Scottish Court of Session Decisions

[2]. The action is for declarator that a lease between the parties in respect of a holiday chalet at Lochgoilhead, dated 6 and 23 August 1993, was brought to an end on 28 February 2005 and for decree of removing.

"Having refused to accept an offer it was obliged to accept for renewal of the lease, the pursuer is personally barred from seeking the orders concluded for".

Submissions of parties

"The Court of Session may in relation to an action before it which could competently have been brought before a sheriff remit the action (at its own instance or on the application of any of the parties to the action) to the sheriff within those jurisdiction the action could have been brought where, in the opinion of the Court, the nature of the action makes it appropriate to do so".

Mrs Delibegovic-Broome submitted that the nature of the action made it appropriate for a remit to be made in terms of the section. The action was not complex. The pleadings were not complex. It could be dealt with competently by the sheriff. The defenders were a retired married couple. The first defender had a gross pension of about £17,000 per annum. The second defender had a gross pension of about £10,000 per annum. They owned two properties. Their financial circumstances were accordingly modest, albeit not entirely impecunious. Mrs Delibegovic-Broome accepted that a pursuer had a right to avail himself of the jurisdiction of whatever Court he finds more convenient or appropriate to his own circumstances: McIntosh v British Railways Board (No.1) 1990 S.L.T.637, but she submitted that section 14 conferred a discretion on this Court to order a remit, notwithstanding the pursuer's exercise of its right and it was relevant to an exercise of that discretion to consider the impact of the additional expense of litigating in the Court of Session (judicial and extra-judicial) on defenders of modest means: Gribb v Gribb 1993 S.L.T.178. The defenders sought a remit to the Sheriff Court at Dunoon. Anticipating the objection that this was not a convenient venue for either party, Mrs Delibegovic-Broome mentioned the possibilities of parties prorogating the jurisdiction of some other Sheriff Court. She also noted that the sheriff has power to transfer causes to other Sheriff Courts: Ordinary Cause Rule 26.1, Summary Cause Rule 22, and as between the Summary and Ordinary Rules: Summary Cause Rule 23. However, if I were persuaded that it was appropriate to remit I should remit to Dunoon, leaving any question as to whether another Sheriff Court might be more suitable to be determined by the sheriff: McIntosh supra at 641D to G.

Discussion and decision

"...the power should be seen as having been introduced to meet the needs of particular cases, not to effect a general distribution of work from one court to another... If the section was to have the effect of redistributing cases to the Sheriff Court just because they were small or simple the matter would have been approached in a different way.... If the pleadings show that the pursuer could possibly recover more than the upper limit [below which the Sheriff Court has a privative jurisdiction] then the action should be regarded as appropriate for the Court of Session unless some other factor is present which shows that the nature of the particular case is such that it is appropriate for it to be dealt with in the Sheriff Court".

Later in the Opinion, at 641H, Lord Hope explains that what may be seen as the mischief of a claim resulting in recovery at a level which is disproportionately modest when compared with the expense of litigating the case in the Court of Session can be addressed by a modification of any award of expenses in the pursuer's favour:

"A pursuer who raises his action in the Court of Session and seeks to take advantage that the practices and procedures of this Court must take into account the risk that if the sum which he recovers is small he will be confined to expenses on the Sheriff Court Summary Cause scale or on the Sheriff Court Ordinary scale with or without the sanction of counsel according to the circumstances ..."

"1. For declarator that a Lease dated 6^th and 23^rd August, 1993 between the pursuer and the defenders in respect of Chalet Site Number 19, together with runaway and layby pertaining thereto and the plot of ground lying in front of the said Chalet, at Corrow Farm, Lochgoilhead, Argyll was brought to an end on 28^th February, 2005, and that the defenders have had no continuing right in occupation of the said lease subjects after that date.

2. For decree ordaining the defenders to flit and remove themselves, their family and dependants, and all their goods and possessions, from Chalet Site Number 18, together with runaway and layby pertaining thereto and the plot of ground lying in front of the said Chalet, and to leave the same void and redd that the pursuer or others in their name may enter thereto and peaceably possess and enjoy the same".

I have taken the reference to Chalet Number "19" in the first conclusion to be a typographical error. What the action is concerned with is the recovery of possession of the heritable property which is Chalet Site Number 18 together with runaway and layby pertaining thereto and the plot of ground lying in front of that chalet, at Corrow Farm, Lochgoilhead. There is nothing incompetent about the first conclusion. It states a proposition that is part of the pursuers' case: that the defenders have no right to be in occupation of the subjects. However, it is an unnecessary conclusion. It has no purpose that would not be equally served by the second conclusion. This is not a case where the conclusions for removing follows, is ancillary to and carries into practical operation a conclusion for declarator (c.f. Rankine, The Law of Leases in Scotland (3^rd Edition) page 586). In other words, this is not a case where the pursuer requires or seeks decree declaring its right and title as the necessary pre-condition of a further and eventual decree. The pursuer instructs its title in its averments by reference to it being the lessor under the lease in respect of which the defenders took possession of the subjects and that title is not disputed. Essentially this is nothing more than an action of removing. Now, notwithstanding the terms of section 35(1)(c) of the Sheriff Court (Scotland) Act 1971, the defenders have not taken a plea of no jurisdiction or otherwise challenged the competency of the action. In the absence of argument to the contrary, I am prepared to proceed on the basis that because of the conclusion for declarator, the action has been competently raised in the Court of Session (c.f. Michael v Carruthers 1998 S.L.T.1179 at 1186F). Without that conclusion there would have been a very real doubt as to whether the action is competent in this Court. I was referred by Mr Stuart to chapter 41A of the Rules of Court as pointing to the availability of the Court of Session as a forum for an action of removing. This chapter, however, has no application to the case of tenants whose right to occupation under a lease is said to have come to an end, which is how the pursuer characterises the present case. The commentary on the chapter of the Rules which is found in the Parliament House Book (at paragraph 45A.1.2) is nevertheless of interest. Its includes the statement:

"The conventional wisdom is that an action of removing without any other substantive conclusion is not competent in the Court of Session, although there is no statute or rule excluding it".

Reference is made to the report of the Scottish Law Commission, Recovery of Possession of Heritable Property (No.118) (1989), at paragraph 9.1 and the doubts expressed by Lord Penrose, and recorded in but not resolved by the Opinion of the First Division in Oliver & Son Ltd Petitioner 1999 S.L.T.1039.