the court is given an option in selecting the relevant remedies empowered by the legislation we have been considering. However, the option could only be exercised effectively within the powers the court has relating to the particular action before it. If the judge could not pronounce a non-harassment order if there had been an earlier interdict which still operated, possibly one pronounced in another court, then he could not give effect to the opportunity given to him in subsection 5 to consider the whole range of prescribed remedies. In particular the court would be obliged not to grant a non-harassment order until the pre-existing interdict had been varied or removed. This could involve resort to a different process or even court.
10. The proviso we have been considering provides that "a person may not be subjected to the same prohibitions". It was contended before us that the implication of that is that a person should not suffer the restriction of an interdict and non-harassment order whatever the genesis of the interdict. However, if anything at all can be made of this wording, it may rest on the distinction between being "subject to an interdict" and being "subjected to an interdict". A person "subject to an interdict" is the person exposed to its effect. However the person who "subjects" another to an interdict is the judge who pronounces it. The legislation is therefore concerning itself with the judge who is exercising the powers contained in section 8(5) and not some other judge in a different process.
11. The construction proposed by the respondent could lead to inequitable and awkward consequences. For example, all parties who had the protection of a permanent interdict when the Act came into force would automatically be excluded from the benefit of a non-harassment order relating to the same apprehended conduct unless they could arrange the removal or variation of the interdict. Even if it were possible to have the earlier interdict eliminated, awkward problems could arise as to how the removal of the interdict could be synchronised with the pronouncing of the non-harassment order. The interdict may have related to a single act of misconduct but if more trouble occurs and the victim can satisfy the court that there is a course of misconduct as defined in the Act, then the possibility of an application for a non-harassment order arises and it could be important that the procedure should be quick and efficient. The respondent's counsel suggested that the victim could take steps to have the original interdict adjusted but this would involve intervention in the original process and it is not difficult to foresee much scope for problem and delay. The precise extent of the effect of an interdict may raise questions which could be easier to resolve within the factual framework of the original process. The judge in the action of harassment would have all such matters under control. The court would know whether or not interdict had been granted in the action of harassment and, if that had happened, the circumstances surrounding it and its exact scope. It is difficult to accept that the legislature intended to create the awkward issues that could arise if the factors affecting the selection of a remedy in an action of harassment included, as a fundamental question of competency, matters not pertaining to the action itself. If section 8(5) is to bear the wide application proposed by the respondent then one would have expected that this could have been stated in clear terms and not in terms that suggest that the restriction in grant of remedies is limited exclusively to the operation of the new statutory remedies introduced.
12. Of course the respondent argued that overlapping interdicts are undesirable and that therefore it would have been intelligible to make a provision which would prevent this happening. Nevertheless the issue we have to deal with in this action is only concerned with competency and the prescribed limits in the exercise of the statutory remedies granted to the Court by the Act. Without reference to actions of harassment collisions between, or overlapping of, prohibitory remedies such as interdict can occur and are regulated by well established rules and procedures. We are only holding that the action is technically competent and are not expressing any view as to whether the order sought should be granted. Thus in the present action the fact that the appellant presently has the protection of a permanent interdict is a significant factor which would require to be considered by the court. The court can only grant the non-harassment order if it is satisfied that it is appropriate to do so. The court must be satisfied that the grant of an on-harassment order is required to give the appellant further protection. The actual need for protection by the court is always a pre-requisite if an interdict is sought. But for immediate purposes we hold that the finding by the sheriff that the application for a non-harassment order should be refused as incompetent is ill-founded.
13. We shall accordingly recall the interlocutor of 6 December 2001 and also refuse in hoc statu the appellant's motion to be granted a non-harassment order. The case will be remitted to the sheriff to proceed as accords.