Mccann v. Mcgurran [2002] ScotCS 67 (14th March, 2002)

Mccann v. Mcgurran [2002] ScotCS 67 (14th March, 2002)

The restriction in section 8(5)(b)(ii) of the Protection from Harassment Act 1997 applies only to interdicts granted within the framework of the harassment action, not to interdicts from other proceedings. Therefore, the sheriff's finding that the application for a non-harassment order was incompetent due to the existence of a prior interdict was ill-founded.

Citation
[2002] ScotCS 67
Parties
Pursuer and Appellant: Elizabeth McCann or McGurran known as McCann; Defender and Respondent: Thomas McGurran
Jurisdiction
Scotland
Procedural Posture
Appeal From Sheriff Court Decision in Action of Harassment / Appeal Against Refusal of Non Harassment Order on Competency Grounds
Outcome
Appeal allowed in part; interlocutor of 6 December 2001 recalled; motion for non-harassment order refused in hoc statu; case remitted to sheriff for further proceedings.
Legal Topics
Harassment, Interdict, Non Harassment Order, Protection From Harassment Act 1997, Competency of Remedies
Family Law Civil Procedure Harassment Interdict Non Harassment Order Protection From Harassment Act 1997 Competency of Remedies

Case Brief

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Parties

Elizabeth McCann or McGurran known as McCann

Pursuer and Appellant

Thomas McGurran

Defender and Respondent

Procedural Posture

Appeal From Sheriff Court Decision in Action of Harassment / Appeal Against Refusal of Non Harassment Order on Competency Grounds

Legal Issues

  1. 1 Whether a non-harassment order is competent when a permanent interdict exists from a prior action
  2. 2 Interpretation of section 8(5)(b)(ii) of the Protection from Harassment Act 1997

Ratio Decidendi

The restriction in section 8(5)(b)(ii) of the Protection from Harassment Act 1997 applies only to interdicts granted within the framework of the harassment action, not to interdicts from other proceedings. Therefore, the sheriff's finding that the application for a non-harassment order was incompetent due to the existence of a prior interdict was ill-founded.

Court Disposition

Appeal allowed in part; interlocutor of 6 December 2001 recalled; motion for non-harassment order refused in hoc statu; case remitted to sheriff for further proceedings.

Orders

  • Recall interlocutor of 6 December 2001
  • Refuse appellant's motion for non-harassment order in hoc statu