Scottish Court of Session Decisions

Pursuer: Muquit; Drummond Miller

Defenders: Williamson; MacRoberts

13 February 2007

Introduction

[1] On 24 January 2007 the pursuer moved the court for interim suspension of a decree granted in her absence on 17 October 2006 in the Glasgow Sheriff Court for her eviction from her flat at 64 Curle Street, Glasgow, and for interim interdict against such eviction. Her action triggered a caveat lodged by the defenders, and they duly appeared by counsel to oppose the motion. After hearing submissions, I continued the case, at the request of the defenders, to 26 January to allow them to place further information before the court. In light of a question which arose in the course of argument, the defenders were given the opportunity of putting in further submissions after the hearing. On a matter such as this I would usually have given my decision immediately. However, despite having earlier expressed a concern that the case might establish a precedent, the defenders requested me to deliver a written Opinion, and I agreed to do so.

[2] The relevant facts can be taken from the amended summons and from the information placed before me by counsel. Due to the urgency of bringing an action of this type, it comes as no surprise that the averments in the summons are somewhat lacking in specification, that some are factually incorrect and that further points emerge in the course of submissions. I am grateful to both counsel for their efforts to bring the full picture before the court.

[3] Because the positions of the parties are reversed in this action as compared with that in the Sheriff Court, I shall, so as to avoid confusion, refer to the pursuer in this action as "Ms Brown" and the defenders as "the GHA". Ms Brown is a tenant of the GHA at the above premises. She is, and has been for a considerable period, substantially in arrears with payments of her rent. In late 2005 the GHA brought an action against her in the Glasgow Sheriff Court for payment and ejection. The various stages of the proceedings were heard in the Heritable Court there. There were a number of continuations. On 4 April 2006 decree of ejection, and for payment of arrears of £945.98 plus expenses, was granted against her in her absence. She lodged a minute of recall putting forward the following grounds:

[4] I was told by Ms Williamson, for the GHA, on instructions, that a very large number of cases pass through the Heritable Court daily. Although the crave in each action will include a crave for ejection, in very many of the cases the pursuers will move for decree of ejection only as a last resort. The action will be used primarily to put pressure on the tenant to pay off the arrears. Ejection will be sought only when it is clear that the tenant will not pay; and sheriffs are generally reluctant to order eviction where the tenant is willing and able to make some payment towards the arrears. It is in the interests of both parties that some payments are made rather than ejection being ordered. Before decree for ejection is granted in any particular case, there will often be a large number of continued hearings so that the parties can agree, or the court can determine, the periodic payments which the tenant is to make with a view to paying off at least part of the outstanding debt and staving off eviction. Ms Williamson told me that the GHA have about 10,000 tenants in Glasgow and that about £7 million in arrears of rent due to them is presently the subject of actions of this type in the Heritable Court.

[5] Ms Brown appeared at one or two of the continued hearings in the Heritable Court by a solicitor. On other occasions when she appeared, she did so in person and without representation. She was in attendance, though without representation, on 11 July. She did not appear at the continued hearing of 15 August, or at subsequent continued hearings on 10 and 17 October (those hearings having each been fixed at the previous hearing), at the last of which the sheriff granted decree in absence against her for ejection and payment of the arrears of rent (in the original sum of £945.98, though according to information given to me the arrears were by then in excess of £1,300) and interest.

[6] According to Ms Muqit, who appeared on her behalf before me, Ms Brown only heard on 14 November (when she received a letter from the GHA dated 9 November) that the decree had been made against her in her absence. She instructed a solicitor on 16 November. There was, apparently, some difficulty in finding the process. The solicitors appreciated that they could not move for recall, since Rule 24.1(2) of the Summary Cause Rules permits recall of a decree only once in any one action. They lodged a notice of appeal and sought leave to appeal out of time. I am told that the Sheriff Principal allowed the appeal to be lodged out of time and fixed a hearing for 18 January 2007. At the hearing it emerged that decree had been extracted on 1 November 2006 so that any appeal was incompetent. It was withdrawn.

[7] On 19 January Ms Brown received a letter from the GHA saying that the eviction would take place on 22 January. She contacted solicitors who instructed counsel. A summons was prepared under severe time constraints. It was signetted on 22 January. This triggered a caveat. I am told that sheriff officers were already in attendance at Ms Brown's flat when they received a telephone call to say that the caveat had been triggered. They had already changed the lock on the door and had given the new key to the person in attendance from the GHA. On receipt of the telephone call, however, they ceased trying to evict Ms Brown. The key was given to her, and she and her belongings were left in the flat.

Submissions for the pursuer
[8] On behalf of Ms Brown, Ms Muqit submitted that she needed to show a prima facie case for reduction of the decree and that the balance of convenience favoured the grant of interim relief. As to the latter, she submitted that in this case, where failure to grant interim relief would leave the pursuer and her son homeless, the balance of convenience was clearly satisfied. As to the former, she submitted, in reliance on the decision of an Extra Division in Robertson's Executor v Robertson 1995 SC 23, that, in an action to reduce a decree in absence, it is not necessary to aver "exceptional circumstances". It is necessary to look at the whole circumstances of the case. There is no precise test. The weight to be attached to the circumstances will vary from case to case. In the present case, the circumstances relied upon were these: first, that Ms Brown was not aware that there was to be a hearing on 15 August 2006 or, subsequently on 10 and 17 October, and she had not received letters sent to her by the GHA after those hearings; second, that she was not aware that it was to be contended that she was in default, since she had (wrongly) understood that the sheriff had ordered her to make payments of arrears at the rate of £15 per fortnight, not £15 per week; and, third, that she can partially repay the arrears by selling her car and by her backdated claim for housing benefit.

[9] For the GHA, Ms Williamson challenged both the approach adopted by Ms Muqit and the facts presented by her on Ms Brown's behalf. She submitted that, as the annotations to Rule of Court 53.2 made clear, the discretion to recall a decree was part of the supervisory jurisdiction. Citing the Opinion of Lord Johnston in a judicial review case, Shetland Line (1984) Ltd v Secretary of State for Scotland 1996 SLT 653, 658, as illustrative of how the supervisory jurisdiction may be exercised, she said that the court must review the decision against the background of the material before the decision maker at the time he made his decision and not by reference to subsequent events or material which was not before him. Applying that approach, she submitted that it had not been shown here, even to the standard of a prima facie case, that the sheriff had acted ultra vires, had erred in law or had acted unreasonably. Further, she submitted, there had been no adequate explanation for Ms Brown having allowed decree to pass by default. She had been in court personally on 11 July when the order for payment was made and the hearing was continued to 15 August. Had she attended on 15 August she would have become aware of the subsequent continued hearings. She was the author of her own misfortune. Further, although the defenders themselves were under no obligation to keep Ms Brown informed of the hearing dates, they had, in fact, written to her after the hearing of 15 August, referring to that hearing and informing her of the continued hearing fixed for 10 October and of the potential consequences of her not attending. They had also, in accordance with their usual practice, delivered a copy to the Ms Brown's address by hand. They had written again in the same terms mutatis mutandis, using the post and hand delivery, when Ms Brown failed to attend on 10 October and after the hearing on 17 October when the eviction order was made. There was no basis in fact for Ms Brown's contention that she had not known either about the hearing at which the decree for eviction was made or about the decree itself until it was too late to appeal.

[10] In addition to these points on the merits of the claim for interim suspension and interdict, Ms Williamson took two points going to the competency of the application. First, she pointed to the requirement in Rule of Court 53.2 that, whenever reduction of a decree of an inferior court is concluded for, intimation of the action shall be made to the clerk of that court, warrant for intimation shall be inserted in the summons and a notice of intimation shall be attached to the copy of the summons. This was not done. Therefore, she submitted, the action was not properly before the court. Secondly, she argued, the eviction had been carried out and it was therefore now too late to seek to reduce the decree on the basis of which it had proceeded. She referred me to three cases decided in the Sheriff Court in which it had been held that eviction had been completed when the locks had been changed, notwithstanding that the tenant's property had not yet been removed. Those cases were City of Glasgow Council v Patricia Kelly 1999 SCLR 168, Deighan v City of Edinburgh Council 2004 HLR 89 and Holms v Ashford Estates 2006 SLT (Sh Ct) 70.

Discussion
[11] I start by considering the points relevant to the question of competency. Ms Muqit acknowledged that the pursuer had not complied with the requirement, in terms of Rule of Court 53.2, to intimate the action to the clerk of the Sheriff Court. This had been overlooked in the rush to commence proceedings. Since the matter was pointed out on the Wednesday, however, the pursuers had written to the clerk of the Sheriff Court. She asked me to exercise the dispensing power in Rule of Court 2.1. I see no reason not to do so. I shall, however, require the pursuer to make formal intimation of the action to the clerk of Glasgow Sheriff Court and to amend the summons to include a warrant for intimation in accordance with the Rule.

[12] The cases cited by Ms Williamson support the argument that implementation of a decree for ejection may be regarded as having been completed when the landlord has secured the property against the tenant, even though the tenant's possessions remain in the property: see Deighan v City of Edinburgh Council at para.[7] and City of Glasgow Council v Kelly at p.169E. An example is where the locks are changed and the keys given to someone other than the tenant. But those cases do not deal with the case where the tenant personally remains in the premises. Ms Williamson was unable to draw my attention to any authority suggesting that eviction may be complete in such a case. The difference is of importance for this reason, that while the changing of the locks achieves the aim of securing the property for the landlord against the tenant when the tenant is out of the property, it can hardly do so when the tenant is within. The presence of the tenant's property in the property does not prevent eviction from being completed since, once the tenant is out and the locks are changed, the landlord can remove the tenant's property at a later date. But until the tenant personally removes himself or is removed, ex hypothesi he has not been evicted; and merely changing the lock does not exclude him. Ms Williamson said that in many cases, once the locks were changed and the eviction was completed, the landlords might temporarily allow the tenant back in under a new arrangement. I am sure that that does happen. But in those cases the eviction has been completed. Nothing in this Opinion requires that practice to be changed. But such cases are quite different from the case with which I am here concerned where the eviction was interrupted before the tenant removed herself or was removed. Ms Williamson also stated that, in the present case, Ms Brown was packed and ready to leave. I did not understand this to be accepted by Ms Muqit; and I do not have material before me to enable me to decide this issue. But to my mind it matters not. At best it would show a readiness to leave peaceably though, in view of the fact that this action had been commenced, readiness should not be equated with willingness. It could not show that the eviction was completed.

[13] I, therefore, do not accept the argument that the application for interim relief is not competently before the court. I turn therefore to consider the merits of the motion made on behalf of Ms Brown.

[14] On a motion for interim relief, the pursuer must show a prima facie case on the merits. Sometimes the expression "good arguable case" is used, but I do not think there is any difference between the two expressions. What does that mean in the present case? Where interim interdict is sought in support of a legal right, it is clear that the pursuer must demonstrate a prima facie case that he has such a legal right. But here the position is different. The action of reduction seeks to invoke the inherent power of the court. The exercise of the power is essentially discretionary. On the full hearing of the action for reduction of a decree in absence, there are no hard-edged tests to be satisfied: Robertson's Exr. v Robertson. The pursuer need not aver or prove exceptional circumstances. All the circumstances of the case will be taken into account. If that is the position at the full hearing of the action, there cannot logically be a higher or more precise threshold in the case of an application for interim relief, where the pursuer has to establish only a prima facie case.

[15] I do not accept that the cases on judicial review provide any assistance. The citation from Shetland Line (1984) Ltd v.Secretary of State for Scotland is but one amongst many statements of the well-known principles applicable to judicial review. But if one were to apply that to the case of reduction of a decree passed in absence, it would emasculate the jurisdiction. Ex hypothesi, when the decree was granted in the absence of the party seeking now to reduce it, not everything relied on to reduce the decree will have been put to the sheriff. The complaint made is not that the sheriff erred in law or procedure on the material before him, or that his decision was irrational or Wednesbury unreasonable. The action for reduction of a decree in absence invokes an equitable jurisdiction which has little in common with the jurisdiction invoked in an action for judicial review.

[16] It may be helpful to look more closely at what a pursuer in a case such as this will require to put forward on the full hearing of the action, should it ever get to that stage. It is clear that the court will require a candid explanation of why the pursuer (in the action for reduction) did not appear and allowed the decree to be granted in absence. However, as Lord MacFadyen says in Nunn v Nunn 1997 SLT 182 at 184D-E, the absence of any justification or mitigating circumstances will not necessarily mean that the action of reduction will fail. In Shaw v Performing Right Society Ltd 2002 SCLR 993, to which I was referred by Ms Williamson, reduction was refused because the pursuer (in the action of reduction) had failed in the sheriff court to take the normal steps to make himself aware of the fact that decree had passed against him, was out of time for appealing and was therefore "the author of his own misfortune". I do not find that decision surprising. It is an illustration of how the absence of any justification or mitigating factors may be decisive. But I note that Lord Menzies was not referred to Robertson's Exr. v Robertson and, consistently with the submissions made to him, proceeded on the basis that the pursuer required to show "exceptional circumstances" in order to obtain reduction of the decree in absence in that case. Not surprisingly he held that the pursuer's failures did not amount to exceptional circumstances.

[17] What more needs to be shown, in addition to some explanation for the non-appearance, will depend on all the circumstances, including the nature of the action in which the decree was granted in absence. Thus, for example, in Nunn v Nunn, reduction was sought of a decree in absence granted in the sheriff court in an action of divorce. The action of reduction was aimed principally at the financial aspects of the decree. The action was dismissed at a hearing on the Procedure Roll. It was held that the pursuer required to make specific averments as to his own financial circumstances showing that the decree should not have been made. That seems, if I may say so, obviously right where the correctness of the decree in the sheriff court can be assessed by reference to averments about the evidence which would have been led had the party appeared. I would respectfully apply what was said in Nunn v Nunn more generally, in this way: the pursuer, in an action for reduction of a decree in absence, in addition to putting forward an explanation for his non-appearance, must aver circumstances showing that, had he appeared, decree would not (or, at any rate, should not) have passed against him in the form in which it did pass.

[18] Applying that to the application for interim relief, it seems to me that, in such a case, in an application for interim suspension and interdict, the pursuer will be required to put forward an explanation of why he failed to appear; and will also have to show a prima facie case that had he appeared the decree would not, or should not, have passed against him in the form in which it did pass.

[19] How does that apply to the present case? Ms Brown has put forward an explanation of why she did not attend court. She says that she did not know of the hearing date. Because she did not attend on 15 August, she did not know of the subsequent hearings. She says that she did not receive the letters from the GHA. Her explanation is challenged. I cannot decide that issue on ex parte statements made at the bar. It is said, correctly, that Ms Brown was personally present in court on 11 July 2006, on which occasion the next hearing was fixed for 15 August. But that does not mean that she will necessarily fail in her action. She might not have appreciated that a date was being fixed. She might not have appreciated the importance of attending, particularly if, as she contends, she was complying with terms of the payment order as she understood them to be. This is a dispute which cannot be resolved at this stage. Clearly Ms Brown was in arrears of rent. She was also in default of the order made in the Heritable Court for payment at the rate of £15 per week. I have no reason to think that there was anything wrong in the court making the order for payment and eviction. But that is not to say that the court would have made the same order if Ms Brown had appeared and explained that, on her (mis)understanding of the previous order for payment, she had thought that she was required to pay £15 per fortnight. It would be invidious on the material before me to try to divine what a sheriff would have done in such circumstances. Much might have depended upon whether the sheriff believed that explanation. Even if he had not believed her, he might have thought it better to give Ms Brown another chance, particularly if payments were being made, as they were. According to the material I was given, Ms Brown had made three payments of £15 in the five weeks between the order of 11 July and the hearing of 15 August, when the matter was brought back before the court, and a further two such payments before the hearing on 10 October, a total of seven payments in about thirteen weeks, a rate of payment consistent with her alleged (mis)understanding of what the sheriff had ordered. Ms Williamson candidly accepted that had Ms Brown appeared before the sheriff on 15 August or on the subsequent hearings with that explanation, it is unlikely that the sheriff would have passed decree evicting her there and then. He might have ordered a proof to establish the credibility of her explanation; or, more likely, he might have made a further order for payment - or have simply made clear to Ms Brown the terms of the previous order for payment - and emphasised the importance of her abiding by it. Such an approach is consistent with the practice of that court as it was explained to me by Ms Williamson (see para.[4] above). The concession that the sheriff would probably not have made the order for eviction, which was properly made, means that the pursuer has made out a prima facie case, which is all that is required at this stage, that, had she appeared before the sheriff, the order for eviction would not have been made.

[20] I turn, therefore, to consider the balance of convenience. Ms Muqit submitted that it lay in favour of granting interim relief. Ms Williamson did not seriously challenge this. I am satisfied that balance of convenience favours the grant of interim relief. Were I to refuse it, Ms Brown and her son would be rendered homeless. If I grant it, then it is open to the parties to reach an agreement so as to get the proceedings in the Heritable Court back on track.

[21] I shall therefore grant interim suspension and interdict.

[22] In the course of the hearing, the GHA helpfully produced documents showing the payments that Ms Brown had made during the period from the beginning of July 2006 until now. They did so, primarily, as I understood it, to show that her payments were irregular and infrequent. I have referred to these records already as showing that Ms Brown had made a number of payments of arrears after the sheriff ordered her to do so, and even though the payments were irregular they in fact averaged out at about one per fortnight. However, the records also show that after decree for eviction was obtained, rent continued to be paid on Ms Brown's behalf and accepted by the GHA. It was credited by them to an account under her name and the address of the premises which bore to show rent accruing and payments being made in respect of that rent. The record also showed three further payments of £15 towards arrears of rent. I raised with Ms Williamson the question whether this was consistent with the termination of the tenancy. It is made clear in Deighan v City of Edinburgh Council, at para.[6], that the grant of decree of eviction terminates the tenancy. Does the receipt of rent thereafter create a new tenancy? Does it amount to a waiver of the right to rely upon the decree? Ms Muqit, somewhat opportunistically, submitted that the receipt of rent did have one or other of these consequences. She referred me to Eviction and Rent Arrears by Jonathan Mitchell and to HMV Fields Properties Ltd. v.Bracken Self Selection Fabrics Ltd. 1991 SLT 31. In that case the Inner House held that although, viewed objectively, payment and receipt of rent were inconsistent with the contract having come to an end, the question whether subsequent acceptance of rent was unequivocal so as to amount to a waiver of the irritancy notice was a question of fact to be answered in light of all the surrounding circumstances, including the mechanism and history of the payments. Ms Williamson put in a written submission after the hearing referring to the following authorities: Rankine on Leases, 3^rd ed. at p.398, Douglas v Cassilis & Culzean Estates 1944 SC 355, 361, Smith v Grayton Estates 1960 SC 349, 354, and Vaughan-Armatrading v Sarsah (CA) (1995) 27 HLR 631. She submitted that it was a question of fact in each case whether a new tenancy was created, and that the law will not lightly presume an intention to create a new tenancy. She pointed out that there were no averments instructing a case either of waiver or of a new tenancy having been created. On the facts here, the decree provided that recovery of possession could not take place before 14 November 2006. The pursuer applied to the Sheriff Principal to appeal out of time on 24 November, thereby temporarily suspending the decree until that appeal was disposed of in January 2007. It was accepted that rent was paid and received during the period of ten days between 14 and 24 December 2006, but that was a very short period; and in the context of the mechanical system of receiving payment, was far too short to allow any inference of waiver or a new tenancy.

[23] The cases all show that the question whether receipt of rent gives rise to a waiver of an irritancy notice - and, I would have thought, of a right to evict pursuant to a decree of ejection - or to the creation of a new tenancy is a question of fact requiring an investigation of all the circumstances. There is some force in the substantive points made by Ms Williamson. There is clearly force in her submission that there are no averments in the summons in support of any such case. It is open to Ms Brown to amend, if so advised, to take any such point. As a decision on this matter does not affect the outcome of the motion, I shall not say any more about it at this stage. Had it become crucial, I would have been inclined to allow Ms Brown the opportunity to amend her summons before reaching my decision on her motion.