SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS
AT INVERNESS
A726/03
JUDGEMENT
of
SHERIFF
PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
in the cause
STUART JAMES BRENNAND LATHAM and MRS SHIRLEY MAY LATHAM
Pursuers and Respondents
against
STUART MARK HUNT
Defender and Appellant
|
Act:
Mr Lachlan McNeill, advocate, instructed by The Mackenzie Law Practice, Inverness
Alt:
Party
Inverness: 17th July 2007
The
sheriff principal, having resumed consideration of the cause, refuses the
appeal and adheres to the interlocutors of the sheriff dated 14 September and 11 October 2006 subject to the
following amendments of the findings in fact made by the sheriff in the first
of these interlocutors:
(1) In the third sentence of finding in fact 7 insert
after the words "...... of the plan was" the words "subsequently replaced by the
defender with a larger rock that was";
(2) Delete the last sentence of finding in fact 7;
(3) In the fourth last sentence of finding in fact 18
(which begins "All vehicles owned .....") insert after the word "pursuers" the
words "other than the Land Rover"; and
(4) In the third last sentence of finding in fact 18
(which begins "On 12 January 2005 .....") delete the words "grounded his saloon"
and substitute "was present as a passenger when the first pursuer grounded his
Rover 600";
finds
the defender and appellant liable to the pursuers and respondents in the
expenses of the appeal and allows an account thereof to be given in and remits
the same when lodged to the auditor of court to tax and to report; certifies
the appeal as suitable for the employment by the pursuers and respondents of
junior counsel; quoad ultra remits
the cause to the sheriff to proceed as accords.
Note
[1] In this case the pursuers and respondents
are the owners of the property known as Mid Balchraggan House, Drumnadrochit,
Inverness-shire. The defender and
appellant and his wife are the owners of a neighbouring property, namely Mid
Balchraggan Cottage, Drumnadrochit, Inverness-shire. The pursuers as owners of their property have
a servitude right of pedestrian and vehicular access to their property along a
short length of road which passes over part of the property owned by the
defender and his wife. There is a wooden
gate at the bottom of this access road and a metal gate at the top. Both gates are kept shut and are opened only
to allow vehicles to pass through. The
road is on a steep gradient and is 63.4 metres in length.
[2] In the autumn of 2003 the defender placed
various rocks at either side of the road, the effect of which was to reduce the
average width of the road to 2.2 metres, and subsequently to 2.1 metres. In these circumstances it was difficult,
although not impossible, for a motor car to be driven between the rocks on the
road, and particularly so at night. On
one occasion during the evening of 22
November 2003, following an incident in which the defender swore at
the pursuers and challenged the first pursuer to fight him "man to man", the
police were called. On arrival a police
officer tried unsuccessfully to drive between the rocks at the bottom end of
the road and hit his vehicle against them.
[3] On 28
November 2003 the pursuers' agents wrote to the defender calling
upon him to remove the rocks from the road within 48 hours. He did not do so. On 23
December 2003 the sheriff granted an interim interdict against the
defender after an undertaking had been given by the pursuers' agents at the bar
that they would not drive along the road at a speed in excess of 5 mph.
[4] During the weekend of 6/7 March 2004 the
defender installed three speed humps along the road. These caused the underside of the pursuers'
Rover motor car to scrape along them when being driven over them. The same occurred to a car owned by a
relative of the pursuers. Prior to 12 March 2004 the defender told the
pursuers that he intended to instal more speed humps along the road. By a facsimile message dated 12 March 2004 the pursuers' agents
warned the defender that such further works would be regarded by the pursuers
as a breach of the interim interdict.
[5] During the following Easter holidays the
defender installed two more speed humps at a lower point on the road. These caused the driver and passengers in
vehicles to be jolted and so caused discomfort as did the speed humps which had
earlier been installed.
[6] Following a proof which extended over ten
days and included a site visit, the sheriff by interlocutor dated 14 September 2006 made a number of
findings in fact of which the foregoing is a summary. In light of these he found in fact and in law
that by placing rocks on the road the defender had unlawfully diminished the
use or convenience of the pursuers' servitude right of access over the road and
that the pursuers were entitled to an interdict to prevent same. Likewise the sheriff found that the continued
presence of speed humps built by the defender along the road had unlawfully
diminished the use or convenience of the pursuers' servitude right of access
over the road and that the pursuers were entitled to an interdict to prevent
same. Following a further hearing on 11
October 2006 the sheriff by interlocutor of that date interdicted the defender
or other persons authorised or instructed by him from impeding, restricting or
hindering or attempting to impede, restrict or hinder the pursuers or any other
persons requiring pedestrian or vehicular access to or egress from the
pursuers' property, namely Mid Balchraggan House, over the access road across
the property owned by the defender and his wife by placing stones on the road
or by any other means. It is this
interlocutor and the earlier interlocutor dated 14 September 2006 which are the subject of the present
appeal.
[7] In the note of appeal thirty four grounds
of appeal were stated by the defender.
These speak for themselves and it is unnecessary to set them out in full
here. I confess that when I first saw
them I had difficulty in understanding upon what basis it was going to be
maintained that the sheriff had erred in granting interdict against the
defender. With one exception, all of
these grounds of appeal begin with a statement of a premise or, in many cases,
several premises which is followed by a request for clarification of one aspect
or another of the sheriff's judgement. A
typical example of these is ground 19 which reads:
Given that the second pursuer gave evidence to the effect
that she and the first pursuer removed the rocks from the road on 24 December
2003 by throwing the rocks onto the grass verge, and further given both
pursuers had stated in averments that they had to arrange to have the rocks
removed from the roadway, and further given the second pursuer when
cross-examined on this apparent contradiction in her evidence offered the
apparent incredible explanation that she had to arrange with her solicitor to
have the rocks removed from the road, we would we wish clarification as to and
on what basis the Magistrate (sic) came to his stated conclusion that both the
pursuers were credible and reliable witnesses.
The
single exception is ground of appeal 10 where no premise is stated and there is
simply a request for clarification "as to what bearing the Magistrate (sic)
placed on the date the Mott MacDonald report was prepared, 14 January 2005, relative to the said proof
date of 17 January 2005".
[8] Counsel for the pursuers drew attention to
rule 31.4(3) of the Ordinary Cause Rules 1993 which provides that the grounds
of appeal in a note of appeal shall consist of brief specific numbered
propositions stating the grounds on which it is proposed to submit that the
appeal should be allowed or as the case may be.
Counsel suggested that in this case it might be said that there was no
note of appeal at all since the so-called grounds of appeal stated by the defender
did not constitute propositions stating the grounds on which it was proposed to
submit that the appeal should be allowed.
But counsel very fairly did not maintain that the appeal was incompetent
for this reason since he accepted that it would be wrong for him to say, having
heard the defender's submissions, that he did not know then what were the
propositions upon the basis of which the defender maintained that the appeal
should be allowed. Counsel helpfully
proceeded to identify seven such propositions to which I added an eighth. When he came to respond briefly to the
submissions of counsel, the defender appeared to accept that these eight
propositions fairly reflected his opening submissions which I at least had
found often hard to follow. Rather than
attempt to rehearse these submissions in full I think therefore that it would
be more helpful simply to deal with each of these eight propositions in
turn.
[9] The first proposition was that the sheriff
had erred in law in proceeding on the basis that it was for the defender to
prove that, before the installation of the speed humps, the pursuers or
visitors to their property had been driving along the access road at excessive
speeds after due regard was had for the safety of pedestrians on the road. In this context the defender referred in
particular to one sentence in a paragraph on page 13 of the sheriff's
judgement. In order to put the sentence
in context I shall set out the whole of the paragraph in question. It reads:
But I am also of the opinion that the other speed humps
are material restrictions which have injured the pursuers' enjoyment of the
right of access. As I have found, all of the speed humps cause jolting to
vehicles passing over them. They might, however, become immaterial if it was
proved that they were necessary to ensure the safety of the defender and his
family (including their dog) in their use of Mid Balchraggan Cottage and its
garden ground. In my view, that would
require proof that before the installation of the speed humps the pursuers or
the visitors to their property were driving along the road at excessive speed
after due regard is taken of the safety of pedestrians. That leads me to the last question posed.
It was the penultimate sentence in this paragraph to which
the defender took particular exception and, as I understood him, his point here
in short was that in a case such as this the burden of proof was on the
pursuers as the proprietors of the dominant tenement with the result that the
sheriff had erred in law in proposing that it had been for the defender to
prove that before the installation of the speed humps the pursuers or visitors
to their property had been driving along the road at excessive speeds after due
regard was taken of the safety of pedestrians.
Reference was made here by the defender to an opinion dated 6 April 2004
by Professor Roderick Paisley of the University of Aberdeen which had been
prepared for the defender's former solicitors, the Stair Memorial Encyclopaedia
Volume 18 paragraph 469 and Simpson v
Head (Lanark Sheriff Court, 11 May 1990, reported in Unreported Property
Cases from the Sheriff Courts edited by Professor Paisley and Sheriff Cusine at
pages 237 - 243).
[10] In response counsel for the pursuers
pointed out that the evidential burden in this context had clearly been assumed
by the defender. In his answers he had
offered to prove, and his entire defence to the action had been based upon the
proposition, that the placing by him of the stones on the road and the
subsequent installation by him of the speed humps had been required on account
of the pursuers and their visitors having been driving along the access road at
excessive speeds. In any event, said
counsel, it was entirely in accordance with the law that it was for the defender
to prove that the pursuers and their visitors had been driving at excessive
speeds along the access road since it was for the servient proprietor to
demonstrate that what he had done in the way of creating an interference with
the rights of the dominant proprietor had been necessary for the proper
protection and enjoyment of his own (servient) property. Counsel referred here to Bell's
Principles (10th edition) at paragraphs 982, 984 and 988, Alvis v Hamilton
1991 SLT 64 and Lord Donington v Mair
1894 21R 829. Counsel drew attention to
what the sheriff had said at page 11 of his judgement where he wrote:
In my
opinion, there are three questions arising from these authorities, which
require to be answered in the instant case.
The first question is whether something has occurred which
restricts the enjoyment of the servitude right belonging to the pursuers. While
there was much evidence about the behaviour of the parties prior to the
building of the speed humps (and I shall return to that), the question posed
here by counsel for the pursuers is whether the speed humps restrict the
pursuers' enjoyment of the access right.
If the answer to that question is in the affirmative, the
next question is whether a restriction of this nature is nevertheless so minute
and immaterial that in no true sense has it injured the pursuers' enjoyment of
the right of access.
And the third question is whether the restriction was
required by the defender to allow him and his spouse the beneficial use and
protection of their own property. (Although I accept that there may be
circumstances, but not in the instant case, in which restriction is so minute
and immaterial that the motive of the servient proprietor may not matter.)
Counsel submitted that the
sheriff had here given a correct summation of the proper approach to this case
and he submitted that in light of this the sentence on page 13 of the sheriff's
judgement to which the defender had taken exception was a correct statement of
the law.
[11] In my opinion the submissions here for the
pursuers are to be preferred. As counsel
rightly pointed out, it is a recurring theme in the defender's answers 3 and 4
that the pursuers and visitors to their home had regularly driven along the
access road at excessive speeds and that it was this that had necessitated the
placing by the defender of the rocks and subsequently the speed humps on the
road. Thus at the very end of answer 3
there is an averment which reads: "All the aforementioned steps taken by the
defender in respect of the installation of the speed bumps were required as a
measured response to the pursuers' actings in driving at excessive speeds over
the roadway". Likewise in answer 4 there
are, inter alia, averments which
read: "Accordingly the defender placed rocks on the verges of the access road
at four different points. These rocks
formed a traffic calming measure aimed at restricting the width of the road to
force the pursuers and their visitors to reduce the speeds at which they
travelled over the access road".
[12] It is of course correct that the initial
burden of proving that there has been an interference by the servient
proprietor with a servitude right of access over his property rests upon the
dominant proprietor. But, if such
interference has been shown to have taken place, then it is up to the servient
proprietor to demonstrate nonetheless that what he has done is required for the
proper enjoyment of his property and is an immaterial interference with the
rights of the dominant proprietor. Thus
in Lord Donington v Mair it was said
by Lord Justice Clerk MacDonald at page 832:
It is
quite true that a servitude road or a mere public right of way over the
property of a citizen is not in the same position as a highway. In the case of a highway, the right to
prevent any erection on the highway is absolute; whereas in the case of a
servitude or public right of way it is a question of circumstances whether the
right of those who possess the servitude or of the public is to have it
removed. But still anything which covers
up and prevents the unobstructed use of the ground, subject to the right for
its exercise, must be justified by the owner.
He may do so by shewing that what he is doing is required for the proper
working of his estate, as by dividing fields or the like, and that it is an
immaterial interference with the rights of the dominant tenement in the one
case or of the public in the other. The
case of stiles on a footway is an illustration of this. They are obstructions, but may be put up as
not interfering materially with the right, and as being requisite for the
reasonably working of the owner's estate.
This is well settled by decision.
Applying these
observations to the present case, I think the sheriff was quite correct, having
found that the installation of the speed humps were material restrictions which
had injured the pursuers' enjoyment of the right of access, to say that it was
for the defender to prove that before the installation of the speed humps the
pursuers and their visitors had been driving along the road at excessive speeds
so as to necessitate the installation of the speed humps.
[13] The defender's second proposition was that
the sheriff had erred in law in holding certain of the speed humps to be
objectionable in the absence of evidence of their having caused, or being likely
to cause, damage to vehicles being driven over them. In other words, the proposition appeared to
be that, for a speed hump to be objectionable in this context, it had to have
caused, or to be likely to cause, damage to vehicles. The defender referred here to Servitudes and
Rights of Way by Sheriff Cusine and Professor Paisley at paragraph 12.94 where
the authors note that various types of activities on the part of a servient
proprietor have been held to constitute obstructions to a servitude of access
including "the installation on a road of road humps of such size and shape as
would be likely to cause damage to vehicles".
In a footnote (87) the authors refer here to Simpson v Head and state: "This case leaves it open to the servient
proprietor to install road humps of lesser size which are not likely to cause
such damage". In the present case, said
the defender, the sheriff had found that two of the speed humps were not likely
to damage a car with the result that it was difficult to see how these could be
considered to be a material obstruction.
The sheriff had therefore erred in law in requiring these two humps to
be removed from the access road.
Specifically, the sheriff had erred in stating in the first sentence of
the passage from his judgement quoted in paragraph [9] above that the other
speed humps (meaning those on which vehicles had not grounded) were material
restrictions which had injured the pursuers' enjoyment of the right of access.
[14] In response, counsel for the pursuers
submitted that the proposition that, for it to be found to objectionable in
this context, a speed hump must have caused, or be likely to cause, damage was
simply wrong. To the extent that the
proposition was founded on Simpson v Head,
the sheriff's decision in that case was not authoritative and in any event he
had said nothing in his judgement to suggest that it was only if it caused, or
was likely to cause, damage that a speed hump should be held to be
objectionable. Counsel drew attention to
a passage in the Comment on this case at page 242 of Unreported Property Cases
from the Sheriff Courts where the editors write: "Where traffic is passing
along a servitude of way at excessive speed, the decision leaves it open to a
servient proprietor to install speed-humps of a more generally acceptable
design and height which will cause cars to slow down but which will not damage
those cars". Counsel pointed out that it
was not suggested in this passage that damage, or the likelihood of damage, was
necessary before a speed hump could be held to be objectionable. No one maintained, said counsel, that a
servient proprietor was absolutely forbidden from installing speed humps on an
access road. In light of the balancing
exercise desiderated by Lord Justice Clerk MacDonald in Lord Donington v Mair the question was whether they were necessary
for the enjoyment by the servient proprietor of his property and at the same
time constituted only a minimal interference with the rights of the dominant
proprietor.
[15] In my opinion it is not the law that,
before it can be required to be removed from a road over which a servitude
right of vehicular access exists, a speed hump must have caused, or be likely
to cause, damage to vehicles passing over it.
The true question here is whether the presence of the speed hump on the
road constitutes an interference with the enjoyment by the dominant proprietor
of his right of vehicular access which is more than merely immaterial. As the sheriff points out at page 11 of his
judgement, this question and the question whether the speed hump is required by
the servient proprietor for the beneficial use and enjoyment of his own
property may overlap to some degree depending upon the circumstances of each
case. In the present case the sheriff
found in fact (see finding in fact 18) that the two speed humps which were last
installed by the defender caused the driver and passengers in vehicles to be
jolted and so caused discomfort. In
addition the sheriff found that one of the original three speed humps also
caused discomfort. In my opinion this was enough to entitle him to find in fact
and in law as he did (see finding in fact and law 3) that the continued
presence of these speed humps, in addition to those which had actually caused
damage to passing vehicles, had unlawfully diminished the use or convenience of
the pursuers' servitude right of access over the road.
[16] The defender's third proposition was based
upon a passage at page 12 of the sheriff's judgement where he was considering
the question whether or not it had been proved that vehicles had grounded on
some of the speed humps installed by the defender. The sheriff compared the evidence of the
defender and his expert, Mr Shackleton,
on the one hand and the evidence of the pursuers and their expert, Mr
Girvan, on the other. After observing that the pursuers were quite
adamant that their vehicles had indeed grounded on some of the speed humps the
sheriff wrote:
That
evidence was supported by Mr Girvan's
evidence of his own experience of grounding when he carried out his
inspection. He plainly had no axe to grind and I therefore
found his evidence to be compelling.
[17] The defender submitted that, in saying
that he had found Mr Girvan's evidence to be compelling, the sheriff was
referring to the evidence of Mr Girvan generally and not merely in relation to
the issue of grounding. He proceeded to
address me at some length on a variety of different aspects of Mr Girvan's
evidence which are referred to in grounds of appeal 5 to 13 and in short
submitted that no reasonable court could have come to the conclusion that Mr
Girvan's evidence was compelling. He
referred here to The Law of Evidence in Scotland
by David Field at page 16 and Walkers on
Evidence (1st Edn) at page 402.
[18] In response, counsel for the pursuers
acknowledged with reference to ground of appeal 7 that the sheriff had been
mistaken in finding, as he had in finding in fact 18, that on 12 January 2005
Mr Girvan had grounded his saloon motor car on one particular speed hump. Counsel explained that the evidence of both
the first pursuer and Mr Girvan had been to the effect that the latter had
driven his car to the car park at Drumnadrochit where the first pursuer had
collected him and had driven him in his (the first pursuer's) own car back to
Mid Balchraggan House. Mr
Girvan had said in his evidence that he had
been in the front passenger seat of the first pursuer's car and had experienced
the grounding of this car when it had been driven by the first pursuer over the
final speed hump at the top of the access road.
Counsel proposed therefore, and I did not understand the defender to
dispute, that the sentence in question in finding in fact 18 should be amended
to reflect the fact that Mr Girvan had been present as a passenger when the
first pursuer had grounded his Rover 600 motor car on this speed hump.
[19] Referring to the sheriff's comment that he
had found the evidence of Mr Girvan to be compelling, counsel pointed out that
all the sheriff was saying in the passage on page 12 of the sheriff's judgement
to which the defender had referred was that he had found the evidence of Mr
Girvan to be compelling on the question whether or not a saloon car had
grounded on the last speed hump before the metal gate into the pursuers' property. Counsel drew attention here to page 12B/E of
the notes of the evidence of Mr Girvan in cross-examination (on 9 March 2006)
where he had confirmed evidence which he had given earlier to the effect that
he had been in the first pursuer's car and had heard a grinding noise as it had
passed over the final speed hump before the metal gate. Counsel reminded me that the sheriff had seen
and heard Mr Girvan
give evidence and he submitted that the sheriff had been quite entitled to find
Mr Girvan's
evidence on the issue of grounding to be compelling given that he had had no
axe to grind between the parties.
[20] In my opinion the submissions here for the
pursuers are to be preferred. It is I
think perfectly clear that all that the sheriff was saying in the passage in
question was that he had found the evidence of Mr Girvan on the issue of
grounding to be compelling, and moreover he gave an entirely satisfactory
reason for reaching this conclusion, namely that Mr Girvan had had no axe to
grind between the parties. Contrary to
what was maintained by the defender, the sheriff did not say in this passage
that he found Mr Girvan's
evidence in general to be compelling. So
it is unnecessary to consider the criticisms that were made by the defender of
other aspects of Mr Girvan's
evidence. (For the sake of completeness
I should record in this context that the defender also submitted that no
reasonable court could have concluded, as the sheriff had done, that the
pursuers' Rover 600 saloon cars had grounded on two of the speed humps in
particular. To this I would merely say that it was for the sheriff to determine
this issue having heard all the evidence and weighed up the competing
considerations as he did at pages 12 and 13 of his judgment, and nothing that was
said by the defender gave me any reason to think that I ought to interfere with
the sheriff's findings on this issue).
[21] The defender's fourth proposition related
to the sheriff's finding in fact 12 coupled with the third sentence of his
finding in fact 5. These two findings in
fact are as follows:
5.
There is a wooden gate at the bottom of the access road
forming the right hand fork on the plan ("the road"). There is also a metal gate at the top of the
road. Both gates are kept shut and are
opened only to allow vehicles to pass through.
The road is on a steep gradient.
It is 63.4 metres in length.
12.
Due to the gradient of the road, its relatively short
length and the existence of a closed gate at each end of it, it is unlikely
that a vehicle being driven along it would travel at an excessive speed, such
as to be unsafe for pedestrians or animals present within the subjects owned by
the defender and his spouse.
[22] The defender indicated here that his
expert witness, Mr Shackleton,
had said in his report that it was possible for vehicles to be driven at 20 mph
up the access road and at 30 mph down the road.
He drew attention to a passage at page 43E of the notes of the
cross-examination of the second pursuer where she said: "Well, we had taken out
an undertaking to open the gate and stay by the gate when there is somebody
doing the gate by the car". The defender
said that in this passage the second pursuer was referring to an undertaking
that the pursuers had given to the court on 17 June 2004 in a separate action to the effect that they
would close the gate when a car had passed through it. This, said the defender, showed that there
were issues about gates not being closed after a car had passed through them,
all of which meant that the sheriff had not been entitled to find that both
gates were kept shut and opened only to allow vehicles to pass through. This in turn undermined the sheriff's
conclusion in finding in fact 12 that it was unlikely that a vehicle being
driven along the access road would travel at an excessive speed. The defender referred here also to page 4E of
the notes of the cross-examination (on 10 March 2006) of Mr Girvan where he
accepted that in the absence of a speed hump at the top (metal) gate a speed of
30 mph would be possible if the gate was open.
The defender submitted in light of these considerations that the third
sentence in finding in fact 5 and finding in fact 12 were wrong.
[23] It is perhaps worth recording at this
point that the only notes of the evidence which were obtained by the defender
for the purposes of the appeal were the notes of the cross-examinations of the
first and second pursuers and their expert Mr Girvan. In the absence of the record of the remainder
of the evidence it is very difficult to see how I could disturb the sheriff's
findings in fact except to the limited extent that counsel for the pursuers
conceded that they required to be corrected.
Although I was not referred to any notes of the evidence on the point, I
understood counsel to accept that on certain occasions the wooden gate at the
bottom of the access road would be left open by one of the pursuers if he or
she knew that the other was coming up the hill to their property. If this be correct, I do not think that it
undermines the truth of the sheriff's finding in finding in fact 5 that both
gates are kept shut and are opened only to allow vehicles to pass through. As for finding in fact 12, counsel submitted
that this was not undermined by the fact that on some occasions the wooden gate
at the bottom of the hill would be left open when someone was coming up the
hill and he pointed out here, rightly in my opinion, that all that the sheriff
had said was that it was unlikely that a vehicle being driven along the
road would travel at an excessive speed.
In this context counsel properly drew attention too to the sheriff's
findings to the effect that the pursuers had not driven at an excessive speed
along the road - see findings in fact 6 and 11.
In all the circumstances I am not persuaded that the sheriff erred in
making his findings in fact 5 and 12.
[24] The defender's fifth proposition was that
the sheriff had failed to take into account what he (the defender) said was the
important evidence of Mr Shackleton to the effect that speeds of up to 20 mph
uphill, and 30 mph downhill, were possible along the access road. Here the defender drew attention too to the
evidence of Mr Girvan to which I have already referred in paragraph [22] above. The defender submitted that by any reasonable
standards this evidence of the speeds that were possible along the road would
justify the installation of some form of traffic calming measures along the
road.
[25] I have already drawn attention to the
sheriff's findings about the speeds at which the pursuers in fact drove along
the road. As for the suggestion that the sheriff had not taken into account the
evidence of Mr Shackleton as to speeds possible on the road, the answer in my
opinion is to be found in a passage in the sheriff's judgement to which counsel
for the pursuers referred me at pages 14 - 15 which reads:
I
acknowledge that the pursuers or their visitors might well have driven, even if
only on a rare occasion, at speeds in excess of 5 mph, but I accept that the
pursuers' intention (and the probable intention of their visitors) was always
to drive slowly and safely along the road.
Accordingly, any speed occasionally in excess of that limit does not
detract from the general position that the pursuers and their visitors have
driven slowly and carefully and at more or less 5 mph. Doubtless, the defender would say that it
takes only one journey at excessive speed to cause an accident, but it was
plain from the experts' evidence that a driver determined to travel at speed
along the road might be slowed down to some extent by the speed humps but would
still be able to drive well in excess of the speed limit the defender desired
or indeed whatever speed a reasonable person would consider appropriate.
[26] At the outset of the note appended to his
interlocutor at page 6 of his judgement the sheriff recorded that he had found
the pursuers to be both credible and reliable witnesses who had given their
evidence in a moderate and reasonable fashion, that he could not say the same
thing about the defender and that, on matters where there was a plain
disagreement between him and the pursuers as to what had occurred, he had found
it very easy indeed to accept the pursuers' evidence and to reject the
defender's. The defender himself was
evidently upset by this assessment and a recurring point in his submissions was
the proposition that no reasonable court could have concluded that the pursuers
were credible and reliable witnesses.
[27] In response to this counsel for the
pursuers submitted, rightly in my opinion, that it was very difficult to see
any basis upon which an appeal court could be invited to conclude that the
sheriff had been wrong to regard the pursuers as credible and reliable
witnesses without being taken to their evidence as a whole and considering it
in detail rather than looking, as the defender had done, at a few isolated
passages in the notes of evidence of their respective cross-examinations. Moreover, the defender's proposition flew in
the face of the tract of authority to the effect broadly that an appeal court
should be very slow to interfere with the assessment by a court of first
instance of the credibility and reliability of a witness who has given evidence
before that court. A familiar illustration
of this is to be found in the judgements delivered in the House of Lords in Clarke v Edinburgh and District Tramways Co 1919 SC (HL) 35 to which
counsel for the pursuers referred me.
Thus at pages 36/37 Lord Shaw
of Dunfermline stated:
When
a Judge hears and sees witnesses and makes a conclusion or inference with
regard to what is the weight on balance of their evidence, that judgement is
entitled to great respect, and that quite irrespective of whether the Judge
makes any observation with regard to credibility or not. I can of course quite understand a Court of
appeal that says that it will not interfere in a case in which the Judge has
announced as part of his judgement that he believes one set of witnesses,
having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause
in a Court of justice. In Courts of
justice in the ordinary case things are much more evenly divided; witnesses
without any conscious bias towards a conclusion may have in their demeanour, in
their manner, in their hesitation, in the nuance of their expressions, in even
the turns of the eyelid, left an impression upon the man who saw and heard them
which can never be reproduced in the printed page. What in such circumstances, thus
psychologically put, is the duty of an appellate Court? In my opinion, the duty of an appellate Court
in those circumstances is for each Judge of it to put to himself, as I now do
in this case, the question, Am I - who sit here without those advantages,
sometimes broad and sometimes subtle, which are the privilege of the Judge who
heard and tried the case - in a position, not having those privileges, to come
to a clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that
the Judge with these privileges was plainly wrong, then it appears to me to be
my duty to defer to his judgement.
[28] The defender's seventh proposition was
advanced under reference to paragraph 34 in the grounds of appeal which reads:
Given
the Magistrate was also the Magistrate at a hearing on 11 January 2006 where a
criminal conviction against the defender was discussed, and further given the
Magistrate was also the Magistrate at a hearing on 21 April 2006 where an ASBO
being pursued by Highland Council against the defender and his wife was
discussed, we would wish clarification as to what bearing the Magistrate placed
on his involvement in the hearing on 11 January 2006 and 21 April 2006
involving the defender and his wife and his hearing of the proof Latham v Hunt.
In this context the
defender posed the question whether the sheriff had had a prejudicial view of
him and, as I understood him, he suggested that this question should be
answered in the affirmative essentially because he had been right on all points
of law and fact in contention in the case and yet the sheriff had proceeded to
grant interdict against him. In
developing this submission the defender rehearsed many of the points which he
had already made, for example that the sheriff had erred in law on the issue of
onus of proof, that no reasonable court could have concluded that the pursuers
were credible and reliable witnesses, that the sheriff had been wrong to
disbelieve the evidence of the defender himself, that the sheriff had been
wrong to find it proved that the pursuers' cars had grounded on certain of the
speed humps and that he had been wrong too to attach equal value to the
evidence of Mr Girvan as compared with that of the defender's expert Mr
Shackleton.
[29] Beyond reading out paragraph 34 of the
grounds of appeal the defender did not elaborate upon what had happened at
either of the hearings on 11 January and 21 April 2006. But
counsel for the pursuers helpfully explained what had happened on these
occasions. On the first of these the
sheriff had been presiding at the first hearing of a summary cause action in
which a firm of solicitors in Inverness had sued the
defender for payment of their fees for representing him in an earlier criminal
prosecution. A defence had been noted
but the sheriff had indicated that he would not be prepared to hear the proof
in the case because he was already involved in the present case, the proof in
which had begun in November 2005. The
outcome of the first hearing had been that the cause had been continued to 8 February 2006. The crucial point, said counsel, was that the
sheriff at the first hearing had not made any decision about the credibility or
otherwise of the defender nor had he had to decide whether or not the defender
had been rightly convicted in the earlier criminal case. Moreover, the incident which had been the
subject of that earlier case had played no part in the evidence in the present
case.
[30] Turning to the events of 21 April 2006, counsel explained that
the Highland Council had raised an action against the defender for an
anti-social behaviour order. After an
interim order had been granted against the defender an issue had arisen whether
he had been in breach of this. It was
arranged that the proof in that case would be dealt with by a part-time
sheriff. In the event she had not been
available on 21 April 2006
and the case had been called that day before the sheriff who had presided in
the present case for the sole purpose of continuing the proof in the breach
proceedings to a date when the part-time sheriff would be available. So once again the sheriff had not been
required to form a view on any matter which might be in issue in the present
case.
[31] Counsel referred here to Hauschildt v Demark 1989 12 EHRR 266 and
submitted that the test of whether there might be any cause for concern about a
judge's impartiality was whether at an earlier stage in other proceedings the
judge had had to make even a preliminary determination on a matter which he or
she would also have to determine in the later case in which his or her
impartiality was called into question.
If this factor was not present then there would be no reasonable basis
for concern about the judge's impartiality.
Reference was made here to article 6 of the European Convention on Human
Rights. The question in the present
case, said counsel, was whether a reasonably informed observer with a
reasonable understanding of what had happened would have cause to be concerned
about the impartiality of the sheriff in this case. Counsel submitted that the test here was an
objective one and that no reasonably informed observer would have been
concerned about the sheriff's impartiality.
Counsel pointed out that the defender had been represented at the proof
by a solicitor who had not raised any issue over the sheriff's impartiality or
even asked the sheriff to consider whether he could properly continue to hear
the proof in this case. This, said
counsel, was understandable given that in neither of the other two cases had
the sheriff had to determine anything of relevance to the present case. If it
was being suggested by the defender that there had been actual prejudice on the
part of the sheriff, this was untenable since there was no evidence whatsoever
of such prejudice.
[32] In my opinion the submissions of counsel
for the pursuers on this matter are to be preferred. It simply will not do for the defender to
suggest that the sheriff may have been prejudiced against him essentially for
no other reason than that he found in favour of the pursuers and granted
interdict against the defender. Nor do I
think that a reasonably informed observer with a proper understanding of what
had taken place before the sheriff on 11 January and again on 21 April 2006 would
have any cause to be concerned about the impartiality of the sheriff in the
present case in relation to the issues of fact and law which he had to decide.
[33] Finally, in the course of his submissions
the defender drew attention to certain errors in the sheriff's findings in fact
which were conceded by counsel for the pursuers. I have already referred to one of these in
paragraph [18] above, and have taken the opportunity in my own interlocutor of
making the necessary corrections to the sheriff's findings in fact. But it has to be said that the defender did
not spell out clearly what the significance of these errors was in the context
of the sheriff's judgement as a whole.
Counsel for the pursuers understandably submitted that these amendments
made no difference to the thrust of the sheriff's judgement nor afford any
basis for overturning it.
[34] On this point I agree with counsel. In my opinion the amendments to the sheriff's
findings in fact are immaterial and do not undermine the sheriff's findings in
fact and law upon the basis of which he granted interdict against the defender.
[35] Counsel submitted that I should find the
pursuers entitled to the expenses of the appeal and that I should certify this
as suitable for the employment by the pursuers of counsel. I did not understand the defender to oppose
the pursuers' motion for the expenses of the appeal, and he explicitly conceded
the motion for the sanction of the employment of counsel. For my own part I am quite satisfied that it
was appropriate that the pursuers should have employed junior counsel for the
purposes of the appeal.
