Litigation Briefing: Appealing a Warrant Refusal in Scotland

The Sheriff Appeal Court recently had to consider an important procedural issue that could potentially affect many people seeking to access justice in Scotland.

In the case of Rushford v McAlpine the Court was considering an appeal by a Pursuer in the case against the refusal by the Sheriff to warrant an action. The Sheriff Appeal Court held that the grant or refusal of warrant was administrative process. No appeal was therefore competent to the Appeal Court. The procedure was compliant with Article 6 of the European Convention of Human Rights because while there was a right to bring a legal issue before a Court or Tribunal; the right to “access to a Court is not absolute, but subject to limitations which are proportionate to achieving legitimate aims.”

If a warrant for a writ is refused by a Sheriff Clerk and a Sheriff then the Sheriff Principal may direct the writ to be warranted in terms of Section 27 of the Court Reform Scotland Act 2014. There is also possibility of review by the Court of Session by virtue of its supervisory jurisdiction or by petitioning the nobile officium.

BBM’s litigation team routinely advise on procedural issues as they help clients resolve disputes.