Scottish Court of Session Decisions

My Lords

This petition was presented under section 46 of the Court of Session Act, 1988 for recovery of the petitioners' possession of an area of ground at Newmart Road, Edinburgh. The petitioners own the ground. The ground was occupied during the weekend of 21 to 24 May by a group of persons whose identities are unknown to the petitioners. An order for service is sought:

There is no schedule for service in the circumstances. A question arises as to the competence of pronouncing a first order.

The application is one of a number which have been made in recent weeks relating to the same topic, namely recovery of possession from intruders occupying premises or land without permission of the owner. Another example is Marco's Leisure Limited v The Occupiers of the subjects known as the Corn Exchange, New Market Road, Edinburgh (reference 014/4/99). In that action the pursuers conclude for decree of removing, without any other conclusion. Following signeting of the summons the pursuers enrolled a motion in these terms:

A question arose whether a simple action of removing was competent in the Court of Session: Maxwell Court of Session Practice pages 100 and 354. Section 35 (1)(c) of the Sheriff Courts (Scotland) Act, 1971 provides that an action for recovery of possession of heritable property is a summary cause. A question arose whether the sheriff had exclusive jurisdiction in the matter. Rule 45 A. 3 has ample scope in actions with conclusions other than removing, as for example where declarator is sought. Counsel asked for time to consider these points and they were not resolved. However the live question of competence of such an action appears to be one of the factors explaining the procedure in the present petition. It is perceived that, whatever the terms and effect of the order sought in the prayer, petition procedure under the 1988 Act is not open to objection on the ground that it is an action of removing. That question may be addressed if the petition proceeds and answers are lodged.

The issue at present is whether a first order can be pronounced on such a petition.

The petition narrates, inter alia: "Had the Petitioners known that the persons intended to occupy the said area, they would have sought interdict to restrain them from so doing.", an apparent reference to the terms of section 46 of the 1988 Act. That would not have been competent: Lord Advocate v The Scotsman Publications Ltd. 1988 S.L.T. 490. The petitioners have at no relevant time known the identities of any of the individuals who are said to have invaded and occupied their land. Section 46 could not be satisfied at the present time and could not have been satisfied at any time since the invasion. That was accepted by counsel in the present case.

What the petitioners envisage is that messengers at arms would take the petition and first order to the site, and there seek to identify individuals in occupation, by name, if possible, and otherwise by photographing them or obtaining other evidence of the identities of those they found there and "served" with the petition and order. If full identities were obtained, there would be an amendment of the petition and a motion for fresh service on the named individuals. It was accepted that the procedure as a whole could only ultimately succeed against individuals who had been identified. It was contended that once an individual had been identified by this procedure he or she would then be a person against whom interdict might have been obtained.

There is no equivalent of Rule 45 A. 3 in petition procedure.

Prima facie, the petition is directed against individuals, and service is required, given the nature of the allegations and the possible consequences for the people involved. There is a failure to comply with Rule of Court 14. 4. (5).

On their averments, the petitioners have been deprived of possession of valuable land in current use for agricultural purposes. If a first order cannot be granted on the present motion, there may be no effective remedy against the people in occupation of the land. Sheriff court proceedings against un-named individuals would not be competent. On the other hand, the petition may be regarded as a device which would result in an ineffective order of the court being represented to prospective respondents as both valid and effective to subject them to the jurisdiction of the court.

The question which is respectively addressed to your Lordships is whether a first order may competently be pronounced on a petition under section 46 of the 1988 Act where the identities of the prospective respondents are unknown and where service in common form cannot be effected against them?

Humbly reported by