Glasgow Housing Association Ltd v Sharkey [2004] ScotSC 71 (04 November 2004)

Glasgow Housing Association Ltd v Sharkey [2004] ScotSC 71 (04 November 2004)

The sheriff's discretion in refusing the interim anti-social behaviour order was not exercised on the correct statutory basis, as there was insufficient consideration of the necessity for such an order. However, given the circumstances and the proximity of the proof, the appeal is refused and the matter remitted to the sheriff for further proceedings.

Citation
[2004] ScotSC 71
Parties
Pursuer: Glasgow Housing Association Limited; Defender: David Sharkey
Jurisdiction
Scotland
Judgment Date
04 November 2004
Procedural Posture
Summary Application (civil) / Appeal Against Interlocutor Refusing Interim Anti Social Behaviour Order
Outcome
appeal refused
Legal Topics
Anti Social Behaviour Orders, Interim Orders, Judicial Discretion, Necessity Test
Civil Procedure Housing Law Public Order Anti Social Behaviour Orders Interim Orders Judicial Discretion Necessity Test

Case Brief

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Parties

Glasgow Housing Association Limited

Pursuer

David Sharkey

Defender

Procedural Posture

Summary Application (civil) / Appeal Against Interlocutor Refusing Interim Anti Social Behaviour Order

Legal Issues

  1. 1 Whether the sheriff erred in refusing to grant an interim anti-social behaviour order under Section 19 of the Crime and Disorder Act 1998 as amended
  2. 2 Proper interpretation of the necessity test for interim orders under Section 19(2A)(b)
  3. 3 Scope of judicial discretion in granting interim orders

Ratio Decidendi

The sheriff's discretion in refusing the interim anti-social behaviour order was not exercised on the correct statutory basis, as there was insufficient consideration of the necessity for such an order. However, given the circumstances and the proximity of the proof, the appeal is refused and the matter remitted to the sheriff for further proceedings.

Court Disposition

appeal refused

Orders

  • appeal refused and sheriff's interlocutor of 4 March 2004 adhered to
  • no expenses due to or by either party in respect of the appeal