Scottish Court of Session Decisions

Cooney v. Dumfries and Galloway Council [2003] ScotCS 132 (04 April 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Macfadyen Lady Smith Lord Weir	P821/01 OPINION OF THE COURT delivered by LORD MACFADYEN in RECLAIMING MOTION in petition of DEREK PATRICK COONEY,- Petitioner and Reclaimer; against DUMFRIES AND GALLOWAY COUNCIL, Respondents; for Reduction and Interdict _______

Act: Party (Petitioner and Reclaimer)

Alt: N.R. Mackenzie; Anderson Strathern, W.S. (Respondent)

4 April 2003

Introduction

1. In this reclaiming motion the petitioner seeks to bring under review an interlocutor of 19 March 2003 by which the Lord Ordinary (Lord Wheatley) refused his motion for interim interdict against sale by the respondents of a house owned by them and formerly tenanted by the petitioner.

Procedural Background

2. The petitioner is the subject of an order made under section 1 of the Vexatious Actions (Scotland) Act 1898 ("the 1898 Act"). As a result he may not institute legal proceedings unless he obtains the leave of a Lord Ordinary. In order to obtain such leave in respect of a particular proceeding, he must satisfy the Lord Ordinary "that such legal proceeding is not vexatious, and that there is prima facie ground for such proceeding".
3. On 13 June 2001 the Lord Ordinary (Lord Penrose), having considered the present petition, pronounced an interlocutor recording that he was satisfied that it was not vexatious and that there was prima facie ground for it, and accordingly granting leave in terms of section 1 of the 1898 Act. By the same interlocutor leave was granted to the petitioner in terms of Rule of Court 4.2(5) to proceed without the signature of counsel or another person having a right of audience.

Outline of events

4. The petitioner was formerly the tenant of a house at 53 Armour Drive, Summerhill, Dumfries, which was owned by the respondents. In 2000 he entered into missives with the respondents to purchase the house in pursuance of his right to buy under Part III of the Housing (Scotland) Act 1987. The date of entry was 15 May 2000. The petitioner did not pay the purchase price on that date or by the agreed deferred settlement date of 23 June 2000. On 29 June 2000 the respondents rescinded the missives. The petitioner maintains that the respondents were not entitled to do so and that the missives are still in force.
5. In 1999, prior to the conclusion of the missives, the respondents had raised proceedings for ejection on the ground that arrears of rent were unpaid. Those proceedings, which were in Dumfries Sheriff Court, followed a complicated procedural course, but eventually came before the Sheriff for proof on 15 June 2000. On that date the petitioner was not present in court. There is a dispute over how that came about, but it appears that a letter sent by the petitioner to the Sheriff Clerk seeking to explain his intended absence was not placed before the Sheriff. In the event the Sheriff was moved to grant, and granted, decree by default. It is that decree that, by this petition, the petitioner seeks to have reduced. The petitioner appealed to the Sheriff Principal, who refused the appeal and also refused to grant a certificate under Summary Cause Rule 84 that the cause was suitable for appeal to this court.
6. The petitioner then sought and on 1 November 2000 obtained leave under section 1 of the 1898 Act to present a petition to the nobile officium of this court challenging the Sheriff's interlocutor. The respondents were advised of that fact, and (according to their averments) were told that it would be served on 2 November. It was not in fact served until 12 December. On 3 November the respondents had the petitioner evicted. On 19 December, however, the respondents gave an undertaking, which was recorded in the Minute of Proceedings, that the house "would not be re-let during the currency of these proceedings or until a motion enrolled (sic) to revoke this undertaking". On 29 March 2001 the petition to the nobile officium was dismissed as incompetent. In the Opinion of the Court it was observed, at paragraph [6]:

"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".

7. On the view that the undertaking given by them on 19 December 2000 had expired upon the dismissal of the petition to the nobile officium, the respondents proceeded to re-let the house. According to the respondents' averments (which the petitioner does not deny), the new tenants took possession of the house on 21 May 2001.
8. Although the point is not clearly focused in either party's pleadings, the circumstance which gave rise to the motion for interim interdict was that it became evident that the respondents were about to transfer their housing stock to a third party. The petitioner informed us in the course of the hearing of the reclaiming motion that the proposed date of transfer was 7 April 2003, and counsel for the respondents did not contradict that assertion.
9. The motion for interim interdict was heard on 19 March 2003 and refused. The Lord Ordinary took the view that the petition was incompetent. In addition, he took the view that the petitioner had failed to demonstrate that there were any grounds for reducing the sheriff's decree, or that he was still protected as a secure tenant or entitled to take advantage of the statutory right to buy. The Lord Ordinary also expressed the view that the balance of convenience did not favour the petitioner. In these circumstances, he declined to grant interim interdict.

The petitioner's submissions

10. In support of his reclaiming motion the petitioner presented a document headed "Grounds of Appeal", which was in the following terms:

	"1.	The Lord Ordinary failed to consider that it was inappropriate at this stage to review the petitioner's averments in any great detail, as a result he erred in doing so.
	2.	The Lord Ordinary erred, by dealing with the matter of competence, as this matter was not before him and no notice of this was given to the petitioner.
	3.	The Lord Ordinary erred by disturbing Lord Penrose's decision dated 13 June 2001, that the petitioner had a prima facie case."

11. In connection with the issue of competency, the petitioner acknowledged that in the first plea-in-law in their answers the respondents asserted that the petition, in so far as it sought reduction, was incompetent. He also accepted that the need for him to address the question of the competency of seeking reduction in a petition had been drawn to his attention in the course of an earlier hearing on the motion roll. He accepted, in response to a direct question from the court, that it was incompetent to seek reduction by petition. His position appeared to be that the question of competency should be determined at a full hearing of the petition, and not at any interim stage. He further submitted that, even if the petition was incompetent in so far as it sought reduction, it was competent in so far as it sought interdict and interim interdict, and it was with the refusal of his motion for interim interdict that the present reclaiming motion was concerned.
12. The other two issues raised in the petitioner's Grounds of Appeal are related. The petitioner sought to draw support for them from an earlier case in which he was the pursuer, Cooney v Kirkpatrick 1989 SC 61. In that case the petitioner obtained the leave of the vacation judge under section 1 of the 1898 Act to proceed with an action of lawburrows in Dumfries Sheriff Court. Once the sheriff court action had been raised, the sheriff granted a motion ordaining the pursuer to find caution. His principal reason for doing so was that he was of the view that the pursuer had not set forth an apparently relevant case against the second defender. In allowing an appeal against the order for caution the court said (at 62):

"As the Sheriff realised, it was inappropriate at this stage to review the pursuer's averments in any great detail. However, we are quite satisfied that the sheriff was not justified in proceeding upon the view that the pursuer had failed to state a prima facie relevant case against the first defender. ... Since the vacation judge in this case granted the pursuer's application to raise this initial writ for lawburrows against the defenders, it must be assumed that the vacation judge was satisfied that that action was not vexatious and that the pursuer had a prima facie case. That being so, it was not open to the sheriff to reach a contrary view and to conclude that there was no prima facie relevant case."

The petitioner submitted that it followed from those observations (a) that the Lord Ordinary had erred in examining his averments in detail with a view to ascertaining whether he had a prima facie case, and (b) that the Lord Ordinary had erred in differing from the view taken at the time when leave was granted.

13. The appellant made it clear that his aim in bringing this petition was to obtain restoration to possession of the house, although the only remedies he seeks from the court are (i) reduction of the decree of ejection and (ii) interdict against sale of the house to a third party. His attention was drawn to the position adopted by the respondents in answer 11, where they aver:

"On 21 May 2001 the respondents re-let the dwellinghouse and new tenants took possession of the dwellinghouse on the same date. The new tenants have a secure tenancy under and in terms of section 44 of the Housing (Scotland) Act 1987. They became tenants of the dwellinghouse in good faith, for value and without notice of the alleged defect in the extract decree of ejection ... In the circumstances, restitutio in integrum is no longer possible."

We did not understand the petitioner to dispute the factual elements of those averments. His position was that his ejection was illegal, and that the re-letting was consequently illegal and could not stand. In that connection he cited Middleton v Booth 1986 SLT 450. He did not accept that the existence of the new tenancy stood in the way of his recovering possession of the house.

Discussion

14. In our opinion, the Lord Ordinary was correct in his view that the petition, so far as it seeks reduction of the decree of ejection, is incompetent. Reduction of a sheriff court decree, where justified, must be obtained by an action commenced by summons (Rules of Court, Chapter 53). It is not, in our view, open to the petitioner to say that the matter of competency was not before the Lord Ordinary, or that he himself had had no notice of the point. The point was taken by the respondents in the first plea-in-law in their answers. As he acknowledged, the point had been drawn to his attention, as one which he required to consider, in the course of an earlier hearing on the motion roll. It is clear, too, that when the court dismissed the petition to the nobile officium it did so on the basis that any well-founded claim for reduction of the decree of ejection could be brought by action of reduction. Further, the petitioner conceded in the course of the hearing of the reclaiming motion that it was incompetent to seek such reduction by petition. In all these circumstances it is not open to him to shut his eyes to the point, and to expect it to remain un-noticed until a final hearing of the petition. Moreover, in that context, it is of no avail to the petitioner to submit that while it is incompetent to seek reduction by petition, it is competent to seek interdict and interim interdict by petition. The interdict and interim interdict which the petitioner seeks are ancillary to the primary remedy sought, namely reduction of the decree of ejection. Where the primary remedy is not competently sought, there is no basis for the ancillary remedies. In these circumstances, we are satisfied that the Lord Ordinary was right to identify the incompetency of the claim for reduction, and was fully entitled to take that into account in deciding whether or not to grant interim interdict.
15. While the petitioner's first ground of appeal seeks to apply in the context of a motion for interim interdict an observation that was made in Cooney v Kirkpatrick in the context of a motion for an order for caution, we accept that the approach which the court ought to adopt in determining whether a prima facie case is stated is different from that which should be adopted when reaching a final view on the relevancy of a party's pleadings. That is not to say, however, that the pleadings can be ignored when looking for a prima facie case.
16. We are not persuaded that what was said in Cooney v Kirkpatrick about the effect of granting leave under section 1 of the 1898 Act means that a court can never at a subsequent interim stage take a different view about whether there is a prima facie case. The circumstances of that case were very different from those of the present. Here a period of about twenty-one months elapsed between the date on which Lord Penrose granted leave and that on which Lord Wheatley refused interim interdict. During that period, the respondents lodged answers and both parties adjusted their pleadings. In our view Lord Wheatley was entitled to assess for himself, on the material before him, whether the petitioner had in particular stated a prima facie case for interdict, and was not bound to accept that he had, simply because leave had earlier been granted under the 1898 Act in respect of the petition as a whole.
17. In our view, in determining whether the petitioner has made out a case for interim interdict against the respondents' selling or transferring the house, along with the rest of its housing stock, to a third party, it is necessary to ask whether the pursuer has set out a prima facie case that he is entitled to be restored to possession of the house. It is only if he has made out a prima facie case to that effect that his position would be prejudiced by the sale or transfer of the house. It is not enough for him to set out a prima facie basis for reduction of the decree of ejection, because reduction of that decree would not by itself restore him to possession of the house. Nor would it be enough for him to set out a prima facie case that the respondents are still bound by the missives entered into in 2000, because that might lead to no more than a claim for damages. What is required is a prima facie case that the petitioner is entitled to be restored to possession of the house, and that such restoration can be achieved. In our view no such case is made out. On the contrary, the petitioner accepts that the house has been let to new tenants. He does not dispute that the new tenants have acted in good faith and without knowledge of his competing claim. Having regard to the terms of section 44 of the Housing (Scotland) Act 1987, there is no reason to suppose that the new tenancy is not a secure tenancy, or that the respondents are wrong in their contention that it follows that they are not in a position to recover possession of the house, in order to restore it to the petitioner. The case cited by the petitioner, Middleton v Booth, is not in point. In these circumstances it is in our opinion clear that the petitioner has failed to set out a prima facie case for interdict against the sale or transfer of the house by the respondents to a third party.
18. In these circumstances the question of whether the balance of convenience favours interim interdict or not does not arise for consideration.

Result

19. We therefore refuse the reclaiming motion and adhere to the Lord Ordinary's interlocutor of 19 March 2003.