Sheriff Appeal Court refuses appeal against rejection of initial writ in neighbour dispute

About this case:

• Citation:
  [2026] SAC (Civ) 25
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal N A Ross

Pursuer and appellant Kevin Rushford has sought to lodge a writ for payment of £99,000 from his neighbour Helen McAlpine, who did not enter process due to the sheriff’s determination that the pursuer had failed to present a relevant case in law. Due to the action raising competency issues in respect of the appeal process itself, the court appointed an amicus curiae to make submissions as to the applicable law.

The appeal was heard by Sheriffs Principal Aisha Anwar, Nigel Ross, and Kate Dowdalls, with the pursuer appearing as a party litigant and Manson, advocate, appearing as amicus curiae.

Obstacle to justice

The pursuer’s writ claimed payment of £99,000 in respect of insults allegedly shouted at him and other grievances including food-throwing and parking. The clerk referred the matter to the sheriff, who issued an interlocutor which both recorded the refusal, on the basis of failure to present a relevant case in law and purported to determine that the interlocutor was final.

It was submitted by the nominal appellant that the appeal was competent as the sheriff had delivered a final judgment, and so section 110(1)(a) of the Courts Reform (Scotland) Act 2014 conferred jurisdiction. It was both certified by the sheriff as such, and final in form, because no further procedure was possible in the absence of warrant. Refusal of a warrant raised an obstacle to justice in terms of Article 6 ECHR and in any event the sheriff did not have the power to refuse a warrant on the basis of the merits.

The amicus submitted that the sheriff’s interlocutor, although purportedly final, was not a final judgment as that term was understood in law. The scheme of the 2014 Act did not innovate on the established law that finality required disposal of craves and adjudication of expenses. Self-certification of finality was not sufficient to confer the status of final judgment, and the approach in Macphail’s Sheriff Court Practice on which the sheriff relied was wrongly stated and not supported by other authority.

In terms of case authority, the amicus referred to similar questions raised in Davidson v Davidson (1891) and Fitzpatrick v Advocate General for Scotland (2004). The former case did not dispute the propriety of dismissal prior to warrant and service, and the latter showed that these types of cases could only be resolved on an individual basis. In relation to the present appeal, the sheriff had wrongly made a decision on relevancy, not on competency.

Not a judicial act

Delivering the opinion of the court, Sheriff Principal Ross noted the different remedies engaged by an administrative process rather than a judicial one, saying: “The first question is whether refusal to warrant is an administrative act, or a judicial one. The question is authoritatively resolved by Canada Trust Co v Stolzenberg (No 2, 2002), [by] Lord Hope. The refusal of a warrant is an administrative act, and is made at a point where the court is not seised of the case and cannot make any judicial decision.”

He explained further: “A refusal by a clerk to warrant an initial writ is not a judicial act, and cannot be converted into a judicial act by the clerk taking advice from a sheriff or from any other source. It remains the clerk’s administrative responsibility, at least initially. If the clerk refuses warrant, the party has a remedy of referral to the sheriff, who may address that decision of new.”

Considering whether the 2014 Act had altered that position, Sheriff Principal Ross said: “Section 136 of the 2014 Act defines ‘decision’ as ‘in relation to a sheriff, judge or court, includes interlocutor, order or judgment’. That is an inclusive, not exclusive definition, but on a contextual analysis it refers to written disposals, not undocumented refusals, and to judicial acts, not administrative acts. On a purposive analysis it was not the intention of the legislature to extend the definition beyond judicial decisions to include pre-service administrative decisions. That distinction has purpose, because judicial decisions are expected to be transparent, fixed and reasoned and thus capable of challenge upon appeal.”

He concluded: “As a result, the Sheriff Appeal Court has no jurisdiction to hear an appeal against refusal to warrant an initial writ. That position would not be remedied by the sheriff granting permission to appeal, because the court is not at that point seised of the case. That conclusion means the present purported appeal must be refused for lack of jurisdiction. The procedure adopted in Fitzpatrick, by which leave to appeal to the Sheriff Principal was sought and granted, is accordingly disapproved.”

Noting this conclusion meant an interlocutor should not be pronounced when a sheriff refuses to sign, Sheriff Principal Ross added in postscript: “The stage of warranting is not the proper point at which to decide points of specification, of relevancy, or other objections more properly left to argument at debate. In our view, the sheriff went too far in deciding the merits of this case at the stage of warranting. Irrespective of the correctness of that view, the stage at which to address it was once the action had been served and defended. As the cause is not properly before us, we cannot issue any direction or other interlocutor other than refusal.”

There being no jurisdiction to hear the appeal, the court refused it as incompetent and recorded its appreciation of the submissions of the amicus curiae.