Scottish Court of Session Decisions

[1] The petitioner Derek Cooney formerly resided at 53 Armour Drive, Summerhill, Dumfries, where he was a tenant of the respondents, Dumfries & Galloway Council. After a history of dispute and differences between the petitioner and the respondents, the respondents raised a summary cause action against the petitioner, in Dumfries Sheriff Court. They craved the ejection of the petitioner from the house, and payment of arrears of rent. After a number of adjournments, a diet of proof was fixed for 15 June 2000. On that date, the petitioner did not appear, and the sheriff granted the decree craved. The petitioner appealed to the sheriff principal. The appeal was heard on 31 August 2000. The sheriff principal refused the appeal. The petitioner thereafter moved the sheriff principal in terms of rule 84(1) of the Summary Cause Rules, Sheriff Court 1976, to grant a certificate, and in terms of an interlocutor dated 13 October 2000 the sheriff refused that motion.

[2] In this petition, the petitioner asks the court in exercise of its powers under the nobile officium to "declare the decision of the sheriff dated 15 June invalid and/or to allow an appeal to the Court of Session, or to reduce the decree". The respondents, in addition to a general plea to the relevancy of the petition, have a plea in the following terms:

Counsel for the respondents asked us to sustain that plea.

[3] Mr. Cooney's averments cover a large number of matters, as to the general background and, more particularly, as to the reasons for his not being present at court on 15 June 2000. They go on to cover the circumstances in which his appeal to the sheriff principal was refused, and the history of events thereafter. We shall return to some of these; but at this stage we should record that after the sheriff had refused the appeal and also refused the certificate which the petitioner sought, the sheriff's decree of 15 June 2000 was extracted on 18 October 2000. In pursuance of that extract decree of ejection, the petitioner was ejected from the house on 3 November.

[4] What Mr. Cooney wants is, by one means or another, to have the decree which was pronounced on 15 June and extracted on 18 October 2000 set aside. It appears that he has done all he can to achieve that end by using appeal procedures, and that it cannot be said that he has failed in any way to attempt to obtain a remedy by appeal. That being so, the need to have exhausted other remedies, before seeking the equitable remedy of reduction, has evidently been met. The respondents' position is, accordingly, that if there are, as Mr. Cooney alleges, grounds for reduction, an action of reduction would be the appropriate procedure for seeking reduction. And that being so, recourse to the nobile officium is inappropriate. Counsel for the respondents referred in particular to Central Motor Engineering Company and Others v. Gibbs 1917 S.C. 490. In that case, Lord Mackenzie at page 493 said this:

Counsel for the respondents submitted that the position in the present case was exactly the same. If Mr. Cooney thought that he could successfully maintain the grounds stated in the present petition as entitling him to set aside the decree, it was open to him to take the appropriate steps by bringing an action of reduction.

[5] Mr. Cooney's response to this line of argument took a number of forms. He was not merely seeking reduction, he was seeking to reopen appeal procedures. Not only had the sheriff principal erred in refusing the appeal, and in refusing the certificate. The sheriff clerk had refused to allow an appeal without a certificate, whereas the petitioner believed that an appeal could proceed without such a certificate. These circumstances were extraordinary, and justified recourse to the nobile officium. Moreover, in relation to reduction, he submitted that when he had embarked upon the present proceedings, the decree had not yet been extracted, and an action of reduction would only be appropriate in relation to a decree which had been extracted. That being so, he should be allowed to continue upon an avenue which had been the appropriate one when he first set out upon this attempt to have the decree set aside. He cited Royal Bank of Scotland plc v. Gillies, 1987 S.L.T. 54 as an example of reduction being granted in a petition to the nobile officium. It is furthermore to be noted that the petitioner, having been declared a vexatious litigant in terms of the Vexatious Litigants (Scotland) Act 1898, requires permission before proceeding with any action or petition. He received the necessary permission in relation to the present petition to the nobile officium on 2 November 2000, having applied for it before the date of extract. He avers that the respondents knew that their decree was being challenged when they forced entry to his home on 3 November 2000. In contending that he should be allowed to proceed by means of this petition, Mr. Cooney also relied upon the fact that the decree had been extracted "early": a decree should not be extracted for 14 days, and this extract had been obtained only a few days after the sheriff principal's final interlocutor.

[6] We are not persuaded that the extract was obtained "early". The extract in question is an extract of the sheriff's decree of 15 June 2000. Extract was delayed by the appeal procedures, but the required 14 days had long since elapsed, and extract could properly be obtained as soon as the appeal proceedings were at an end. The argument in relation to certificates is likewise without foundation: it is clear that the certificate which Mr. Cooney sought was an essential prerequisite to any further appeal, in terms of section 38 of the Sheriff Courts (Scotland) Act 1971. That section provides inter alia that in the case of any summary cause other than a small claim "an appeal shall lie to the Court of Session on any point of law from the final judgment of the sheriff principal, if the sheriff principal certifies the cause as suitable for such an appeal, but save as aforesaid an interlocutor...of the sheriff principal in any such cause shall not be subject to review". The contention that the decree was not yet extracted, so that a petition to the nobile officium was the only competent way of seeking reduction, is misconceived. When the petition was lodged, on 2 November 2000, the decree had been extracted. An action of reduction would have been competent at that time. The earlier procedures for seeking permission are not, in this respect, in point. And as regards Royal Bank of Scotland v. Gillies, that was a case in which there were no grounds upon which any action of reduction could have been brought. That is not the position here. It is not for us to consider the grounds averred by Mr. Cooney as a basis for reduction. But if he were to be right that they warrant reduction, then it is in an action of reduction that they should be averred. The fact that Mr. Cooney is a vexatious litigant, and would require permission for any such action, does not in our opinion alter the fact that such an action is the appropriate mode of proceeding. It is available, notwithstanding the fact that for Mr. Cooney, as a vexatious litigant, its availability is conditional upon permission.

[7] In the whole circumstances, we see no justification for recourse to the nobile officium. The respondents' plea is in our opinion well-founded. We sustain it, and dismiss the petition.