Act: Party (appellant)

Alt: C MacColl; Aberdein Considine (respondent)

14 March 2013

[1] The defender is the heritable proprietor of subjects at Tarras, Gartness Road, Drymen. The pursuers are heritable creditors of the subjects, conform to a standard security granted by the defender on 12 March 2007. The pursuers served a calling up notice on the defender on 27 July 2011, requiring payment in excess of £600,000. The defender failed to comply with the notice. The pursuers raised an action at Stirling Sheriff Court for possession and sale of the subjects, in terms of sections 20 and 24(1B) of the Conveyancing and Feudal Reform (Scotland) Act 1970 and section 5 of the Heritable Securities (Scotland) Act 1894.

[2] In the Initial Writ, the pursuers averred that the pre-action requirements set out in section 24A of the 1970 Act and section 5D of the 1894 Act had been complied with. Despite being given a continuation to enable him to do so, the defender did not lodge, and has not lodged, any Answers. Before the Sheriff and the Sheriff Principal the defender did not challenge the content of the pursuers' Initial Writ. In particular, there was no challenge to the validity of the calling-up notice or to the pursuers' compliance with the pre-action requirements. There was no dispute that the defender had failed to comply with the terms of the calling-up notice served upon him, which failure constituted a default in terms of condition 9(1)(a) of the standard security. Rather, the defender's position, before the Sheriff and the Sheriff Principal, was to complain about the reasonableness of the grant of decree. That remained his position until today, when he sought a discharge of the Summar Roll hearing because he wanted time to obtain legal aid and legal advice with a view to formulating a new challenge based on alleged failures: (a) by the pursuers to comply with the pre-action requirements; and (b) by the Sheriff and Sheriff Principal to apply the statutory tests set out in section 24(5) to (7) of the 1970 Act. Due to the lateness of that motion, it was refused.

[3] The grounds of appeal with which the court is concerned relate only to the reasonableness of the Sheriff's decision to grant decree, having regard to these statutory tests. The Sheriff's decision was a discretionary one having regard to all the circumstances put before him, including those specifically mentioned in the statute. As a general rule, the court can only interfere with discretionary decisions of this nature upon the recognised bases for the review of the exercise of a discretion. In this case, the only relevant ground is that the decision of the Sheriff, as affirmed by the Sheriff Principal, was unreasonable. Having considered the terms of the Sheriff's Note, and the Sheriff Principal's Judgment, the court is unable to detect any basis upon which the Sheriff's discretionary decision could be reversed. Both the Sheriff and the Sheriff Principal considered the defender's financial circumstances as a whole in reaching their decisions that the grant of decree was reasonable. The defender's inability both to pay and to reach settlement was one of the major factors in considering whether decree ought to be granted. The Sheriff and the Sheriff Principal noted that the defender had attempted unsuccessfully to negotiate settlement over a prolonged period. He appeared to be unable to fulfil his obligations for the foreseeable future. The decisions reached in each court were the only ones that could reasonably have been reached and, accordingly, this appeal must be refused.