Scottish Court of Session Decisions

This is a petition by Oliver and Son Ltd. who seek service upon persons occupying, without the permission of the petitioners, an area of approximately 3.5 acres of ground which the petitioners own at Newmart Road, Edinburgh. According to their averments, the area is in grass and is used by the petitioners for the grazing of animals in connexion with their business as livestock auctioneers at an address in Newmart Road. Apparently as the result of a direction which the Lord Ordinary (Lord Penrose) had himself given about the handling of cases of this kind, the petition came before him on counsel's motion for a first order for service. Having heard counsel, the Lord Ordinary reported the case to the Inner House.

The petitioners aver that during the weekend from 21 to 24 May 1999 a group of people, whose identities are unknown to the petitioners, entered the area of ground through a hole in the perimeter fence and took possession of the ground. It is said that they have positioned vehicles and about seven caravans around the area and have set up camp. The petitioners aver that the people concerned had, and have, no permission to enter or occupy the area and that, despite being asked to leave, they refuse or at least delay doing so. In particular the petitioners say that "Had the Petitioners known that the persons intended to occupy the said area, they would have sought interdict to restrain them from doing so."

The petitioners go on to make a number of averments about possible damage to the property and conclude by seeking an order ordaining the persons unlawfully occupying the area without their permission to remove themselves, their vehicles and other goods and gear from the area. The statement of facts in the petition ends with a statement that the application is made under Section 46 of the Court of Session Act 1988. The exact remedies sought by the petitioners and the steps in procedure which they envisage can be seen from the prayer of the petition, which is in these terms:

It is in these circumstances that in his report to us the Lord Ordinary asks whether:

At the hearing to consider the Lord Ordinary's report, we had the advantage of submissions, which were both apposite and succinct, from Mr. Sandison. He had also appeared in the Outer House and was able to explain why he had chosen to proceed by petition. He informed us that, although there were no reported cases, petitions of this kind had quite frequently been before the court up until 1996; in those petitions the court had not only granted orders for service but other orders as well. In 1996, apparently in the light of the Report of the Scottish Law Commission on Recovery of Possession of Heritable Property (No. 118, 1989), the Rules of Court had been amended and Chapter 45A had been inserted. The Chapter was entitled "Actions of Removing" and Rule 45A.2 dealt in particular with the situation where, as in the present case, the name of a person in occupation of land was not known and could not reasonably be ascertained. After the introduction of Chapter 45A, instead of using petitions, counsel had tended to draw actions of removing under the procedure laid down there. But, at a hearing which took place on 25 May 1999, in Marco's Leisure Ltd. v. The Occupiers of the subjects known as the Corn Exchange, New Market Road, Edinburgh (unreported), Lord Penrose questioned the competency of a simple action of removing in the Court of Session, even having regard to the inclusion of Chapter 45A in the Rules. We have looked at the minute of proceedings in Marco's Leisure which records a suggestion that Rule 45A.2 might be ultra vires and also indicates that the court allowed the motion for interim orders to be dropped at the bar. In his report in the present case the Lord Ordinary notes that the points which he had raised in Marco's Leisure were not resolved. Mr. Sandison acknowledged that, because of the Lord Ordinary's known doubts about proceeding with an action of removing, the decision had been taken in this case to revert to the procedure by petition which had been in use before 1996.

We were given details of the Lord Ordinary's doubts about the competency of an action of removing only to explain why counsel had chosen to draft this particular form of petition. Mr. Sandison did not ask us to determine, in the context of this report, whether an action of removing without any other conclusion would be competent. Nor is it necessary for us to do so since that question is severable from the question of the competency of this petition. Even if a pure action of removing were incompetent, any petition which would otherwise be competent in terms of the Rules and statutes governing the procedure of the court would not be rendered incompetent simply because it might in substance have the same effect as an action of removing.

In his report the Lord Ordinary refers to the averment that the petitioners would have sought interdict to restrain the persons in question from occupying the area of land, if they had known that they intended to do so. He points out that this averment is apparently designed to set the scene for the petitioners seeking a remedy in terms of Section 46 of the Court of Session Act 1988 which provides:

The Lord Ordinary goes on to state, under reference to Lord Advocate v. The Scotsman Publications Ltd. 1989 SC (HL) 122, that it would not have been competent for the petitioners to seek such an interdict since they have at no time known the identities of the people concerned. He adds:

In addressing this court Mr. Sandison explained that, while he had accepted that the petitioners were at no time aware of the identities of the people on the land, he had not intended to convey to the Lord Ordinary any impression that he accepted that the requirements of Section 46 could not be satisfied. In any event, counsel's clear position before this court was that the petitioners were entitled to the Section 46 remedy even though they did not know the names of the persons on their land.

The Lord Ordinary's reasoning starts from the premise that it would not have been competent for the petitioners to seek an interdict against the individuals occupying their land because they did not know their identities. Since the petitioners could not have obtained an interdict, he reasons, they cannot obtain a remedy under Section 46. Given the terms of Section 46, the second stage in the Lord Ordinary's reasoning must be correct: if it would not have been competent for the petitioners to seek an interdict against the individuals occupying the land, then it would not be open to them to obtain a remedy under Section 46. The key question therefore is whether the Lord Ordinary was correct to hold that it would have been incompetent for the petitioners to seek an interdict against the occupation of their land by these individuals.

In support of his view that it would have been incompetent, the Lord Ordinary cites Lord Advocate v. The Scotsman Publications Ltd. 1989 SC (HL) 122. The judgments in that case refer back to Pattison v. Fitzgerald (1823) 2 S. 536 (N.E. 468) and we therefore begin by examining that case. The report is short but we have had an opportunity to consult the Session Papers which make the circumstances clearer. It emerges that in 1813 the officers of the Burgh Court in Glasgow - which at the time exercised a fairly substantial jurisdiction - brought an action in their court to establish their exclusive right to execute diligences emanating from the court. The proceedings can be identified from the Minute Book as McPherson v. Smith. We infer that the messengers-at-arms had been encroaching on the officers' domain and, in the action, the officers sought to protect their privilege by obtaining an interdict. In the result the Burgh Court pronounced two interlocutors on 15 June and 29 July 1813. These included a declarator to the effect that the messengers-at-arms had no right to execute any writs issuing from the court except in one specific situation. The court's orders ended in this way:

The defenders brought the case under review of the Court of Session by a bill of suspension and, by a decree of this Division of 20 May 1815, the letters and charge were found orderly proceeded, but the interlocutor continued by providing that the court:

In 1821 the Burgh Court officers of the day formed the view that Thomas Pattison, an auctioneer in Glasgow, had on several occasions executed warrants of diligence from the Burgh Court. Fitzgerald and a number of the other officers therefore brought an application in the Burgh Court seeking inter alia that the court should find that Pattison had "violated the interdiction and prohibition before-mentioned" - by which they meant the interdict pronounced by the Burgh Court. Pattison did not resist that aspect of the application but the officers pressed on with their conclusions for a fine and damages. The court assoilzied Pattison from the conclusion for the fine and damages but eventually made an award of expenses against him. The officers extracted the decree for expenses and charged Pattison, who then brought a bill of suspension of the proceedings in the Court of Session. According to the report, the ground of the suspension was that, not being one of the individuals against whom the interdict had been granted, it was incompetent to charge Pattison with a breach of it. The Lord Ordinary (Pitmilly) "in respect the original application to the Magistrates was incompetent, suspend[ed] the letters and charge simpliciter." The officers presented a reclaiming petition, but the Second Division adhered.

From the narrative which we have given, partly based on the Session Papers, it appears that, as Pattison argued, when this Division considered the suspension in 1815, they took the view that the interdict in the form granted by the Burgh Court had been incompetent. They therefore substituted a restricted interdict which applied only to named individuals. Despite this, in 1821 the officers sought to rely on the Burgh Court interdict. In any event in Pattison Lord Pitmilly and the Second Division certainly considered that it had been incompetent for the officers to make the original application in 1813 seeking an interdict against "all others, except the town-officers, from executing any sort of diligences ...." As Mr. Sandison submitted, Pattison is distinguishable from the present case. In Pattison the officers were granted an interdict against persons who had not been parties to the proceedings. Some years later their successors in office took proceedings against Pattison for breach of the interdict, even though he had not been a party to the original proceedings and could well have been unaware of the existence of the interdict. In this case, by contrast, if the petitioners had become aware of the intention of the group of people to occupy their land, they would have sought interdict in proceedings which would have been served on them. If the court had granted interim interdict, then, after the interim interdict was served, the persons concerned would have had the same right as any other person served with such an order to apply to the court for its recall. The position would therefore have been completely different from the situation in Pattison.

Mr. Sandison submitted that Scotsman Publications could also be distinguished. There the Lord Advocate had sought an interdict against The Scotsman and its editor

certain confidential information. As in Pattison, the court in Scotsman Publications was being asked to pronounce an interdict against persons who would not have been parties to the proceedings and on whom indeed the petition for interdict would not have been served. The contention for the Lord Advocate was that it was sufficient if the third parties had had notice of the interdict.

In Scotsman Publications both the Lord Ordinary and the Second Division applied the decision in Pattison. The House of Lords did not express a view on the question of the form of the conclusion for interdict. As we have explained, Pattison is distinguishable from the present case. We are equally satisfied that the decision in the Scotsman case is distinguishable, for very much the same reasons. While it is unnecessary to determine the exact scope of the Scotsman decision, the underlying reasoning in both cases appears to be that it is incompetent for the court to pronounce an interdict on persons upon whom the proceedings are not served and who therefore have no opportunity either to resist the application for interdict or to move for its recall. In reaching their decision in Scotsman Publications the Second Division placed some weight on the fact that a conclusion for interim interdict in the terms in question would have made any caveat ineffective. In the present case it is also true that a conclusion for interim interdict against identified but unnamed individuals would have meant that any caveat lodged by one of the individuals concerned would not have been effective. The objection is more striking in a case, such as Scotsman Publications, where publishers and broadcasters, for instance, might well have lodged caveats. In the present case, however, there is little or no substance in the objection since it is very unlikely that the people in question would have lodged a caveat. In any event, even if they had done so, the only prejudice which they would have suffered would have been to find themselves in precisely the same position as the vast majority of people, who do not lodge a caveat: if so advised, they could have moved the court to recall the interim interdict.

For these reasons we are satisfied that the decisions in Pattison and Scotsman Publications are not authority for holding that it would have been incompetent for the court to grant an interdict or interim interdict against the persons concerned occupying the petitioners' land. We therefore reject that argument against the competency of the present proceedings.

We would go further. The decisions which we have discussed both turn on the need for a party to give notice of the proceedings to those against whom an interdict is to be sought. Here, however, what the court is being asked to do is to grant a first order for service, which is specifically designed to bring the present proceedings to the attention of those against whom the petitioners intend to seek an order under Section 46. Moreover, as Mr. Sandison emphasised, the petitioners are not asking the court to grant any remedy against those persons before the petition has been served on them and before they have thus been made aware, not just of the proceedings, but also of the nature of the orders which the petitioners would ultimately seek. The persons served with the petition will have every opportunity to enter the process and to resist the making of any further order, if they so desire.

It is, of course, true that the petitioners cannot at present specify the names of the individuals who are said to be on their land. As Mr. Sandison pointed out, however, there is a distinction between an ability to name an individual and an ability to identify that individual. Admittedly, the petitioners could not name the persons concerned but they were able to identify them as those "occupying the said area without the permission of the Petitioners". That was, he said, sufficient identification for the purposes of service. The remaining terms of the prayer made clear that any subsequent orders would be sought only against the persons upon whom service had been effected. The messengers-at-arms who served the petition would hand copies to the individuals whom they found occupying the land and they would record what they had done. They might also take photographs of the people on the land and of the steps which they took to serve the petition. If in due course a dispute arose as to whether a particular individual had been served, then the messengers should be in a position to give evidence about the matter.

At present we do not need to examine in detail the possible means of identifying the individuals at any later stage in the proceedings. It is enough that we are satisfied that in principle the court can make an order for service on identifiable individuals, even though those individuals are not named. The terms of Rule 45A 2 itself show indeed that there is no objection in principle. If it were otherwise and the court were powerless to act where individuals could not be named, we should be handing to those who successfully concealed their identity a weapon with which to wreak injustice. In the present case we take the view that the petitioners have identified, sufficiently and to the best of their ability, the persons upon whom service is to be made.

Mr. Sandison drew attention, however, to the Lord Ordinary's reference to Rule of Court 14.4(5). That rule and Rule 14.4(6) provide:

The Lord Ordinary points out that, since the petitioners do not know the names of the persons upon whom they seek service, they cannot set out their names, addresses and capacity in the schedule to the petition. Mr. Sandison submitted that in terms of Rule 2.1 the court could relieve the petitioners from the consequences of failing to comply with the provisions of Rule 14.4(5). The "consequences" in this case would, he said, be that because of the defect in form the court would normally refuse to grant a first order. If the court were satisfied that it was not possible for the petitioners to comply with the terms of Rule 14.4(5), then the court could relieve the petitioners of these consequences and grant a first order for service. It appears to us that the provision in the rules, that the names, addresses and capacities should be set out in a schedule which should be referred to in the prayer, is ancillary to the question of the identification of the persons upon whom service is to be sought in terms of the prayer of the petition. If the court is satisfied - as we are - that the persons concerned have been adequately identified and that the petitioners are not in a position to give the information mentioned in the rule, then it is consistent with the interests of justice that the court should grant a first order for service despite the failure to comply with the terms of the rule. We are reinforced in this view by noting that, as Rule 14.4(6) indicates, the court has the rather more drastic power to dispense with service altogether in appropriate cases.

In the whole circumstances of this case we are satisfied that the Question posed by the Lord Ordinary should be answered in the affirmative. We also consider that it would be appropriate, in order to avoid any unnecessary delay, for this court itself to grant a first order for service. We shall accordingly grant that order and remit to the Lord Ordinary to proceed as accords.