A sheriff's refusal to grant warrant to cite an application by a solicitor for appointment of a financial guardian to an incapable adult could not be brought under review, nor was it appropriate to issue an administrative direction to the sheriff clerk to sign the warrant, a sheriff principal has held.

Sheriff Principal Mhairi Stephen QC at Edinburgh Sheriff Court gave the decision in refusing a further attempt by a solicitor (J) to bring an application relating to F, aged 87, a stroke victim now in a care home, with whom J maintained she had established a close relationship.

Sheriff Braid refused the application on the basis that J, who was simply F's solicitor and not, for example, the holder of a power of attorney, had not shown the necessary “interest” in relation to F's property and financial affairs to bring an application under s 57(1) of the Adults with Incapacity (Scotland) Act 2000 (click here for report).

J sought to bring the decision under review, listing grounds on which the sheriff was said to have erred and requesting the sheriff principal to issue an administrative direction, as was done in Fitzpatrick v Advocate General for Scotland (2004).

Sheriff Principal Stephen said the grounds sought to bring the sheriff's decision under review or appeal, but Fitzpatrick had held that an appeal challenging a refusal to grant a warrant to cite was incompetent, following an 1891 decision, and that remained good law. “There being no action in dependence there can be no appeal”, she stated.

The sheriff principal in Fitzpatrick had however given an “administrative instruction” to the sheriff clerk, on the basis that it would be wrong having regard to human rights considerations to deny the pursuer the opportunity to raise his action. But Sheriff Principal Stephen said the current application was “quite different”: its object was the appointment of a guardian to take decisions on behalf of F, and though it conferred wide powers the sheriff had to have regard to the s 1 principles. Where there was no application the local authority came under a duty in relation to the adult and there was therefore no denial of the adult's needs or right to a guardian. “It follows that the argument in favour of administrative intervention falls away.”

She added: “The sheriff's decision with regard to warrant in this case does not preclude an application by a solicitor as a person 'claiming an interest in the adult's property and financial affairs'. The sheriff's decision is restricted to the circumstances of this application. Other applications fall to be determined on their own facts and circumstances.”

Click here to view the sheriff principal's judgment.