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SHERIFF APPEAL COURT
[2025] SAC (Civ) 5
EDI-AW37-23
Sheriff Principal N A Ross
DECISION OF THE COURT
in the appeal by
MF
Respondent and Appellant
in the summary application by
CITY OF EDINBURGH COUNCIL
Applicant and Respondent
in respect of
VF
The Adult
13 February 2025
[1]
This is a summary application under the Adults with Incapacity (Scotland) Act 2000,
seeking the appointment of a welfare guardian and a financial guardian, together with
ancillary orders. The respondent and appellant ("Mr F") claims an interest and has opposed
the application. The matter is due to proceed to a proof hearing before the sheriff.
[2]
As part of the progress towards proof, the sheriff pronounced two interlocutors,
respectively dated 9 January 2025 and 15 January 2025. The first of these refused various
motions by Mr F directed at removing or regulating the safeguarder, and making provision
for lodging documents and ancillary procedural matters. The second ordained Mr F to
2
disclose his email address and a true postal address in the UK, for the purposes of service of
documents. Neither affected the subject matter of the summary application itself, namely
the orders to be made in respect of regulating the future wellbeing of the Adult.
[3]
Mr F appealed against those two interlocutors. He relied on the terms of section 2(3)
of the 2000 Act, namely:
"Unless otherwise expressly provided for, any decision of the sheriff at first instance
in any application to, or in any other proceedings before, him under the Act may be
appealed to the sheriff principal, and the decision upon such appeal of the sheriff
principal may be appealed, with the leave of the sheriff principal, to the Court of
Session."
[4]
Appeals to the sheriff principal are to be read as appeals to the Sheriff Appeal Court
(Courts Reform (Scotland) Act 2014 section 109(3)).
The challenge to competency of this appeal
[5]
The applicant and respondent challenged the competency of this appeal. It
submitted that the wording must be read as applying only to the merits of the summary
application, and not to every incidental or procedural decision in the court process. There
was no reported authority on the matter, but existing principles of statutory interpretation
allowed a restrictive interpretation. The court must seek the meaning of the words used,
which must be read in context, and involved the objective assessment of the meaning which
a reasonable legislature as a body would be seeking to convey (R(O) v Secretary of State for
the Home Department [2023] AC 255 at [28] to [43], Supreme Court). The 2000 Act provided
for various orders, relating to nearest relatives (section 4), powers of attorney (section 20),
intervention orders (section 53) and guardianship orders (section 57). The interlocutors
purportedly appealed against related to another type of decision, namely those made at
3
common law or the rules of court, not the 2000 Act. These were of a different type, and
Parliament did not intend section 2(3) to cover those.
[6]
Mr F submitted that the fact that the appeal had been accepted for decision meant
that it was certified competent by the court. He submitted also that the documents had not
been properly served upon him, as his address of choice was in France. If this was not
accepted by the court, it meant that all foreign litigants would be prejudiced. Mr F supplied
an email address to the court. He referred to a deal being offered by him to bring the
litigation to a conclusion. He did not trust the safeguarder.
[7]
On the construction of section 2(3), Mr F submitted that Parliament had purposely
left the category of appeals wide, because these were important proceedings for the Adult's
benefit. The present appeal, if granted, would avoid the need for a subsequent appeal to
remove the safeguarder, and was therefore an efficient use of court procedure. Parliament
had not restricted the nature of appeals because it was reasonable to assume, in such
procedure, that everybody would act reasonably to resolve any issues.
Decision
[8]
The decision was delivered ex tempore, and this note expands on the reasons given
at the time. The appeal was refused as incompetent.
[9]
The first issue is the interrelationship between section 2(3) of the 2000 Act and
section 110 of the Courts Reform (Scotland) Act 2014. The terms of section 110 resolve the
matter - it expressly does not affect the right of appeal to this court under any other
enactment (section 110(4)).
[10]
The question of how section 2(3) should be read is plain, in my view, from the whole
wording of section 2. There is no requirement to resort to the rules of statutory
4
interpretation. The appeal was conducted on the basis that the phrase "any decision of the
sheriff" was the deciding criterion. In my view, that does not give due weight to the earlier
provisions of the section. Section 2(1) restricts the section to "the purposes of any
application which may be made to and any other proceedings before the sheriff under this
Act". Section 2(2) states that "An application to the sheriff under this Act shall be made by
summary application".
[11]
It is clear, therefore, that the "application which may be made" is a reference to the
summary application itself, not to every interlocutor within the court process. A summary
application identifies the orders which are sought under the 2000 Act, and why they should
be granted. The terms of the summary application do not regulate or limit the incidental
directions which a court may issue in furtherance of the application, such as appointment of
a safeguarder or directions about amending pleadings, providing information, lodging
documents, or any other orders which contribute to the preparation and hearing of an
action. These matters are within the control of the court, and are not the subject of the
2000 Act. They are regulated instead by procedural rules and the inherent powers of the
court. The 2000 Act does not purport to regulate all incidental and procedural decisions to
be made by the court.
[12]
In context, then, the phrase in section 2(3) "any decision of the sheriff at first instance
in any application", refers to the decisions in relation to the orders sought under the
2000 Act and contained within the summary application. In the present instance, an appeal
will be available, subject to the usual rules about when appeals are stateable, in relation to
the appointment of a welfare guardian, the financial guardian, or the incidental orders
sought. It is not available against the decision to appoint a safeguarder, which is a common
law power inherent to the court, and not regulated by the 2000 Act. It is not available in
5
relation to a direction to provide an address, which is a common law power inherent to the
court to regulate its own procedure.
[13]
Following examination of the two interlocutors under appeal, neither relates to
orders made under the 2000 Act. Neither interlocutor is appealable under section 2(3) of the
2000 Act.
Disposal
[14]
For the foregoing reasons, this appeal is not competent. The appeal was dismissed.
[15]
As a post-script, Mr F appears to wish to participate in the court procedure while
refusing to provide an address within the jurisdiction, or an email address, at which service
can be made. That is not a position open to any litigant, and appears to misunderstand the
onus on the court. The court is concerned only that each litigant receives fair notice. The
court does not require to guarantee service in the face of obfuscation, refusal to engage or
frustration of service. If a litigant does not wish to participate, the court and the other
parties are under no obligation to force him to accept service. The litigant is at liberty to
avoid service, allow envelopes to pile up on the doormat, or leave messages unopened in an
Inbox. The penalty is, however, that the court will not listen to any protest that service was
not made, or information not given, if it is shown to have been sent to the correct address.
In the present action, it will be enough if the court or the applicant make electronic service at
any of the email addresses used by Mr F in submitting his own documents. Effective service
will be assumed. If that address is to be changed, the onus is on him to provide an
alternative, effective address.
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