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Party can appeal failure to impose contempt penalty, judges rule

18 August 2017

A party in whose favour a court order has been made, and who complains of a breach constituting a contempt of court, is entitled to appeal if they think the court at first instance has erred in not imposing a penalty, the Sheriff Appeal Court has held.

The Sheriff Appeal Court made the ruling in deciding it could hear an appeal by TJ, the father of a child, who claimed that the mother (SB) was in contempt of court by failing to observe a contact order in TJ's favour. Although SB failed to purge her contempt when given an opportunity to do so, the sheriff decided, in the light of the Inner House decision in a similar case, SM v CM, that it was inappropriate to impose any sentence.

On appeal TJ argued that the sheriff erred in failing to make any determination following the establishment of contempt. For SB it was argued that TJ had no locus to appeal as this was properly regarded as an appeal against sentence, on which he was not entitled to be heard. The sheriff had applied her mind to the relevant factors.

Delivering the opinion of the court (Sheriff Principal Lewis, Sheriff Braid and Sheriff Cubie), Sheriff Braid said the court did not consider it helpful to consider the issue by attempting to categorise the appeal as either being, or not being, an appeal against sentence. "The fact of the matter is that the sheriff did not impose any sentence and it is more helpful to focus on the actual interlocutor which she pronounced which was to make no order", he commented. "We see no reason in principle why such an interlocutor should not be subject to review in the same manner as any other interlocutor of the court if it can be shown that in deciding to make no order the sheriff erred in some regard and, in so doing, wrongly fettered her discretion."

Considering the nature of proceedings for contempt, he derived a number of propositions:
"(1) the person in whose favour an order has been made has a locus to bring any alleged breach thereof to the attention of the court which made the order;
(2) this court no less than the court at first instance, has an interest in upholding the authority of the court or the supremacy of law; and to take cognisance of any contempts (or alleged contempt) brought to its attention on appeal;
(3) the minuter’s locus to initiate proceedings does not end upon the making of the final judgment as defined in the [Courts Reform (Scotland) Act 2014]. He has a continuing locus to bring the matter to the attention of the Sheriff Appeal Court, where he contends that there has been an error of some sort, on the part of the sheriff;
(4) the Sheriff Appeal Court may decline to take notice of any such appeal if it considers it appropriate so to do".

Sheriff Braid continued: "It follows that there may well be instances where a minuter does have locus to pursue an appeal against a sheriff’s determination in minute and answer proceedings for contempt, at whatever stage in the proceedings that error is said to have occurred... We envisage, therefore, that this court has a gatekeeping role to play, by exploring at the outset of an appeal whether it does or does not wish to take notice of the alleged contempt. If not the appeal would be dismissed without further procedure, otherwise it should be allowed to proceed."

Concluding that the appeal should be allowed to proceed, he stated: "While we do consider that there will be few cases, following final determination, where an appeal by a minuter will be entertained by this court, we consider that the instant case is one in which the appellant has demonstrated the necessary locus and in which this court may have an interest in intervening in the contempt issue in the exercise of its inherent jurisdiction."

Click here to view the opinion of the court.


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