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Scott v. Thomson & Anor [2002] ScotCS 309 (06 December 2002)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Hamilton

Lord McCluskey

XA158/01

OPINION OF THE COURT

delivered by LORD OSBORNE

APPEAL

From the Sheriffdom of North Strathclyde at Dunoon

in the cause

MRS. JESSIE SCOTT (A.P.)

Pursuer and Appellant;

against

(FIRST) COLIN THOMSON and (SECOND) FLORENCE THOMSON

Defenders and Respondents:

_______

Act: Love; Drummond Miller, W.S. (for Fyfe Murray, Greenock) (Pursuer and Appellant)

6 December 2002

Prior to 10 July 1996, the appellant was the "residential occupier" of a dwellinghouse known as Killearn Villa, 133 Victoria Road, Dunoon, Argyll, within the meaning of section 36(8)(a) of the Housing (Scotland) Act 1988. Since about March 1993, the respondents have been the owners of Killearn Villa and hence were the appellant's landlords. The respondents have a son, George Thomson, who, along with his wife, Lorraine Thomson, had formerly owned Killearn Villa. In or about March 1993, they sold the property to the respondents. Throughout the time that Killearn Villa has been in the ownership of the respondents, George Thomson has had their absolute authority to manage and administer the property as he saw fit.

On or about 6 July 1996, the appellant, along with her two younger children, went to Burghead Caravan Site in Dumfries and Galloway for a fortnight's holiday. During the afternoon of 10 July 1996, George Thomson, accompanied by a friend, entered Killearn Villa when it was unoccupied and changed the locks. He also placed a note on the front door in the following terms: "The locks on this house have been changed. Any attempt to enter this building will be unlawful. Tel. 870226." On 11 July 1996, the appellant was informed as to what had occurred, whereupon she decided to return to Dunoon, with her two younger children, which she did on 12 July 1996. On her return, she invoked the assistance of the police, with a view to being readmitted with her family to Killearn Villa. On that date, police officers saw George Thomson in connection with this matter, but he refused to allow the appellant and her family to re-enter Killearn Villa, either then or subsequently. From 12 July until 12 August 1996, the appellant and her children were accommodated at a variety of locations. On or about 12 August 1996, the appellant obtained her own council tenancy at 9 Spence Court, Queen Street, Dunoon, Argyll, which she and her children have continued to occupy. It is not disputed that, by virtue of the actions of George Thomson, which we have described, the appellant as the residential occupier of Killearn Villa was unlawfully deprived of her occupation of those premises. At no stage after 10 July 1996 was the appellant reinstated as residential occupier of the premises; nor, before the present proceedings were begun was any offer to reinstate her in those premises made by the respondents as landlords.

Against the foregoing background, the appellant has claimed damages from the respondents, in respect of her loss of the right to occupy the premises in question as her residence, in terms of section 36(1) and (3) of the 1988 Act. Such damages fall to be assessed on the basis specified in section 37 of the Act. She also claimed damages at common law from them in respect of certain items of property belonging to her which had been present in Killearn Villa as at 10 July 1996 and which, she claimed, had been damaged or lost. With this latter part of her claim, this appeal is not concerned.

Section 36(7) of the 1988 Act is in the following terms:

"In proceedings to enforce a liability arising by virtue of subsection (3) above, it shall be a defence for the defender to prove that he believed, and had reasonable cause to believe -

(a) that the residential occupier had ceased to reside in the premises in

question at the time when he was deprived of occupation as mentioned in subsection (1) above ...".

In this action, the respondents sought to invoke the defence created by this provision upon the basis that their agent, George Thomson, believed and had reasonable cause to believe that the appellant had ceased to reside in the premises in question as at 10 July 1996. After certain preliminary procedure and a proof lasting six days, by an interlocutor dated 4 May 2000 Sheriff Alistair W. Noble sustained the first plea in law for the pursuer, the present appellant, and decerned against the defenders, the present respondents, jointly and severally for payment to the pursuer of the sum of £33,000, with interest thereon at the rate of 8% per annum from the date of citation until payment. The appellant's claim for damages at common law against the respondents failed. On 30 May 2000, Sheriff Noble found both of the respondents liable to the appellant in expenses with a modification of the second named respondent's liability to nil in respect of the expenses relating to the period during which she was an assisted person.

On 8 June 2000, the present respondents marked an appeal against the interlocutors of Sheriff Noble, to which we have referred. By an interlocutor dated 22 June 2001, Sheriff Principal B.A. Kerr, allowed the appeals of both defenders, the present respondents, and recalled the interlocutors of the sheriff, dated 4 and 30 May 2000; he sustained the pleas in law for the defenders and repelled the pleas in law for the pursuer, the present appellant, and assoilzied the defenders from the craves of the initial writ. He found no expenses due to or by any party in respect of the action and the appeal procedure. The Sheriff Principal's reasons for allowing the appeals are set out in the Note appended to his interlocutor. The present appellant appealed to this court against the judgment of the Sheriff Principal on 5 July 2001.

When this appeal came before us on 12 November 2002, neither of the respondents was represented. It was explained to us that that state of affairs was understood to be the result of certain financial considerations affecting them. However, we proceeded to hear counsel for the appellant in support of the appeal. He moved us to recall the interlocutor of the Sheriff Principal dated 22 June 2001 and to restore the Sheriff's interlocutors of 4 and 30 May 2000. That would involve sustaining the pursuer's plea in law 1; all the other pleas in law would be repelled. The result would be a decree against the respondents jointly and severally for £33,000 together with interest as previously awarded; the expenses of the appeal before the Sheriff Principal were also sought.

Counsel for the appellant said that the appeal hinged on the proper construction of section 36 of the 1988 Act. After outlining the factual background to the case, which we have already summarised, counsel for the appellant submitted that the Sheriff Principal had erred in fact and in law in coming to the conclusion which he did. It would be part of the appellant's submissions that a fresh finding in fact should be made. Counsel for the appellant next drew attention to the grounds of appeal before the court. These are in the following terms:

"1. Section 36 of the Housing (Scotland) Act 1998 applies where a landlord or any person acting on his behalf unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises. Where that section applies the landlord is liable to the former residential occupier in damages assessed on the basis set out in section 37.

2. The pursuer seeks damages from her former landlords under and in terms of section 36 and 37. Her claim proceeds on the basis that the defenders' son, George Thomson, was acting on their behalf when he unlawfully evicted her. George Thomson had, at all times, the absolute authority of the defenders to manage and administer the premises as he saw fit.

3. The sheriff principal erred in holding that Parliament intended that liability under section 36 of the Housing (Scotland) Act 1988 should fall upon a landlord on account of the doings of an agent only where that landlord instigated, instructed or ratified his agent's illegitimate activities or at least connived at or had knowledge of them and not upon a landlord who was unaware of them. Reference is made to Sampson and Another v. Wilson and Others (1994) 26 H.L.R. 486 and (1997) 29 H.L.R. 18.

4. In any event the sheriff principal erred in holding that there was no evidence to show that the defenders did not know of their son's unlawful actings and did not subsequently ratify them. The evidence from the second defender demonstrated that she was made aware that George Thomson had changed the locks the same day and that she assisted in cleaning and repairing the premises."

Counsel for the appellant indicated that his submissions fell into three chapters. First, it would be submitted that, having viewed the issue as one of statutory interpretation, the Sheriff Principal had erred in construing section 36 of the 1988 Act restrictively against the background of his concern that it provided in effect for a "punitive" award. Having regard to the social mischief which the section sought to address, it ought to be construed purposively, with a view to addressing that mischief. The Sheriff Principal had sought to impute words into section 36 that were not there.

Secondly, it would be submitted that the landlords' knowledge of their agent's actings was irrelevant to the application of sections 36 and 37 of the 1988 Act. The Sheriff Principal had erred in finding that the pursuer had failed to prove her case. The landlords' knowledge was not an essential ingredient of a case under those sections. The effect of section 36, it would be submitted, was to impose strict liability. The "innocent landlord" had an escape route, which would be described.

Thirdly, it would be submitted that, on the assumption that the second branch of the submission was unsound, on a proper view of the evidence, the respondents had ratified the actions of their agent, or, in any event, those actions fell within his express authority.

In developing the first chapter of his submissions, counsel for the appellant examined in detail the provisions of section 36 of the 1988 Act. He pointed out that the heading of that part of the Act containing sections 36 and 37 - "Protection from Eviction" - indicated the mischief which Parliament had sought to remedy in these enactments. They ought to be interpreted in such a way as to give effect to their purpose, as opposed to frustrating it. Drawing attention to the provisions of section 36(6), counsel for the appellant argued that it provided an escape route for an "innocent landlord", who could avoid the liability arising from subsection (3), by effecting the reinstatement of the former residential occupier. Although that course would have been available, it was plain that reinstatement had never been an issue in the present case. Our attention was then drawn to the terms of section 36(7) of the 1988 Act. That provision had been the legal basis of the respondents' defence to the appellant's action. While that subsection provided that "it shall be a defence for the defender to prove ...", the defence had not been that the respondents personally had believed and had reasonable cause to believe the requisite facts; the defence had been based upon the proposition that George Thomson, who was not a defender, had believed and had had reasonable cause to believe those things. That position was inconsistent with the position which the respondents had taken up before the Sheriff Principal. Counsel for the appellant accepted that an agent's knowledge or belief was properly attributable to his principal. That was indeed the basis upon which the defenders' case had been conducted at the proof.

It was important to understand the underlying policy reflected in sections 36 and 37 of the 1988 Act, which was to dissuade unscrupulous landlords from seeking to obtain vacant possession of their properties by illegitimate means. This policy was also reflected in the provisions of section 22(2A) and (2B) of the Rent (Scotland) Act 1984, as amended by the Housing (Scotland) Act 1988, which created criminal offences with a similar object in mind. The word "unlawfully" used in section 36(1) of the 1988 Act possessed no technical meaning; it referred simply to any activity which was not lawful, that is to say, in accordance with law and, in particular, the means of obtaining vacant possession set forth in section 18 and Schedule 5 of the 1988 Act, which involved the obtaining of an order for possession by the Sheriff on one or more of the specified grounds. However, it had to be noted that, before the provisions of sections 36 and 37 of the 1988 Act operated, there had to be a connection between the landlord and the evicter, who had to be "any person acting on his behalf". Thus vigilante neighbours of an unsatisfactory tenant, who caused that tenant to relinquish their residential occupation would not create liability on the part of the landlord, unless their actions had been carried out "on his behalf".

It was submitted that the terms of section 36 of the 1988 Act were clear and unambiguous, although the Sheriff Principal had apparently thought otherwise. The words of the section should simply be given their plain and ordinary meaning, in accordance with the guidance given by Lord Reid in Beswick v. Beswick [1968] AC 58, at page 73. If the words of section 36(1) were given that plain meaning, the result was that the defenders and respondents would be liable in damages, since it was clear that, in the circumstances, George Thomson had been acting on their behalf. What the Sheriff Principal had done was to conclude erroneously that there was ambiguity or uncertainty in the statutory provisions and then to adopt a restrictive interpretation of them, in effect, importing language into the provision for which there was no justification, concluding that a landlord would be liable in damages only if the objectionable actions were proved to have been taken with his knowledge, or on his instruction, or with his ratification, or connivance. There was no warrant for such importation. It was to be observed that section 38 of the 1988 Act, in creating the criminal offences mentioned, made knowledge a prerequisite of guilt. Had it been intended that the operation of section 36 should be dependent on knowledge on the part of the landlord, that could easily have been provided, but it was not.

Furthermore, the importation of a requirement of knowledge on the part of the landlord into section 36(1) would drastically limited its effect and frustrate the obvious purpose of the legislation. In that connection reference was made to Robson and Halliday on Residential Tenancies, 2nd edition paragraph 6.01 to 6.10. Reference was also made to Bennion on Statutory Interpretation, 3rd edition, pages 707 to 727.

In addition, the provisions of section 36 of the 1988 Act were not as Draconian as supposed by the Sheriff Principal, if it were recognised that the liability of the landlord to pay damages might be eliminated or mitigated by reinstatement, or the offer of such. Under section 36(6) no liability arose under subsection (3) if:

"(a) before the date on which proceedings to enforce the liability are finally

decided, the former residential occupier is reinstated in the premises in question in such circumstances that he becomes again the residential occupier of them".

In addition, under section 36(6B) the amount of any damages awarded might be reduced where a landlord had offered reinstatement which offer had been unreasonably refused by the former residential occupier. The Sheriff Principal had been in error in regarding the legislation concerned as punitive in its effect. There was no question of punitive damages being awarded, only damages which reflected the gain which the landlord had unlawfully obtained by his own actions or those of a person acting on his behalf.

Counsel for the appellant next elaborated his second major submission, to the effect that the landlords' knowledge or approval of his agent's actings were irrelevant to the application of sections 36 and 37 of the 1988 Act. Putting the matter in another way, the Sheriff Principal had erred in finding that the pursuer had failed to prove her case. The essential ingredients of that case had been established. In particular, there was no dispute that (1) the pursuer had been a residential occupier, within the meaning of the 1988 Act; (2) she had been unlawfully evicted by the defenders' son, who was plainly acting on their behalf at the material time; (3) George Thomson, as appeared from finding in fact 13 made by the Sheriff, had had the defenders' "absolute authority to manage and administer the property as he saw fit"; (4) the defenders had failed in the defence advanced on their behalf under section 36(7) of the 1988 Act; and (5) an award of damages of £33,000 was appropriate, in terms of the statutory provisions and the undisputed evidence on quantum of damages. Having regard to all of the foregoing features, it was clear that the pursuer should succeed.

Counsel for the appellant next examined the judgment of the Sheriff Principal in detail. He had erroneously concluded that, because the pursuer had failed to prove certain of her averments, including averments about the defenders' knowledge, her case should fail. That was an erroneous conclusion since the pursuer had averred more than was necessary to succeed in obtaining the remedy sought.

Counsel for the appellant next examined the Sheriff Principal's treatment of the relevant authorities. It appeared from page 67 and the following pages of the appeal print that the Sheriff Principal had declined to follow the only reported case which was relevant to the issue involved, Sampson and Another v. Wilson and Others (1994) 26 H.L.R. 486 and [1996] Ch. 39. The judgment of Judge Rodger Cooke, sitting as a judge of the Chancery Division of the High Court of Justice was pertinent to the issue which the Sheriff Principal had to decide and should have been followed by him. It was evident from the report of the case in the Court of Appeal that Sir Thomas Bingham M.R. had seen no reason to disapprove of Judge Cooke's interpretation of the equivalent English legislation. The Sheriff Principal should have followed the approach there set forth. In adopting the approach which he did, the Sheriff Principal had embarked upon a process of statutory interpretation where no ambiguity existed and had misdirected himself as to the effect of the legislation. He also appeared to have misunderstood the policy which underlay that legislation, concentrating on consideration of whether the damages involved had been necessary to compensate the former residential occupier, as opposed to recognising that they reflected the profit which the defenders had obtained as a result of the unlawful deprivation of that occupier of his occupation. Furthermore, the Sheriff Principal had ignored the protection afforded to the "innocent landlord" by the provisions in section 36 of the 1988 Act relating to reinstatement. It also appeared that the Sheriff Principal had overlooked the possibility that an "innocent landlord" might have a claim in delict against someone who had acted on his behalf wrongfully, creating a liability in him to pay damages.

On the assumption that the court was not persuaded of the soundness of the foregoing submissions, counsel for the appellant turned to elaborate his third major submission, to the effect that there was sufficient evidence before the Sheriff to support a finding in fact that the defenders had ratified the actions of George Thomson, or, in any event, that those actions fell within his actual authority as an unfettered agent. A further finding in fact would require to be made if this submission were to be sustained. In connection with this submission, counsel for the appellant relied upon Bowstead and Reynolds on Agency, 17th edition, page 54, Article 13. It was submitted that the law of agency might bear upon the delictual liability of the principal for the acts of an agent. It was accepted that there was some level of factual uncertainty as to the character of the defenders' ownership of the property in question. However, the proof had been conducted upon the basis that the defenders could be treated as one as regards their ownership. It was contended that the same approach should be followed in this appeal. The appellant's position was that the ratification had been effected by the second named defender, but that those actions had the effect of ratifying George Thomson's actions on the part of both defenders. In this connection reference was made to Bowstead and Reynolds on Agency at pages 57 to 69, Articles 14 to 17. Ratification of the actions of an agent could occur regardless of whether the actions were lawful or unlawful. Furthermore, the second defender had had sufficient knowledge of the circumstances to be able to ratify the actings of George Thomson.

Counsel for the appellant next drew our attention to a series of passages in the transcript of evidence at the proof which he contended demonstrated ratification by the second named defender of the relevant actings of George Thomson. It was evident from these passages that the second named defender had accepted the situation created by George Thomson in changing the locks on the property. It was clear from the evidence that the second defender had known what had happened, when it had happened and why it had happened. The defence to the present action had been advanced on the basis of her own knowledge. These matters had not been in controversy at the proof. It had only been before the Sheriff Principal that a new defence of lack of authority had been canvassed. In all the circumstances it ought to be found that the actions of George Thomson had been ratified by the second named defender on behalf of both defenders.

Counsel for the appellant then made clear what additional findings in fact he contended should be made. He submitted that, at the end of the existing finding in fact 21, the following words should be added:

"That evening the second defender spoke to George Thomson. He told her that he had changed the locks at Killearn Villa because he had found the premises empty."

In addition, it was submitted that there should be inserted as the opening sentence of finding in fact 22 the following:

"On 11 July 1996 the second defender visited Killearn Villa with George Thomson and noted its condition."

Furthermore, it was submitted that an additional finding in fact and law should be inserted as follows: "By their actions the defenders ratified the actions of George Thomson". In response to questions by the court, it was submitted that the first named defender was a "joint proprietor", who was fixed with the actings of the second named defender. In any event, the steps taken by George Thomson had been taken within his actual authority as agent, as appeared from finding in fact 13. In addition, it was accepted that the fact that both defenders had advanced the same defence under section 36(7) of the Act of 1988 could be seen as a ratification by them of the actions of George Thomson.

At the outset of the appeal hearing before us, we were informed that, for reasons which were not made completely clear, the defenders and respondents, though holding the judgment of the Sheriff Principal, were not to be represented, a situation which caused us some concern, involving as it did the lack of any contradictor of the appellant's arguments. In these circumstances we gave some consideration to the possibility of the appointment of an amicus curiae in terms of the Memorandum of Understanding between the Lord President of the Court of Session and the Lord Advocate, dated 23 July 1999. Before reaching a conclusion on that matter, we decided that we should hear the arguments advanced on the appellant's behalf. Having done so, in the light of the circumstances of the case and the comprehensive scope of those arguments, we decided on balance against seeking such an appointment.

We think that it is appropriate to make clear that, while the proof conducted in this case was focused on the factual issues arising from the defence stated by the defenders under section 36(7)(a) and did not involve any consideration of the issue which was raised for the first time before the Sheriff Principal, the resolution of which constituted the ground of his decision, no argument was addressed to us to the effect that the Sheriff Principal had erred in entertaining the question raised for the first time before him, a question which we consider to be one of both fact and law. That being so and however regrettable it might be that that issue was not ventilated before the Sheriff, we proceed now to consider the merits of the issue which the Sheriff Principal decided.

It appears to us that the issue raised in this appeal concerns the application to the facts of the case of section 36(1) of the 1988 Act, which is in these terms:

"This section applies if, at any time after 3 December 1987, a landlord or any person acting on his behalf unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises."

If the section applies, by virtue of subsection (1), then the consequences of its application are provided for in subsection (3) and in section 37. Section 36(3) provides:

"Subject to the following provisions of this section, where this section applies, the landlord shall, by virtue of this section, be liable to pay to the former residential occupier, in respect of his loss of the right to occupy the premises in question as his residence, damages assessed on the basis set out in section 37 below."

It is sufficient to observe in the present context that section 37 sets forth the measure of damages to be applied in such a case and which was applied by the Sheriff here. Reverting to the terms of section 36(1) of the Act, before us, it was accepted that the word "unlawfully" which was not the subject of any statutory definition, simply meant not in accordance with the statutory machinery provided for the recovery of possession of residential premises occupied by a "residential occupier". The expression "residential occupier" is defined in section 36(8)(a) of the Act; there has been no dispute in this case that the pursuer fell within the category of a "residential occupier" as so defined at the material time. Furthermore, there is no dispute in this case that the son of the defenders, George Thomson, was the person who, on 10 July 1996 took the action which had the effect of unlawfully depriving the pursuer of her occupation of the premises. In these circumstances, as we see it, the issue in the case is whether George Thomson was "any person acting on (the defenders') behalf", within the meaning of section 36(1). In our opinion, that question is a question of both fact and law, the legal issue being the meaning of the words "acting on (the defenders') behalf".

It appears from page 62 and following pages of the appeal print that the Sheriff Principal regarded that statutory language as involving some ambiguity or uncertainty. Upon that view he proceeded to embark upon an exercise of interpretation of the expression used. We do not share the concerns of the Sheriff Principal in that regard. In our opinion, the expression "acting on his behalf" is clear and unambiguous, although its application to the circumstances of a particular case may present some difficulties. Accordingly, we consider that the exercise of interpretation undertaken by the Sheriff Principal was misconceived and unnecessary. In our opinion, the Sheriff Principal's approach led him into the error of reading into the provisions of section 36(1) words which do not reflect the intention of Parliament, involving the insertion of a proviso that section 36 would apply to a landlord only where that landlord instigated, instructed or ratified his agent's illegitimate activities, or at least connived at or had knowledge of them and would not apply to a landlord who was unaware of them, as appears from the Sheriff Principal's observations at page 71.

We are confirmed in the view which we have formed of the language of section 36(1) of the Act by the decision in Sampson and Another v. Wilson and Others, to which we were referred. At first instance, it was held by Judge Roger Cooke that the words in section 27(1) of the Housing Act 1988 "any person acting on behalf of the landlord in default" encompassed anyone who was acting, either as direct agent of the landlord or as someone employed to do a particular act, or, as in this case, to undertake the management of the property with no particular fetter on that management. In view of the similarity of the words of that enactment to the words used in section 36(1) of the corresponding Scottish legislation, we consider that the decision should be accorded respect. At page 500 of the relevant report, Judge Cooke observed that section 27 of the Act involved "introduced what is in effect a new statutory tort of unlawful eviction into the law". He went on to state that:

"The essence of the tort is the landlord, or someone acting on his behalf, unlawfully depriving the residential occupier of the whole or part of the premises.

The expression 'agent' as such is avoided, it was suggested to me - and this may be right - because it is desirable to cover the acts of people who may be independent contractors acting quite innocently but instructed with evil intent, people who would not necessarily be agents at law. It is fair first to consider what acting on behalf of the landlord actually means."

Continuing at page 501 he says:

"In one way or another it might be said that the expression was otiose because on ordinary principles of vicarious liability a landlord who imposes a servant or agent is liable, at least within the scope of their authority, if they cause harm to his tenants and their acts are taken to be his acts. But the words have been inserted and sense must be given to them. The simple question is whether they have a restricted meaning of a person who is carrying out the landlord's instructions in evicting tenants, i.e. the eviction is an eviction on behalf of the landlord, or the wider meaning of someone who is in general terms acting on behalf of the landlord who may or may not have instructions to molest the tenant or even realise he is molesting him but does so; for example the builder who is instructed to take the roof off but is dismissed before he can put it on again.

The answer to this question may be critical. It seems to me that it is intended to be as broad as possible so as to encompass anyone who is doing what he is doing, either as direct agent or as someone employed to do a particular act, or, as it seems to me and critically here, to undertake the management of the property with no particular fetter on that management.

There may be a further point of the liability of the landlord for any kind of person acting for him, whether directly instructed to commit the tort or not. It is this. The measure of damages under section 28 is directed to expropriating the profit which has accrued to the landlord as a result of the tort. The landlord has profited whether or not he directly authorised the tort. If the tort gives no profit to the landlord - a rare but possible event - the landlord pays no damages."

The case was subsequently heard in the Court of Appeal, in which Sir Thomas Bingham M.R. delivered the leading judgment. At page 47 of the relevant report he said this:

"If one asks the question 'Why has Mr. Clarke found himself liable for damages in tort, and under the Housing Act 1988?' the answer that one finds is not, on the evidence, as a result of any instructions that he, Mr. Clarke, gave, or any course of action which he inspired, or because of any conduct of which he was aware. It appears that he has become liable because he went away leaving the house in the hands of Mr. Wilson [the agent], whose unfortunate choice of a sub-agent appears to have lain at the root of the ensuing problems."

At page 49, speaking of the relevant legislation, he continued:

"The second point which weighs with me is section 28, in which the formula for compensation is provided. This formula is, in my judgment, very apt to prevent the landlord profiting from his 'Rachmannite' activities, and so to expropriate his notional gain."

It appears to us quite plain that, in the Court of Appeal, the Master of the Rolls tacitly approved of the view taken by Judge Roger Cooke of the effect of section 27 of the Act under consideration. Furthermore, it appears from his observations just quoted that the purpose of the legislation is clearly indicated. It is to prevent a landlord from profiting from the fact of an unlawful eviction effected on his behalf. Such a profit would, of course, be potentially available whether the eviction was carried out with the landlord's knowledge, or on his instructions, or not. For this reason, it appears to us that the approach taken by Judge Roger Cooke to the legislation involved was in accordance with the policy of the Act. We have no reason to suppose that the policy underlying the equivalent Scottish legislation is any different.

In connection with the identification of the proper approach to section 36(1) of the 1988 Act, in our opinion, it is instructive to consider the provisions of section 22(2A) of the Rent (Scotland) Act 1984, inserted into that Act by section 38 of the former Act. It provides:

"Subject to subsection (2B) below the landlord of any premises or an agent of the landlord shall be guilty of an offence if -

(a) he does acts likely to interfere with the peace or comfort of the

residential occupier or members of his household; or

(b) he persistently withdraws or withholds services reasonably required for

the occupation of the premises in question as a residence,

and (in either case) he knows, or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises."

In this enactment one finds references to the actual knowledge or constructive knowledge of the landlord appearing in the definition of a criminal offence. Had it been the intention of Parliament, in enacting section 36(1) of the 1988 Act, to make the liability of the landlord dependent on his knowledge of the actings concerned, it would have been a simple matter and consistent with what had been done in section 22(2A) of the 1984 Act for it to employ similar language to that found in that provision. Yet that was not done.

At pages 70 and 71 of the appeal print, the Sheriff Principal sought to derive assistance for his view by reliance upon the wording of section 36(7) of the 1988 Act. In relation to that he observes:

"It cannot have been the intention of Parliament to provide a defence which is available only to the landlord who has some direct involvement in and knowledge of the unlawful eviction but not available to the landlord whose agent effects an unlawful eviction without consulting the landlord or in circumstances which leave the landlord in a state of ignorance and unaware of the agent's actings."

In taking this view, it appears to us that the Sheriff Principal may well have overlooked the protection for what might be described as the "innocent landlord" afforded by the provisions of section 36(6) and (6B) of the 1988 Act relating to reinstatement, or the effect of an offer to reinstate. It appears to us that these provisions substantially ameliorate the problem which the Sheriff Principal perceived in the passage of his judgment which we have quoted.

Moreover, while we have not had the benefit of full argument on the point, we are not satisfied that, where section 36(7) contains the words "he believed, and, had reasonable cause to believe", the proper interpretation of those words is that such belief must, as the Sheriff Principal supposed, necessarily be personal to the landlord. While that might appear prima facie to be the natural reading, given the immediately prior reference to "the defender" (on whom alone there can, it seems, be any liability), it is difficult, if one reads the subsection as a whole, to conclude that the relative belief should be so restricted. In particular, the defence under section 36(7) is also available where the belief is:

"(b) that, where the liability would otherwise arise by virtue only of the

doing of acts or the withdrawal or withholding of services, he had reasonable grounds for doing the acts or withdrawing or withholding the services in question".

That is a reference back to the harassment provisions under section 36(2)(b). The harassing conduct there referred to can clearly include such conduct by a person acting on the landlord's behalf. Where that is so, the person referred to as "doing the acts" etc. in section 36(7)(b) is clearly such a person. In such circumstances the pronoun "he" in sub-paragraph (b) would appear to refer to that person. That may suggest that the same pronoun in the opening words of the subsection may, in appropriate circumstances, embrace a person acting on the landlord's behalf.

Having formed the opinion which we have as to the effect of section 36(1) of the 1988 Act, we turn now to the associated question of fact, which is whether George Thomson, at the material time was "acting on ... behalf" of the defenders and respondents. In finding-in-fact 13 made by the Sheriff, he has found that

"Throughout the time that the subjects at Killearn Villa have been owned by the defenders, George Thomson has had their absolute authority to manage and administer the property as he saw fit".

This finding clearly reflects the evidence given by George Thomson himself regarding his own position, to be found at pages 422 to 423 of the transcribed evidence heard at the proof. Having regard to that finding in fact it appears to us that George Thomson could have been acting at the material time on behalf of no one but the defenders. A very similar situation arose in Sampson and Another v. Wilson and Others. Accordingly it follows that section 36 is applicable to the situation under consideration and that the liability created by section 36(3) attaches to the defenders. In these circumstances we consider it appropriate to make a further finding-in-fact-and-in-law to reflect the conclusion which we have reached, in the following terms:

"In taking the action which he did on 10 July 1996 and unlawfully depriving the pursuer of her occupation of the premises, George Thomson was acting on behalf of the defenders."

In all of these circumstances, we shall allow the appeal, recall the interlocutor of the Sheriff Principal of 22 June 2001 and restore the Sheriff's interlocutors of 4 and 30 May 2000. In addition, we shall award the pursuer her expenses of the appeal before the Sheriff Principal against the defenders.

Having reached the view which we have, it is unnecessary for us to express any opinion upon the third main submission advanced on behalf of the pursuer, which proceeded upon the basis that the Sheriff Principal's view of the effect of section 36(1) of the 1988 Act was correct.