Act: Party

Alt: E Campbell; Ledingham Chalmers

22 May 2014

Background

[1] On 5 June 2013, the sheriff at Glasgow granted decree for possession of the subjects at 3 Briar Gardens, Newlands, Glasgow in favour of the respondents as heritable creditors under section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970. The defender in those proceedings ("the debtor") was the wife of the petitioner and she consented to decree passing against her. On 16 August 2013, the petitioner applied for recall of the decree in terms of section 24D of the 1970 Act on the basis that he was an "entitled resident" as defined in section 24C. That definition, for present purposes, involves the subjects being a matrimonial home forming a non-entitled spouse's sole or main residence.

[2] On 16 October 2013, a proof took place, at which the petitioner, the debtor and their two children gave evidence. The sheriff held that: the petitioner was the debtor's spouse; the subjects were held in the debtor's sole name; they were not the petitioner's sole or main residence; and the petitioner and the debtor did not live together as husband and wife. He considered that neither the petitioner, nor his family, were credible or reliable. The sheriff proceeded on the basis that a Matrimonial Homes Declaration, which had been executed by the debtor at the time the relevant loan and standard security were put in place, was a true statement of fact. The petitioner was found therefore not to be an "entitled resident" for the purposes of the 1970 Act. The sheriff accordingly granted decree of new.

[3] The petitioner appealed to the sheriff principal. The Note of Appeal averred that there was "a presumption, in the absence of evidence to the contrary, that [the petitioner] has his sole or main residence at ... the security subjects" and that "in not holding that such a presumption existed ... the sheriff erred in law". A hearing was fixed, at which the petitioner failed to appear or to be represented. There is a dispute, which will be narrated later, about the reason why the petitioner did not attend. On 12 November 2013, the sheriff principal refused the appeal for want of insistence.

[4] The petitioner subsequently claimed to have attempted to mark an appeal to the Court of Session, but no such appeal was timeously marked. When the respondents attempted to enforce the original decree, the petitioner raised the present proceedings for suspension and interdict.

The petition proceedings

[5] On 15 November 2013, the Lord Ordinary granted an interdict ad interim prohibiting the eviction of the petitioner on the basis that the petitioner had demonstrated a prima facie case that he had been wrongly prevented from proceeding with an appeal to the Court of Session and that the balance of convenience favoured allowing the petitioner an opportunity to persuade the sheriff court to transmit the process to this court or to raise alternative proceedings to remedy any perceived error.

[6] On 19 February 2014, the interim order was recalled by the Lord Ordinary. At the hearing of the motion for recall, it was accepted by the petitioner that no competent appeal had been marked against the interlocutor of the sheriff principal. Nevertheless, the petitioner continued to maintain that he had been denied the opportunity to be heard in the appeal to the sheriff principal because he had not received due notice of the hearing. The Lord Ordinary records that nothing had taken place after he had granted the interim order to advance the petitioner's position and there was no convincing explanation for this inactivity. He states that he granted the interim order on the basis that the petitioner had competently marked an appeal and that some error had occurred which had frustrated its progress. He concluded at the hearing for recall that this had simply not been correct. The petitioner's case had, in any event, poor prospects of success. The presumption, which was founded upon in the Note of Appeal, was not supported by the terms of section 24C. There was no prima facie case that the sheriff principal had been wrong in refusing the appeal for want of insistence. The balance of convenience accordingly lay with the respondents, who had been prejudiced by the long delay in obtaining their remedy in terms of the original decree.

The reclaiming motion

[7] The petitioner advanced two written grounds of appeal against the Lord Ordinary's recall of the interim order. First (ground 1a), the Lord Ordinary erred in his conclusion that the presumption founded upon was not supported by section 24C of the 1970 Act, and thus that the petitioner's case had poor prospects of success. The "existence of such a presumption, although not set out in the relevant legislation, existed through decisions of the courts interpreting that legislation". Secondly (grounds 1b and 2), the Lord Ordinary had failed to take into account the petitioner's attempts to advance his case prior to 15 November 2013 and had placed excessive weight on the petitioner's failure to pursue any of the remedies available to him after that date.

[8] It was said today that the petitioner had now offered the respondents £250,000 although, in reply, the respondents' position was that the redemption figure had now reached £390,000. It was also said, although this does not appear in any documentation, that the petitioner's wife was illiterate and would not have known of the import of the Matrimonial Homes Declaration, and that certain allegations of fraud were under investigation in connection with the underlying loan agreement.

[9] The respondents maintained that the normal rules in relation to the review of discretionary decisions applied. In particular, under reference to the well-known cases of Thomson v Glasgow Corporation 1962 SC (HL) 36, Skiponian v Barratt Developments (Scotland) 1983 SLT 313 and Forsyth v AF Stoddard & Co 1985 SLT 51, a discretionary decision could only be successfully reviewed if it were demonstrated that either some irrelevant factor had been taken into account, a relevant factor had been disregarded, the exercise of discretion had been unreasonable, the decision had been unjudicial, or the Lord Ordinary had erred in law. None of these circumstances applied.

[10] No presumption of the type argued for existed and no authority for it had been cited. In any event, even if such a presumption did exist, the sheriff had been entitled to proceed upon the evidence provided in the form of the Matrimonial Homes Declaration. The Lord Ordinary had taken into account all the matters which had been referred to regarding the petitioner's steps, both before and after the interim order had been pronounced.

Decision

[11] This reclaiming motion is limited to whether or not the Lord Ordinary erred in his discretionary decision to recall the interim interdict. Within that narrow parameter, the court is unable to sustain the petitioner's arguments regarding the Lord Ordinary's determination.

[12] First, the petitioner offers no authority to vouch his basic proposition that there is a presumption about his sole or main residence being that of his spouse. No precedent was produced to support this proposition. On the plain wording of the statute, it is for the petitioner to establish his entitlement to apply for recall of the decree by bringing himself within one of the categories of "entitled resident" referred to in section 24C.

[13] In any event, any presumption is not now relevant. It would operate only in the absence of evidence to the contrary (as the petitioner himself avers). The sheriff heard evidence and was satisfied that the petitioner was not an entitled resident standing the terms of the Matrimonial Homes Declaration. In these circumstances, the court agrees with the Lord Ordinary's conclusion that the petitioner has very limited prospects of successfully challenging the sheriff's decision. That is so irrespective of the intensity of the petitioner's efforts to pursue any of the procedural lines that may be open to him in that regard.

[14] The remaining grounds of appeal concern the account which the Lord Ordinary took of the petitioner's action to date. The court is satisfied that, in respect of all of these actions, the Lord Ordinary took proper account of the steps which had, and had not, been taken by the petitioner. The Lord Ordinary noted that the petitioner's explanation for having failed to progress matters since the grant of the interim order was "unconvincing". It was accepted that no progress had been made to advance the petitioner's position and the only explanation was that the petitioner's solicitor had not understood that he was engaged to do anything beyond the raising of the present petition. The petitioner maintained that there had been some form of misunderstanding in relation to the instructions given to his solicitor, but the court was not provided with any precise information on what his instructions to his agents had actually been. In the absence of a satisfactory explanation for the lack of activity by the petitioner, the court concludes that the Lord Ordinary was entitled to find that there was no justification for the interim order remaining in place. In particular, the petitioner had not established a prima facie case and the balance of convenience now favoured recall.

[15] The court would add that, in any event, even if the petitioner had established himself as an entitled resident before the sheriff, it is likely that decree in this prolonged litigation would long since have passed. The petitioner has already succeeded in obtaining almost a year's grace and the court has not received any information that any payments whatsoever have been made in respect of what is admittedly an existing outstanding loan.

[16] In all these circumstances, this reclaiming motion is refused.