EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Reed Lord Glennie Lord Philip	[2009] CSIH 18 XA13/09   OPINION OF THE COURT   delivered by LORD REED   in Appeal   by   DAVID MULHERN   Appellant;   against   THE SCOTTISH POLICE SERVICES AUTHORITY   Respondents:       _______

 

Act: O'Neill, QC; Balfour + Manson LLP

Alt: Truscott, QC; Morton Fraser

 

13 February 2009

 

[1] In this action of interdict the pursuer craves the court:

"to grant interdict against the defenders from holding a proposed disciplinary hearing on 5 December 2008 or from taking any proposed disciplinary action against the pursuer in respect of his position as Chief Executive of the Scottish Police Services Authority".

On 5 December 2008 the sheriff granted interim interdict in terms of the crave. That order was varied on 9 December 2008. On 16 December 2008 the sheriff refused a motion for recall of the interim interdict as so varied. The defenders appealed to the sheriff principal, who on 9 January 2009 recalled the interim interdict and granted leave to appeal to this court. An appeal was then marked. On 10 February 2009 the defenders notified the pursuer that a disciplinary hearing was to be held on 18 February 2009. The pursuer then enrolled a further motion for interim interdict. At the hearing of the motion, it was however the primary contention of counsel for the pursuer that the interim interdict granted by the sheriff remained in force. That contention was disputed by counsel for the defenders.

[2] In Kennedy v M 1995 SC 121 Lord President Hope said (at page 126):

"The general rule is that the effect of an appeal is that the interlocutor appealed against need not be implemented until the appeal has been disposed of. In Macleay v McDonald 1928 SC 776, in which an appeal was marked against an order of imprisonment for breach of interdict, Lord Anderson said this at page 782: 'I have no doubt of this - that the effect of that appeal, as is the ordinary effect of every appeal from a lower Court to a higher, was to sist all execution upon the decree until the appeal had been determined by this Court.'"

[3] The implication of what was said by Lord Anderson in the case of Macleay, and of what was said by Lord President Hope in the case of Kennedy, appears to be that the effect of an appeal is ordinarily to suspend the operation of the interlocutor appealed against. That view is consistent with section 29 of the Sheriff Courts (Scotland) Act 1907, which provides:

"....An appeal shall not prevent immediate execution of a warrant of sequestration for rent, or of warrants to take inventories, or place effects in custody ad interim, or warrants for interim preservation, and an interim interdict, although appealed against shall be binding till recalled."

That provision appears to be intended to create exceptions to a general rule that the marking of an appeal deprives the interlocutor appealed against of binding effect.

[4] That view is also supported by the case of Stirling v D 1995 SC 358 where Lord Murray, delivering the Opinion of the court, said at page 362:

"On appeal within 28 days the decision is in any event suspended on the principle of Kennedy v M which is directly in point and binding upon us."

In that case the appeal had been taken against an interlocutor discharging an earlier order imposing a supervision requirement. The effect of the appeal was to suspend the operation of the discharge, with the consequence that the supervision requirement remained in force. In the present case, as it appears to us, the appeal against the recall of interim interdict similarly has the effect of suspending the operation of the recall, with the consequence that the original interlocutor granting the interim interdict remains in force.

[5] Were matters otherwise, and an interim interdict granted by the sheriff did not remain in force pending the determination of an appeal against its grant or its recall, the defenders would be able to proceed with the action which the pursuer seeks to interdict, while the appeal was pending, unless this court were itself to exercise de novo a jurisdiction to grant interim interdict; but the court could not do so without judging, in advance of the hearing of the appeal, whether the pursuer had a prima facie case and whether the balance of convenience favoured the grant of interim interdict. Those are however the very issues with which the appeal is concerned. The continuation in force of the interim interdict granted by the sheriff, pending the determination of the appeal, enables these difficulties to be avoided. This court however has jurisdiction to deal with any question which may arise, prior to the determination of the appeal, as to the variation or recall of the interim interdict on the basis of a material change of circumstances.

[6] The contrary argument advanced by counsel for the respondents was based on a statement in Burn-Murdoch, Interdict (1933) at page 155:

"The Lord Ordinary may recall the interim interdict on the hearing on answers, in which case, notwithstanding a reclaiming note for the complainer, it is ended by the grant of the certificate of recall. The Lord Ordinary may suspend or prohibit the issue of this certificate; in this event interim interdict subsists"

That passage, and the authorities on which it is based, relate not to appeals from the Sheriff Court but to the practice of the Bill Chamber. It appears from the discussion in Maclaren, Bill Chamber Practice (1915) at pages 38-29 that it was the practice for the Lord Ordinary on the Bills to issue a certificate of the passing or refusal of a Note, instead of a formal extract of the interlocutor. The issue of a certificate could however be prohibited or suspended. Such certificates do not exist in modern practice, the nearest equivalent being the extract of an interlocutor. The marking of an appeal however prevents the extracting of the interlocutor appealed against: Fowler v Fowler (No 2) 1981 SLT (Notes) 78. In so far as the statement in Burn-Murdoch can be related to modern practice, therefore, it is consistent with the view which we have formed.

[7] In the circumstances we shall refuse the appellant's motion for interim interdict as being unnecessary, in respect that the interlocutor of the sheriff granting interim interdict remains in force (unless varied or recalled on a change of circumstances) until the determination of the appeal.