Sinclair v. Sinclair & Ors [2005] ScotSC 13 (18 February 2005)

Sinclair v. Sinclair & Ors [2005] ScotSC 13 (18 February 2005)

The sheriff principal held that, despite the sheriff's misdirection in law, there was sufficient evidence of a risk of abuse by each defender in breach of the interdict and that attaching a power of arrest was necessary to protect the pursuer, given the long-standing and hostile family dispute and the proximity of the parties.

Citation
[2005] ScotSC 13
Parties
Pursuer and Respondent: Kenneth Sinclair; First Defender and Appellant: John Sinclair; Second Defender and Appellant: John William Sinclair; Third Defender and Appellant: Morris Sinclair
Jurisdiction
Scotland
Judgment Date
18 February 2005
Procedural Posture
Civil Appeal / Appeal Against Interlocutor Attaching Power of Arrest to Interdict
Outcome
Appeals refused; interlocutor of 27 September 2004 adhered to with minor amendment.
Legal Topics
Interdict, Power of Arrest, Protection From Abuse (scotland) Act 2001, Appeal Procedure
Family Law Civil Procedure Interdict Power of Arrest Protection From Abuse (scotland) Act 2001 Appeal Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Kenneth Sinclair

Pursuer and Respondent

John Sinclair

First Defender and Appellant

John William Sinclair

Second Defender and Appellant

Morris Sinclair

Third Defender and Appellant

Procedural Posture

Civil Appeal / Appeal Against Interlocutor Attaching Power of Arrest to Interdict

Legal Issues

  1. 1 Whether the sheriff erred in law in attaching a power of arrest to the interdict under the Protection from Abuse (Scotland) Act 2001
  2. 2 Whether attaching a power of arrest was necessary to protect the pursuer from a risk of abuse in breach of the interdict

Ratio Decidendi

The sheriff principal held that, despite the sheriff's misdirection in law, there was sufficient evidence of a risk of abuse by each defender in breach of the interdict and that attaching a power of arrest was necessary to protect the pursuer, given the long-standing and hostile family dispute and the proximity of the parties.

Court Disposition

Appeals refused; interlocutor of 27 September 2004 adhered to with minor amendment.

Orders

  • Refusal of all three appeals against the attachment of a power of arrest to the interdict.
  • Expenses of the appeal to be expenses in the cause.