In McEntegart v Fishman [2012] CSIH 72, the Inner House was faced with a novel problem concerning whether Sheriff Officers had a discretion as to whether or not to charge a fee for unsuccessful diligence. There had been only 2 unreported decisions by 2 different Sheriff Principals and no higher authority had ever decided such an issue.

A complaint had been made against Mr Fishman who had admitted deciding not to issue fee notes after undertaking diligence for Glasgow City Council which had proved unsuccessful.

Before the Sheriff Principal, it was held that the Act of Sederunt, which contained the fees for Sheriff Officers, made it mandatory for Sheriff Officers to charge for each piece of work undertaken. As Mr Fishman had failed to do this he was found guilty of misconduct.

On appeal to the Inner House, the Court overturned the Sheriff Principal’s decision and held that the provisions of the Act of Sederunt were to be interpreted as providing discretion to a Sheriff Officer when deciding whether or not to charge a fee. In light of that finding, the Court also overturned the finding of misconduct against Mr Fishman.

The decision settled a long standing dispute between Sheriff Officers as to whether the Act of Sederunt provided for discretion in choosing not to charge fee notes.

Terra Firma Chambers' Stephen Winter appeared on behalf of the appellant and while Roddy McIlvride appeared for the Respondent.

To read the full decision please click here.