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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McDonald v. Chief Constable, Central Scotland Police & Ors [2005] ScotCS CSIH_80 (18 November 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_80.html Cite as: [2005] ScotCS CSIH_80, [2005] CSIH 80 |
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McDonald v. Chief Constable, Central Scotland Police & Ors [2005] ScotCS CSIH_80 (18 November 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Macfadyen Lord Mackay of Drumadoon Lord Marnoch
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[2005CSIH80] XA44/05 OPINION OF THE COURT delivered by LORD MACFADYEN in APPEAL in the cause JAMES McDONALD Pursuer and Appellant; against THE CHIEF CONSTABLE, CENTRAL SCOTLAND POLICE and OTHERS Defenders and Respondents: _______ |
Act: Party (Pursuer and Appellant)
Alt: I.F. Maclean; Dundas & Wilson (Defenders and Respondents)
18 November 2005
Introduction
[1] This is an action of interdict and damages arising out of the fact that two vehicles belonging to the pursuer were clamped and then removed from the place where they had been parked in Stirling. The case came before the sheriff for debate on the defenders' pleas to the relevancy of the action. Having heard parties, the sheriff by interlocutor dated 4 April 2005 dismissed the action. The pursuer has appealed against that interlocutor.The sequence of events and procedural history
[2] The pursuer's averments narrate that he left the two vehicles, a Ford Transit van and a Honda motorcycle, at a location which he describes as "off road", near to his house in St John Street, Stirling. On 14 September 2004 wheel clamps were attached to the vehicles, along with notices stating the fees allegedly payable to secure their release. The pursuer reported the matter to the police, but found that it was maintained that the clamping was lawful. The next day he sought to raise this action in Stirling Sheriff Court. As originally framed the action was laid against three defenders, namely (1) the Advocate General for Scotland as representing the Driver and Vehicle Licensing Authority (DVLA), (2) the Chief Constable of Central Scotland Police and (3) Stirling Council. [3] All three defenders had lodged caveats, and accordingly, when the matter came before the sheriff on 16 September 2004 on the pursuer's motion for warrant to cite the defenders and for interim interdict, they were all represented. The matter was continued until 30 September 2004 to enable the defenders to make further investigations. [4] According to information provided to us by the pursuer during the hearing of the appeal, the vehicles were removed from Stirling on 16 September and returned to the pursuer on 28 September. The pursuer avers that the van had been "irreparably damaged". [5] The matter called again before the sheriff on 30 September 2004. The interlocutor pronounced on that date narrates that the sheriff "heard parties further on a change of circumstances", and that the pursuer "stated that he was withdrawing the action against the 1st named defender". Warrant was granted to cite the second and third defenders, and the pursuer's motion for interim interdict was refused. Thereafter the pursuer's pleadings were amended and adjusted and the case was appointed to debate. At the debate, the defenders were jointly represented, and submitted that the pursuer's pleadings against them were irrelevant and lacking in specification. The sheriff upheld that submission and dismissed the action.Grounds of appeal and submissions for the pursuer
[6] The grounds of appeal lodged by the pursuer do not challenge the reasoning which led the sheriff to conclude that the pursuer's pleadings are irrelevant and lacking in specification. Three grounds of appeal are advanced. It is convenient to take the second ground first. It seeks to make a point in relation to the pursuer's rights under Article 1 of Part II of Schedule 1 to the Human Rights Act 1998 (i.e. Article 1 of the First Protocol to the European Convention on Human Rights). In the course of the hearing of the appeal, the pursuer made no reference to that ground of appeal. For that reason it is unnecessary for us to consider it further. In any event, it assumes (contrary to the sheriff's decision) that a relevant case has been made against the defenders that they are responsible for the damage to the pursuer's van. [7] Ground 1 is to the effect that:"the Sheriff did not consider as he ought to have considered that from the previous interlocutors which demonstrate that the defenders were represented at every stage of the proceedings and were fully informed of the change of circumstances that led to the action being dismissed ... against the Advocate General, and of the reasons stated by the agent for the Advocate General ... rendering incompetent the defences lodged by the remaining defenders, this action if it were to continue could only continue by way of proof before answer as the only matter remaining after the interlocutor of 30 September 2004 was which of the Two remaining defenders were liable for the damage to the Transit Van and the damages sought in the crave. ..."
Ground 3 is that:
"the Sheriff failed to take account of the Sheriff Clerks (sic) minutes that formed part of the process at the hearings [on 16 and 30 September 2004]".
The defenders' submissions
[10] Mr Maclean for the defenders submitted that the fallacy which underlay the pursuer's submissions was that any concession made by the DVLA at the hearing on 30 September 2004 had the effect of preventing the remaining defenders from advancing a defence to the claims laid against them. A further fallacy was that at a diet of debate concerned with the relevancy and specification of the pursuer's pleadings, reliance could be placed on what was said at an earlier hearing, without averments of what had transpired at that hearing. [11] Mr Maclean further submitted that the pursuer's pleadings concerning interdict were incoherent. The crave was for interdict against demanding money on pretence of lawful authority. The averment in article 7 of the condescendence was of (wholly inspecific) apprehension that the defenders would again attempt to deprive the pursuer of peaceable enjoyment of his property. The first plea in law purported to base the claim for interdict on the proposition that the defenders have no lawful authority to fit wheel clamps. [12] In short, the defender's position before us was that the pursuer's grounds of appeal were wholly misguided, and afforded no reason for our interfering with the sheriff's dismissal of the action.Discussion
[13] In our opinion the points taken by the pursuer are wholly ill-founded. The relevancy of the pursuer's pleadings must be judged by reference to the averments made in them. On the basis of his examination of the pursuer's averments in the light of the submissions made to him the sheriff has held that they are irrelevant to support the claims the pursuer makes in the crave. Nothing has been said to us which persuades us that the sheriff was in error in reaching that conclusion. [14] As Mr Maclean rightly submitted, the points taken by the pursuer are fallacious. In the absence of averments focusing the matter, the sheriff was not bound or even entitled to take into account, in judging the relevancy of the pursuer's pleadings, what was said or done before another sheriff on 30 September 2005, or any minute of those proceedings. If the pursuer wished to found on anything said or done on that occasion, his proper course was to set out the material on which he wished to rely in averment. He has not done so. Moreover, a concession by the DVLA that it had acted unlawfully and in excess of its powers in clamping and removing the pursuer's vehicles, even if it were accompanied by a narrative implicating the remaining defenders in the sequence of events that led up to the unlawful actings, would not bar the remaining defenders from maintaining their defence to the action so far as laid against them, or remove the need for the pursuer to make relevant averments in support of his claim against them. That is so even although the remaining defenders were represented at the hearing when the explanation was given on behalf of the DVLA.Result
[15] In these circumstances we refuse the appeal and adhere to the sheriff's interlocutor of 4 April 2005 dismissing the action.
