South East Traders Limited v Garry Robertson ? Airdrie Sheriff Court, 4 March 2009

The Pursuers/Appellants raised an action for interdict. Interim interdict was granted pre service and a hearing was then assigned. Both the Pursuers and the Defender were represented at that hearing, at which the Sheriff continued the interim interdict previously granted. The Defender/Appellant then enrolled a motion to have the interim interdict recalled. His motion was refused and he lodged an appeal against that decision. The Pursuers raised a preliminary issue as to the competency of the appeal. The Defender had not obtained leave to appeal to the Sheriff Principal from the Sheriff. The Sheriff Principal took the view that either party could have appealed the Sheriff's decision to continue the interim interdict without leave on the basis of Section 27 (a) of the Sheriff Court (Scotland) Act 1907, which allows appeal to the Sheriff Principal against all final judgements of the Sheriff and also against interlocutors granting or refusing interdict, interim or final. That was consistent with the decision of Sheriff Principal Nicolson in ASA International Limited v Nelson 1999 SLT (SH CT) 44. In this case, however, the Defender had enrolled a motion seeking to have the interim interdict recalled and a further hearing had taken place. The Sheriff had heard submissions and then refused the motion. The Defender was appealing against that interlocutor. The Sheriff Principal saw a substantial distinction between the hearing which had taken place after the interim interdict had been granted and the further hearing. At the further hearing, the Sheriff had been asked to decide whether to recall the interim interdict. She had not been asked to grant or refuse an interim interdict. That decision had already been taken. Section 27 (a) of the 1907 Act only allows an appeal without leave against the grant or refusal of an interdict, whether interim or final. The Sheriff's interlocutor following the second hearing did not fall into that category. The Sheriff had refused the motion to recall the interim interdict and that decision was not among those listed in Section 27(a). It was noted that the Court of Session Rules specifically include a decision to recall an interim interdict as being one for which leave to appeal was not required. In contrast, the Sheriff Court Rules did not refer to the recall of an interim interdict and the clear inference was that the decision to recall an interim interdict was not one which could be appealed without leave. The Sheriff Principal concluded that the appeal was incompetent as leave had not been obtained from the Sheriff. The Defender sought, and was granted, leave to appeal to the Court of Session.