Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 82

XA34/16

 

Lady Paton

Lord Malcolm

Lord Glennie

OPINION OF THE COURT

delivered by LORD GLENNIE

in the appeal

by

HELEN HUMPHREYS

Pursuer and Respondent

against

NORNA CRABBE

Defender and Appellant

Pursuer and Respondent:  Sanders; HBJ Claim Solutions LLP

Defender and Appellant:  Party

8 November 2016

Introduction

[1]        This is an appeal by the defender and appellant, Norna Crabbe, (“Ms Crabbe”) against an interlocutor of Sheriff Ailsa Carmichael pronounced on 1 March 2016 following a hearing lasting 5 days between June and December 2015.  The appeal also brings under review decisions made at an earlier stage of the proceedings by Sheriff Hamilton.

[2]        Ms Crabbe has represented herself throughout the proceedings and did so again in this appeal.  She is a solicitor of many years’ experience.  She is not a litigator but her extensive practice in conveyancing meant that she was able to assist this court on the matters of practice and statutory construction of direct relevance to the issues in dispute between the parties.  Despite the strong feelings and, indeed, acrimony which at times have been a feature of the dispute giving rise to this litigation, she conducted her appeal courteously and in an informed and helpful manner and we are grateful to her for her assistance.  We should add that we are also grateful to Mr Sanders for his assistance.

 

The Circumstances Giving Rise to this Appeal

[3]        Sheriff Carmichael delivered a comprehensive judgment setting out in detail the circumstances giving rise to this action and to this appeal.  Since the appeal to this court is only on questions of law – and in any event neither party sought to challenge the sheriff’s findings in fact – we borrow heavily from that judgment in summarising the relevant facts.

[4]        Numbers 84 and 86 Forsyth Street, Greenock, are the upper and lower flats, respectively, of a detached Victorian villa.  The building dates from around 1880.  The pursuer and respondent, Helen Humphreys, (“Ms Humphreys”) is the proprietor of number 84 while Ms Crabbe is the proprietor of number 86.  There is some disagreement as to whether the property was divided from the start, but it was certainly divided by the 1920s.  Ms Crabbe has owned number 86 for a long time (she told us that she had been there for over 60 years).  By contrast, Ms Humphreys purchased number 84 only in 2010.  She purchased it from a couple who had, in turn, purchased it in the early 2000s from the Church of Scotland, in whose ownership it had served as a manse for a local church.  It will be necessary in due course to consider the dispositions in 1920 and 1922 disponing numbers 84 and 86 respectively to the then purchasers which made provision, as between the proprietors of those properties, for liability for the expenses of keeping the roof, chimney stalks, rainwater pipes and drains in good order and condition.

[5]        It is apparent from the findings in fact made by the sheriff that relations between Ms Humphreys and Ms Crabbe were poor from the start.  The sheriff described the tone of their first meeting, on the day after Ms Humphreys had concluded missives for number 84, as “not pleasant”.  Ms Humphreys took flowers to Ms Crabbe and introduced herself as the new owner of the property upstairs.  Ms Crabbe would not accept the flowers “on any account”.  There was a discussion about the need to repair the property.  There was no dispute about the need for repairs but Ms Crabbe declined to accept any responsibility for sharing in the cost.  She blamed the need for them on the neglect of earlier owners.  In subsequent correspondence, the terms of which we need not set out in detail, Ms Crabbe continued to insist that she accepted no liability for any part of the costs of repairs to the property.  Further, she made it clear that Ms Humphreys required her consent before embarking on the repairs; and that she would have to give consent for any access to her property necessary for the repairs to be carried out.  That position was intimated in February 2010 and the sheriff records that Ms Crabbe’s position since her first meeting with the pursuer has essentially remained unchanged.

[6]        The sheriff describes the state of disrepair and the problems resulting therefrom in paragraphs 18 and 19 of her Findings-in-Fact in the following terms:

“18.     The villa is in disrepair.  The roof, chimneys, gutters, downpipes, fascias and soffits need to be repaired.  Their state of disrepair results in water coming into number 84.

 

19.       A number of problems have occurred as a result of the disrepair of the villa during the pursuer’s time there.  These have involved difficulties with gutters, slates, downpipes and smoke penetration.  Birds have come in and out of the roof space and water has leaked in.  The pursuer has been unable to sleep because of water dripping in.  She has had to catch the water in buckets, and has eight buckets in place to do so.  The birds have been able to gain access because soffits and fascias have fallen off.”

 

The sheriff then describes the attempts made by and on behalf of Ms Humphreys to have repairs carried out.  Those attempts foundered on the refusal by Ms Crabbe on a number of occasions to permit access to her property.  Ms Humphreys obtained estimates for the necessary work and provided them to Ms Crabbe but no agreement was reached as to the estimates, as to Ms Crabbe’s willingness to meet half the cost of the repairs, or on the question of access.

[7]        In paragraph 39 of her Findings-in-Fact, the sheriff identifies a number of works as being necessary in order that those parts of the tenement building that are intended to provide shelter to other parts of the building are maintained so as to provide that shelter.  This slightly odd phraseology reflects the language of section 8 of the Tenements (Scotland) Act 2004 (“the 2004 Act”) to which we return in due course.  Those works comprise the following: (i) stripping out defective lead flashings on the roof; (ii) replacing lead flashings using suitably coded lead; (iii) replacing the aluminium ridge at the hip; (iv) removing old cast iron gutters from the roof; (v) replacing the gutters using 6x4 aluminium gutters; (vi) replacing fascia and soffit boards where these are needed; (vii) replacing joist ends where these are needed; (viii) repairing and pointing chimney heads where needed; (ix) repairing slatework on the roof and replacing missing slates; (x) patch repairing areas of felt underlay where slates are missing or removed; (xi) removing and replacing cast iron downpipe sections where these are cracked or damaged; (xii) the erection of scaffolding all around the tenement building; and (xiii) undercoating and applying gloss paint to woodwork and downpipes.  She explains in paragraphs 40 and 41 that water currently enters the upper flat because items (i) to (xi) remain outstanding.  Scaffolding (item (xii)) will have to be erected around the whole building, including on Ms Crabbe’s property, so that the works can be carried out in safety.  The application of paint in item (xiii) is necessary to make the woodwork and downpipes reasonably weather resistant. 

[8]        After finding that Ms Humphreys had co-operated with Inverclyde Council and had afforded access to her property on two occasions to a surveyor and a tradesman instructed by Ms Crabbe, the sheriff goes on in paragraphs 43 and 44 of her Findings-in-Fact to make these important findings:

“43.     The defender has repeatedly sought to impose conditions on repairs to the roof being carried out.  She has proceeded on the basis that her consent is required for their being carried out.  She has repeatedly sought to impose conditions on there being access to her property for repairs to be carried out.  Those conditions include recognition that the pursuer bear the whole cost of repairs excluding any element of betterment.  The defender has refused access to her property to Inverclyde Council at a time when the Council had legitimate concerns about the condition of the property.

 

44.       In the absence of orders of court, the defender will continue to refuse access to her property or to place conditions on access such as to render it impossible for the pursuer to have the necessary works carried out.”

 

 

Legal Proceedings Commenced by Ms Humphreys

[9]        Faced with this impasse, on 12 September 2014 Ms Humphreys commenced legal proceedings against Ms Crabbe in the sheriff court by way of a Summary Application under sections 6 and 17 of the 2004 Act.  In her application she craved the court: (1) to authorise her to instruct various named contractors to undertake the works detailed in estimates given by them, subject, first, to her giving to Ms Crabbe at least 21 days written notification of such works commencing and, second, to the parties each being liable for a 50% share of the costs of the works; (2) to ordain Ms Crabbe, in terms of section 17 of the 2004 Act, to provide all reasonable access necessary to the exterior and garden grounds of Ms Crabbe’s property for maintenance purposes, including where necessary the erection of scaffolding, subject to Ms Humphreys giving 21 days written notice of such works commencing or subject to such terms and conditions as the court should determine; and (3) to “make such other order under section 6 of the Tenements (Scotland) Act 2004, as the sheriff considers necessary or expedient”.

[10]      Ms Crabbe lodged answers.  Pleadings were adjusted by both parties.  It is only relevant to note that among Ms Crabbe’s pleas-in-law was a plea to the relevancy and specification of the action brought against her.

 

Sheriff Carmichael’s judgment

[11]      We have already noted the relevant findings-in-fact made by Sheriff Carmichael.  On the basis of those facts and of her consideration of the case as a whole, she found in fact and in law:

“That it is necessary to make orders in terms of section 6 of the Tenements (Scotland) Act 2004 concerning the operation of sections 8 and 17 of that Act as regards the tenement building at 84 and 86 Forsyth Street, Greenock.”

 

She found in law that by virtue of the real burdens created in the dispositions of 1920 and 1922, Ms Humphreys and Ms Crabbe were liable equally for the expense of upholding the roof of the properties and also the chimney stalks, rainwater pipes and drains.  She also found in law that by virtue of those real burdens and of Rule 1.2(b) of Schedule 1 to the 2004 Act, the roof, chimney stalks, rainwater pipes and drains at 84 and 86 were “scheme property” for the purposes of the 2004 Act.  She found that the pursuer was entitled to instruct repairs to the roof, chimney stalks, rainwater pipes and drains without the consent of the defender.  She sustained the third plea-in-law for the pursuer to the following extent:

“1.   Finds and declares that the works detailed in this paragraph are necessary in order that those parts of the tenement building at 84 and 86 Forsyth Street, Greenock PA16 8QY, that are intended to provide shelter to other parts are maintained so as to provide that shelter.  [She then lists at sub-paragraphs (a)-(m) the necessary works referred to in paragraph [7] above.]

 

2.   Finds and declares that (sic) having regard to all the relevant circumstances that it is reasonable that the work referred to in paragraph 1 be carried out.

 

3.   Authorises the pursuer to instruct contractors to carry out the works detailed in paragraph 1.

 

4.   Finds and declares that the pursuer and the defender each is liable for 50% of the cost of the said work.

 

5.   Finds and declares, for the avoidance of doubt, that the defender shall not be liable for repair to any velux window in the roof.

 

6.   Ordains the defender [Ms Crabbe] on 21 days’ notice to allow access to any contractor instructed by the pursuer to or through any part of 86 Forsyth Street, Greenock PA16 8QY including, for the avoidance of doubt, the exterior of the property and the garden grounds there, for the purposes of maintenance of the tenement building at 84 and 86 Forsyth Street, Greenock PA16 8QY, including, where necessary, the erection of scaffolding.  For the purposes of this paragraph “maintenance” has the meaning provided by paragraph 1.5 of Schedule 1 of the Tenements (Scotland) Act 2004.  Notice shall be given in accordance with the provisions of section 30(1) and (2) of the Tenements (Scotland) Act 2004 and the date on which the notice has been given shall be ascertained in accordance with section 30(4) of the same Act.  In any notice given under this paragraph the pursuer shall specify the identity of the contractor instructed by her.”

 

The sheriff went on to repel the pleas-in-law for the defender (Ms Crabbe) and reserved all questions of expenses.

 

The Grounds of Appeal

[12]      The grounds of appeal run to 13 separate paragraphs.  Some of these allege procedural errors or irregularities.  Others make a complaint about the conduct and/or alleged partiality of Sheriffs Hamilton and Carmichael at various stages of the process in the sheriff court.  But there are also legal points of substance relating to the 2004 Act and, separately, to the relevant sheriff court Summary Application Rules.  It is convenient to consider first these legal points of substance.  We shall then turn to deal more briefly with the other grounds of appeal.

 

Grounds 1 and 4: Time Bar under the Summary Application Rules

[13]      As is apparent from the narrative taken from Sheriff Carmichael’s judgment, the dispute between the parties is of long standing and has progressively deteriorated.  It started as soon as Ms Humphreys purchased number 84, the upper floor of the property, in 2010.  There had been attempts by the Inverclyde Council to mediate and ensure that necessary maintenance work to the roof, chimney stalks, rainwater pipes and drains (to which we shall refer for short as “the roof etc”) was carried out.  Estimates had been obtained but had been rejected by Ms Crabbe.  The dispute is continuing and shows no sign of being resolved.

[14]      This is the background against which, on 8 May 2014, Ms Humphreys’ solicitor sent a letter to Ms Crabbe setting out Ms Humphreys’ position “one final time in a bid to attempt to resolve this matter amicably and without the need for Court action.”  That letter listed the various problems and referred inter alia to the 2004 Act.  It stated that Ms Humphreys considered that the works required were emergency works.  In the absence of agreement with Ms Crabbe as to a meeting or a positive plan of action for repair works proceeding, “our client will have no option but to proceed to lodge a Summary Application with the Court to have a Sheriff consider an application to have repairs carried out.”  The letter concluded by stating that “if our client receives no response from you within seven days she will be proceeding to have the works carried out without further notice to you.”  She reserved the right to found on that correspondence in any future court action.

[15]      The Summary Application was served on Ms Crabbe on about 16 September 2014, some four months after that ultimatum in the letter of 8 May.  In her pleadings in that application the pursuer (Ms Humphreys) stated that the application was brought in terms of section 6 of the 2004 Act and then explained the problem, the need for maintenance and repairs and the lack of co-operation.  In Article 7 she referred to the burdens section in the parties’ titles which, she averred, provided for the expense of upholding the roof of the building to be borne equally between the parties.  On this basis she averred that although the roof and roof void remained in her ownership as proprietor of number 84, “as the roof effectively forms a roof for 84 and 86 the liability for maintenance is or should be a shared one.”  Reference was made to section 8 of the 2004 Act.  Finally, in Article 10, having stated that the action was necessary and was raised as a last resort, the pursuer referred to the letter of 8 May 2014 from her agents, as showing that the action was necessary.

[16]      Ms Crabbe lodged answers.  Pleadings for both parties were thereafter adjusted.  The defender’s third plea-in-law stated that, because the estimate referred to in crave 1 bore a date more than six months prior to the action being raised, the order sought in crave 1 had prescribed and the defender should be assoilzied.

[17]      This preliminary plea was argued before Sheriff Hamilton on 10 March 2015.  He repelled the plea and refused to dismiss the action.  The first ground of appeal is against this refusal.  It was submitted that the sheriff erred in law in his decision.  As appears from the discussion below, the argument presented in this appeal (and possibly as presented before Sheriff Hamilton) differed somewhat from the terms of that third plea in law for the defender, but no objection was taken and we deal with the argument as advanced before us.

[18]      Ms Crabbe referred to Rule 2.6 of the Summary Application Rules applicable to actions lodged on or after 27 May 2013.  That rule is in the following terms:

“Time limits

 

2.6(1)   This rule applies to a summary application where the time within which the application, being an appeal under statute or an application in the nature of an appeal, may be made is not otherwise prescribed.

 

(2)        An application to which this rule applies shall be lodged with the sheriff clerk within 21 days after the date on which the decision, order, scheme, determination, refusal or other act complained of was intimated to the pursuer.

 

(3)        On special cause shown, the sheriff may hear an application to which this rule applies notwithstanding that it was not lodged within the period prescribed in paragraph (2).”          

 

Under reference to Condescendence 10 and the reference therein to the letter of 8 May 2014, Ms Crabbe argued that that letter, or more precisely the absence of a response to that letter within seven days, amounted to intimation by her to Ms Humphreys of her refusal to agree to the works being carried out; that, in terms of Rule 2.6(2) of the Summary Application Rules, the application required to have been commenced (by lodging with the sheriff clerk) within 21 days thereof (i.e. by about 5 June 2014, the precise date does not matter); that, since the application was not made until September 2014, it was clearly out of time; and the sheriff should have dismissed the action.  We note that the sheriff was not asked to exercise his discretion in terms of Rule 2.6(3).

[19]      We do not accept this argument, essentially for two reasons.  The first is that it pays no regard to the words in the middle of Rule 2.6(1) which make it clear that the Rule only applies to a summary application which is “an appeal under statute” or “an application in the nature of an appeal”.  It is clear that the Summary Application Rules apply in many situations.  Some statutes provide for a decision of a tribunal to be appealed by means of a summary application.  That is “an appeal under statute”.  Similarly, under section 5 of the 2004 Act, an owner who is dissatisfied with a majority decision made under a management scheme may apply to the sheriff by summary application.  That is an example of “an application in the nature of an appeal”.  But the Summary Application Rules are not confined to appeals or applications in the nature of an appeal.  It was not disputed, for example, that it was competent for an owner of a property within a tenement to apply by summary application under section 6 of the 2004 Act: section 6(1) says so in terms.  But such an application need not be an appeal under statute nor is it necessarily an application in the nature of an appeal.  In the present case, whatever its merits, the pursuer’s application by summary application was neither an appeal nor an application in the nature of an appeal.  It follows that the time limits in Rule 2.6(1) have no application to the present case.  The language of Rule 2.6(2) confirms this interpretation.  That shows that the time limit set out in the Rule is concerned to limit the time within which decisions, orders, schemes, determinations, refusals or other acts may be brought before a sheriff.  That is consistent with the requirements of certainty which dictate that where a decision is taken by a tribunal or other body charged with that task or by owners under a management scheme in terms of the 2004 Act, any challenge to that decision should be made promptly.  But it has nothing to do with an application to court by one party complaining about the action or inaction of another.  The failure by Ms Crabbe to respond to the ultimatum in the last paragraph of the letter of 8 May 2014 cannot possibly amount to a decision, order, scheme, determination, refusal or other act within the meaning of that Rule.

[20]      Quite apart from that, even if the time limit had applied to actions such as this, we would not in any event have been persuaded that the failure on the part of Ms Crabbe to respond to the ultimatum in the letter of 8 May 2014 was determinative of the time when an application had to be brought before the sheriff.  It is true that the pursuer in Article 10 of Condescendence referred to that letter as indicating that the action was necessary; but the dispute between the parties has been ongoing over a number of years and continued to be ongoing after the date that that letter was sent and remained unanswered.  In truth there is no one moment at which the defender (Ms Crabbe) can be said to have crystallised her refusal to cooperate so as to trigger the 21 day time limit for making a summary application.  Her refusal is a continuing refusal and it would not be possible, in our view, to pick a particular moment and say that at that moment matters crystallised so as to require the pursuer (Ms Humphreys) either to go to court within 21 days or forever thereafter to hold her peace.  For these reasons we reject the first ground of appeal.

[21]      We should mention at this point Ms Crabbe’s fourth ground of appeal.  In it she complains that Sheriff Hamilton erred in law by failing to provide a note following his interlocutor of 10 March 2015.  The main focus of this complaint was his failure to record other matters which Ms Crabbe thought to be of significance, namely some concession said to have been made at that hearing by counsel for Ms Humphreys.  We reject that complaint.  The provision of a note of decisions made in incidental applications is within the discretion of the sheriff.  His refusal to provide a note raises no issue of law capable of appeal to this court.  Although the sheriff would normally be expected to provide a note where a point of law arose or his decision was determinative of the outcome of the proceedings, he is not obliged to do so.  In so far as this ground of appeal also includes a complaint that Sheriff Hamilton did not provide a note explaining his reasons for not dismissing the application on grounds that it was time-barred, we reject that complaint for the same reasons.  In any event, the sheriff was not in fact asked to write a note explaining his reasons for refusing to dismiss the action on the ground that it was time-barred.  He cannot therefore be criticised for not having done so.

 

Grounds 1, 5, 6, 7, 8, 11 and 12:  Application of the Tenement (Scotland) Act 2004
[22]      We take these grounds together since they raise overlapping points as to the proper construction of the 2004 Act in the context of the provisions of the title deeds allocating responsibility for the cost of maintenance and repair of the roof etc.

[23]      It is convenient here to set out both the relevant provisions of the title deeds (taking in the argument on construction raised by Ms Crabbe) and the main sections of the 2004 Act bearing upon the dispute.

 

The Title Deeds

[24]      The building dates from around 1880.  From early on it was divided into numbers 84 and 86, being respectively the top and ground floor flats.  The extent of number 84 is set out in the “Description” section of Title REN111753.  The “Burden Detail” in the Title provides:

“that the expense of upholding the roof of the building comprising 84 and 86 Forsyth Street, Greenock and chimney stack, rain water pipes and drains, and all other burdens, common or mutual to the said subjects shall be borne equally between the proprietor of the dwelling house 86 Forsyth Street, aforesaid forming the lower flat of the said building”.

 

That burden is said to derive from the Disposition in terms of which number 84 was disponed on 18 May 1920 by Mary Latimer Cook or Gatherer to John Quinn (“the 84 Disposition”).  The relevant burden in the 84 Disposition is in the following terms:

“That the expense of upholding the roof of the said building and chimney stalks, rain water pipes and drains, and all other burdens common or mutual to the said subjects shall be borne equally between the proprietor of the dwelling house before disponed and the proprietor of the dwelling house forming the lower flat of said building”.

 

Two years later, on 31 March 1922, Mary Latimer Cook or Gatherer or Wilson (as she seems to have become) granted a Disposition of number 86 in favour of John Dunn Shannon (“the 86 Disposition”).  In the 86 Disposition the relevant burden is in the following terms:

“That the expense of upholding the roof of the said building and chimney stalks, rain water pipes and drains, and all other burdens, common or mutual to the said subjects shall be borne equally between the proprietor of the dwelling house before disponed and the proprietor of the dwelling house forming the upper flat of said building”.

 

It will be noted that the burdens are virtually identical, with one obvious exception that the burden in the 84 Disposition refers to the other proprietor as the proprietor of the lower flat, whereas the burden in the 86 Disposition refers to the other proprietor as the proprietor of the upper flat.  That is as it should be.  Of more importance for present purposes is that the burden in the 86 Disposition has a comma after the words “… and all other burdens” but there is no comma in that place in the burden in the 84 Disposition.

[25]      In her sixth ground of appeal, Ms Crabbe advances the argument that she is not responsible in terms of the title deeds for the cost of maintaining and repairing the roof.  She argues that the roof belongs to Ms Humphreys as proprietor of the top floor flat (and this is not in dispute).  Referring to the burden in the 86 Disposition she argues that the comma after “… all other burdens” shows that the words that follow, namely “common or mutual to the said subjects”, refer back not only to the “all other burdens” but also to the roof, the chimney stalks, the rain water pipes and the drains; with the effect that the obligation on the owner of number 86 to share the expense of maintenance and repairs only applies to the roof etc to the extent that it is held in common between the owners of the two flats.  Since the roof, the chimney stalks, the rain water pipes and the drains are owned by Ms Humphreys as proprietor of number 84, and are not held in common, the burden in the 86 Disposition imposes no obligation on Ms Crabbe as owner of number 86 to share in the expense of maintenance.

[26]      We reject this argument.  In our view it places too much weight on the position in this burden of a single comma.  We do not seek to downplay the potential significance of punctuation in a syntactical analysis of any particular provision whether that provision be in a contract or, as here, in a title deed or disposition; but where the draughtsman and parties intend a punctuation mark to be of particular significance in understanding the meaning of the provision, we would expect that intention to be evidenced by a careful and consistent use of the mark.  In the present case, had the construction for which Ms Crabbe contends been intended, one might have expected to find the descriptive phrase “common or mutual to the said subjects” closed off by another comma placed immediately after those words.  That might at least have raised the argument that those words were intended to qualify not only “all other burdens” but also the roof, chimney stalks, rain water pipes and drains.  Without that second comma closing off those words, that argument does not get off the ground.  But having said that the argument places too much weight on the position of one comma, we would not wish to rest our decision on the absence of another.  Looking at the matter more broadly, it is clear that both dispositions are intended to provide for the expense of maintaining and repairing the roof, etc. to be borne equally between the proprietors of the top and bottom floor flats.  We do not think any elaboration is required – the point is as simple as that.  But we note, as did Sheriff Carmichael, that in her Answer 7 in the pleadings in the current action Ms Crabbe averred that “the title deeds of both properties provide for maintenance of the roof equally by the proprietors of 84 and 86”.  That remains in her pleadings, and it accords with our construction of the title deeds.  It is not clear why Ms Crabbe has departed from that position.

 

“Tenement” and “scheme property”

[27]      The stated purpose of the 2004 Act is to make provision about the boundaries and pertinents of properties comprised in tenements and for the regulation of the rights and duties of the owners of properties comprised in tenements.  “Tenement” is defined in section 26 of the Act as meaning “a building or a part of a building which comprises two related flats which, or more than two such flats at least two of which- (a) are or are designed to be in separate ownership; and (b) are divided from each other horizontally”.  On that basis the property at numbers 84 and 86 Forsyth Street, Greenock, is clearly a tenement for the purposes of the Act.  Section 4 provides that the Tenement Management Scheme (“the Scheme”) set out in Schedule 1 to the Act shall apply in relation to a tenement to the extent provided by the following provisions of that section.  In terms of Rule 1.1 of Schedule 1 to the Act, the scheme provides for the management and maintenance of the scheme property of a tenement.  “Scheme property” is defined in Rule 1.2 as meaning, in relation to a tenement, (a) any part of the tenement that is the common property of two or more of the owners, (b) any part of the tenement the maintenance of which, or the cost of maintaining which, is, by virtue of a tenement burden, the responsibility of two or more of the owners, and (c), in so far as not otherwise scheme property by virtue of (a) or (b), a number of itemised parts including (iv) the roof of the property including any rafter or other structure supporting it.  On any view, therefore, the roof and chimney stalks, rainwater pipes and drains, etc. are scheme property by virtue of Rule 1.2 paragraph (b), which failing paragraph (c)(iv).  This is what Sheriff Carmichael found in her judgment at finding‑in‑law 2. 

[28]      In her sixth ground of appeal, Ms Crabbe challenges this finding.  She argues, consistently with her written submission dated 29 May 2015 lodged in process in the sheriff court action, that the Procedure for Making Scheme Decisions set out in Rule 2 of Schedule 1 to the Act – which involves a majority decision on the basis of one owner one vote –contemplates that there must be more than two owners, otherwise in the event of a dispute any attempt to reach a scheme decision will result in deadlock.  But this tells one nothing.  That decision making process may result in deadlock however many flats and owners there are within the tenement.  In such cases an application can be made to the sheriff court under section 6 of the 2004 Act.  In any event, such considerations cannot result in property which clearly falls within the definition of scheme property in Rule 1 ceasing to be so.  Accordingly, we reject this argument.  On this basis there can be no doubt, contrary to Ms Crabbe’s argument (in her sixth ground of appeal), that the 2004 Act applies.

 

Provisions of the 2004 Act Concerning Maintenance and Access

[29]      We have already mentioned that in terms of section 4 of the 2004 Act, the Tenant Management Scheme set out in Schedule 1 applies in relation to a tenement to the extent provided in that section.  The term “management scheme” as used in the Act is elastic, defined in section 27 to include (a) Tenement Management Schemes (applying in their entirety to the whole tenement), (b) development management schemes and (c) any tenement burdens relating to maintenance, management or improvement of the tenement.  The tenement burdens in the 84 and 86 Dispositions constitute a management scheme for the purposes of the Act.  Sub-sections (4)-(9) of section 4 make it clear that the terms of any tenement burden take precedence over the decision-making and other provisions of Schedule 1.  But this does not mean that they are not part of a tenement management scheme or that the roof etc falls outwith the definition of scheme property; quite the opposite.  As we have already made clear, the 2004 Act applies even though the tenement burdens provide for the allocation of responsibility for payment of maintenance and repairs to the roof etc.  Section 5 of the Act provides for applications to the sheriff by summary application for an annulment of scheme decisions with which an owner is dissatisfied, and it lays down strict time limits for making any such application.  Section 6 deals with applications to the sheriff for orders resolving other disputes.  This is in the following terms:

“6(1)    Any owner may by summary application apply to the sheriff for an order relating to any matter concerning the operation of –

 

(a)        the management scheme which applies as respects the tenement (except where that management scheme is the development management scheme); or

 

(b)        any provision of this Act in its application as respects the tenement.

 

(2)        Where an application is made under subsection (1) above the sheriff may, subject to such conditions (if any) as the sheriff thinks fit –

 

(a)        grant the order craved; or

 

(b)        make such other order under this section as the sheriff considers necessary or expedient.

 

(3)        A party may not later than fourteen days after the date of –

 

(a)        an order under subsection (2) above; or

 

(b)        an interlocutor dismissing such an application,

 

appeal to the Court of Session on a point of law.

 

(4)        A decision of the Court of Session on an appeal under subsection (3) shall be final.”

 

We should emphasise that an appeal to this court is only on a point of law.  Section 7 abolishes any rule of law relating to common interest to the extent that it applies to tenements.  In place of any such rule section 8 requires an owner of a part of a tenement building (for example, the roof), which provides support or shelter to any other part of the building, to maintain the supporting or sheltering part so as to ensure that it does provide such support or shelter.  An owner who has carried out maintenance to any part of a tenement under section 8 is entitled, under section 10, to recover a share of the cost from other owners, to the extent that those other owners would have been liable had the maintenance been carried out under a management scheme.  Finally, section 17 provides that where an owner gives reasonable notice that access is required to or through their properties for the purpose of carrying out such maintenance, the owners to whom notice has been given shall allow access for that purpose unless, having regard to all the circumstances, it is reasonable to refuse access.

 

Arguments Raised in the Appeal

[30]      In her first ground of appeal (in addition to the time-bar point which we have already considered) Ms Crabbe argues that the Summary Application was “incorrectly raised in law”.  In her fifth ground of appeal she argues that Sheriff Carmichael “has not founded on the proper statutory authority of her right to grant her orders”.  The quotations are from Ms Crabbe’s Note of Argument.  These arguments raise substantially the same point.  The nub of the argument is that section 6(2) of the 2004 Act allows the sheriff hearing the summary application either (a) to grant the order craved or (b) to make such other order under the section as the sheriff considers necessary or expedient.  The Summary Application was made under section 6 (though without identifying which particular provisions within section 6 were relied upon).  In terms of the craves, the pursuer seeks: (at crave 1) an order authorising her to instruct the various works; (at crave 2) an order ordaining the defender to provide access in terms of section 17; and (at crave 3) “such other order under this section 6 as the Sheriff considers necessary or expedient”.  As we understood Ms Crabbe’s submission, she argues that it is incompetent for the court under section 6 of the 2004 Act to grant all three of the orders the sought by the pursuer – the power to make “such other order … as the Sheriff considers necessary or expedient” (crave 3) is an alternative to the power to grant decree in terms of craves 1 and 2 and cannot be exercised cumulatively with it.  The Summary Application was incompetent because it sought an order in terms of all three craves when all three could not competently be granted; and the interlocutor issued by Sheriff Carmichael was incompetent because she made the specific orders sought or variants thereof in addition to such other order as she considered necessary or expedient.

[31]      We do not accept this argument.  The word “or” when used in a statute (or in a contract) may be used conjunctively or disjunctively.  We have no doubt that in section 6(2) of the 2004 Act it is used conjunctively.  In other words, in the context of this section, the sheriff may grant the order craved, or she may make such other order as she considers necessary or expedient, or she may do both.  It follows that the terms of the Summary Application were not incompetent and, equally, that Sheriff Carmichael was entitled to make the orders she did make.

[32]      As an additional point, Ms Crabbe argues (in her fifth ground of appeal) that the Summary Application was incompetent, or defective in some other way, because the pursuer failed to specify precisely which sub-sections of section 6 she was relying on in support of her craves and that she failed to amend her craves to give further specification when invited to do so by Sheriff Hamilton.  We cannot say precisely what happened at the hearing to which Ms Crabbe refers, but we do not accept the submission that the mere failure to specify a particular sub-section renders an action incompetent, irrelevant or defective in any way.  The position might, of course, be different if the failure to identify the sub-section relied upon caused genuine uncertainty as to the relief claimed or the basis on which that relief was claimed, but that is not this case.

[33]      In her eighth ground of appeal Ms Crabbe submits that Sheriff Carmichael erred in law in considering that she had power under section 8 of the 2004 Act to authorise repairs.  Her argument is that under section 8 of the Act an owner has the right to carry out maintenance and repairs to those parts of the building which provide shelter and support to the tenement.  Indeed she is bound to carry out such repairs.  Subject to the terms of any management scheme, an owner who carries out such maintenance and repairs has a right to recover a share of the cost from the owners of other flats within the tenement; and, in the event that those other owners fail to pay, she can apply to the court by summary application.  But, she argues, such an owner is not entitled to apply to the court before having the work carried out.  The sheriff has no power to authorise expenditure on such repairs in advance.  She makes a similar point in her eleventh ground of appeal, where she argues that the sheriff erred in law in making an order granting access over her property for the purpose of erecting scaffolding.

[34]      What Ms Crabbe was saying, as we understood it, was that a person in the position of Ms Humphreys, wishing to carry out repairs to the roof etc and contending that owners of other parts of the tenement ought to contribute, ought properly in terms of the 2004 Act to take matters sequentially.  She should carry out the maintenance and repairs in terms of her obligations under section 8.  If, for that purpose, she required access to parts of the tenement owned by others, she should give notice of that requirement.  Those other owners could refuse to allow access if, having regard to all the circumstances, it was reasonable so to do.  There might be many reasons why access could be refused: for example, because access was not required; or because there was disagreement about the extent and/or likely cost of the repairs; or because of the absence of a proper and up-to-date estimate for the works.  In such circumstances it was open to the owner seeking to carry out the repairs and requiring access to apply to the court (under section 6) to compel the other owners to permit access (under section 17).  But it was not open to her on such an application to ask the sheriff to rule in advance on whether the repairs were reasonable and as to how the cost of carrying out the repairs should be apportioned.  That should be done in the event of a dispute after the work had been carried out.  Bringing the matter before the sheriff before the work was done, for an assessment of what work was necessary and for authority to carry out the work, meant in effect that the court was being asked to micromanage the whole maintenance and repair project.  As was made clear in the Scottish Law Commission Report, Report on the Law of the Tenement (Scot Law Com No 162), that was not the intention behind the Act.  It was also only after the work had been carried out and the owners carrying out the work sought to recover a share of the cost that an owner from whom a contribution was sought could properly be expected to raise a defence that the work had been necessitated by the neglect of the pursuer and previous owners of the upstairs flat and that in consequence she should not be liable to contribute.

[35]      We can see that in many cases it will be appropriate to resolve one issue at a time.  If the only question relates to the reasonableness of access, or the extent of access required for the particular repairs, no doubt an application can be made to the court under section 6 of the 2004 Act for this issue (which arises under section 17) to be determined.  It may be that other issues will arise, which themselves have to be determined, but this will not always be known in advance.  However, the fact that this might sometimes be the convenient course does not mean that it is invariably so.  There is a public interest in disputes being resolved in one litigation rather than several, since that is both more cost-effective for the parties and less resource intensive for the administration of justice.  No question of micromanagement is involved.  In the present case it is perfectly apparent that not only is there a dispute about access but there is also a dispute about what repairs are necessary and at what cost.  In addition there is a dispute as to who should pay for the maintenance and repairs and in what proportion.  In a case such as this it is, we think, obvious that a party ought to be able to come to court seeking an order or orders resolving all such disputes in one litigation.  This is what has happened in the present case.  The pursuer has made a Summary Application under section 6 of the 2004 Act.  In that application she seeks to have the access issue (under section 17) resolved.  She also seeks to have the scope of the necessary works determined by the court, and to have the court rule on the question of liability for such work.  The interlocutor pronounced by the sheriff as a result of all the issues being canvassed before her resolves not only the question of what works require to be done but who is to pay for them in what proportions and what access must be given for them to be carried out.  We see no difficulty in this.  It is a sensible way to proceed.  We see no incompetency in the procedure which was adopted nor any error of law on the part of the sheriff in making the order which she made.

[36]      We note in passing that in her seventh ground of appeal Ms Crabbe contends that Sheriff Carmichael erred in law in failing to consider certain paragraphs of the Scottish Law Commission Report to which we have referred.  We doubt whether, even if this were factually accurate, it could properly be characterised as an error of law.  An appeal under section 6 of the 2004 Act must identify an error of law which has led the sheriff to reach a wrong decision.  It is insufficient merely to say that the sheriff failed to consider certain materials.  Be that as it may, we have no reason to doubt that Sheriff Carmichael did in fact consider those paragraphs in the Report.  It is clear from her judgment that she had the Report well in mind and indeed she quotes extensively from certain other paragraphs of it.  There is nothing in this point.

[37]      As to Ms Crabbe’s complaint that the maintenance and repair work was necessitated by neglect of the pursuer and her predecessors in title, the procedure which the sheriff adopted allowed her to raise this point as a defence.  The sheriff considered it briefly at paragraphs 172-173 and rejected it.  She found that it had been open to Ms Crabbe, if she was of the view that her property was being damaged by neglect of previous proprietors, to have raised actions against them in delict.  No doubt, though the sheriff did not mention this, she could also have made a Summary Application under section 6 of the 2004 Act, relying on the maintenance and repair obligations placed upon an owner under section 8.  She took no such action.  In addition, the sheriff found that Ms Crabbe’s pleadings fell ”far short of making a relevant case that either the pursuer or her predecessors [had] been negligent” and provided no specification of the nature and extent of any damage said to have been caused by the alleged negligence.  In other words, the point was not only open to Ms Crabbe but was taken by her, and she failed to convince the sheriff on the facts.

[38]      In her twelfth ground of appeal Ms Crabbe complains that towards the end of the hearing the sheriff allowed the pursuer at the Bar of the court to alter her Summary Application by dropping her first crave and seeking authority instead to instruct unnamed contractors to carry out the works.  This does not raise any point of law.  It is a matter for the exercise by the sheriff of her discretion.  We are unable to discern any error by the sheriff in the exercise of that discretion.  We are satisfied that in the particular circumstances of this case what the sheriff did was permissible.  The sheriff was clearly satisfied that the tenders referred to in the original crave could no longer be regarded as valid.  Having regard to the conduct of the parties in the dispute, and the conduct of the litigation, she was entitled, in our opinion, to take the view that the pursuer should be entitled to instruct new tenders and to carry out the work on that basis.  She was clearly of the view that no prejudice would be caused to Ms Crabbe by adopting this course.  We need not go into her reasoning in any detail but, in our view, it is compelling.

 

Grounds 3, 9, 10 and 12:  Alleged Procedural Errors and Irregularities
[39]      In grounds of appeal 3, 9, 10 and 12 Ms Crabbe makes various complaints about the way the case was handled at various times.  She complains in her third ground of appeal that Sheriff Hamilton erred in law on 18 June 2015 in not discharging the hearing fixed for a few days later.  She invokes her right to a fair trial in terms of Article 6 ECHR and complains that she was not given time to consider documentation and to answer it.  In her ninth ground of appeal she complains that Sheriff Carmichael erred in law and breached her right to a fair hearing in her interlocutor of 5 October 2015 by not admitting certain productions tendered by her at a late stage.  In her tenth ground of appeal she complains that Sheriff Carmichael erred in law in her interlocutors of 5 October 2015 and 1 March 2016 in not dismissing the action when, so it is alleged, the pursuer had failed to copy her in on all her productions.  Finally, as already noted in paragraph [38] above, in her twelfth ground of appeal she complains that Sheriff Carmichael erred in law in allowing the pursuer at a late stage to drop her first crave and to seek authority for the work to be done by tradesmen other than those identified in that crave – she complains that this was totally unreasonable and that the sheriff ought to have required the pursuer to amend her pleadings and then given her time to seek legal advice on the matter.

[40]      These are all matters which are properly within the discretion of the sheriff hearing the case.  In all such cases the sheriff will have regard to his or her duty to ensure that the proceedings are conducted fairly and that the parties’ rights to a fair trial are not infringed.  At times the sheriff will make decisions with which one party disagrees.  That is in the nature of decisions made by a sheriff in the exercise of his or her discretion in the course of the litigation.  But unless a disappointed party can identify some error on the part of the sheriff in exercising his or her discretion – classically by failing to understand the law, or taking into account something which should not have been taken into account or failing to take into account something which should have been taken into account – this court, on appeal, cannot interfere.  No error of law will have been identified; and, as we have pointed out, appeals to this court under section 6 of the 2004 Act are only on points of law.  In these grounds of appeal nothing of that sort can, in our view, properly be identified.  Although criticisms are made that certain decisions were unfair to Ms Crabbe and breached her right to a fair trial, it is not suggested that the sheriff failed to have regard to any relevant considerations.  The complaint is simply that the sheriff reached a decision with which Ms Crabbe is dissatisfied.  We have no reason to doubt that in this case in reaching their decisions, including the decisions complained of, both Sheriff Hamilton and Sheriff Carmichael had their duty to ensure a fair trial well in mind.  Nothing in the grounds of appeal or the submissions made to us by Ms Crabbe persuades us otherwise.  These grounds of appeal are without merit.

 

Grounds 2 and 13:  Lack of Impartiality

[41]      In her second ground of appeal Ms Crabbe complains that Sheriff Hamilton erred in law in his interlocutor of 10 March 2015 in refusing her motion made at the Bar that counsel for Ms Humphreys should not be allowed to represent her at that hearing.  The background, as we understood it, involves a partnership dispute going back to the late 1990s involving the pursuer and WA & Co, a firm of solicitors in which she had been a partner.  The pursuer was represented in that dispute by another firm of solicitors, against whom she later brought a complaint.  According to Ms Crabbe, counsel for Ms Humphreys had at the relevant time been a partner in the firm against whom she made her complaint.  We do not think it helpful or appropriate to go into the details of this matter.  Ms Crabbe argued that because of this background, counsel should not have been allowed to act for Ms Humphreys in this case.  We were told by counsel that he had not in fact been a partner in the firm at that particular time, but we cannot decide this point simply on the basis of statements made at the Bar.  There is, in our view, a more fundamental objection to this point.  Whereas it goes without saying that a judge in a case must be unbiased, without any personal interest in the case or any personal, professional or business relationships which might give rise to concern that his judgment will be influenced for or against either party, there is no similar requirement of a legal representative for one of the parties.  A party in court is entitled (within limits laid down by law) to be represented by the solicitor or advocate of his choice.  Of course that solicitor or advocate is obliged to comply with all relevant codes of conduct and to conduct the case on behalf of his client within the rules laid down.  And there will be cases, we suppose, where prior involvement on the part of that solicitor or advocate may mean that he is privy to relevant information which would make it inappropriate that he should act in a particular case.  But that is a long way from the present case where all that is suggested is that counsel for Ms Humphreys had some financial stake in a firm of solicitors with which she was in dispute.  Even assuming that to be correct, that would not disqualify him from acting.  Nor would it entitle the court to prevent him acting in the case.  This is not the occasion for a detailed review of the powers of the court to determine who can and cannot appear in a case on behalf of one or other party.  Rights of audience are now governed by statute, and we would need to be persuaded that the court had the power in any particular case to prevent someone who has such a right of audience from exercising it on behalf of his client.  However, we need not decide this point.

[42]      In her thirteenth ground of appeal Ms Crabbe complains that Sheriff Carmichael erred in law in failing to conduct herself so as to be seen to be impartial.  In her Note of Argument it is explained that the complaint is that the sheriff had, in the past in her practice as advocate, acted on a number of occasions for a firm of solicitors against whom Ms Crabbe had made a complaint.  Again, we do not think it appropriate to go into the details of the underlying dispute.  There is nothing in this point.  It is commonplace for judges to hear cases where one of the parties is represented by a firm of solicitors from whom that judge has accepted instructions in the past.  Indeed, that is almost inevitable in a system where judges are appointed from the ranks of solicitors and advocates who have had experience of appearing in court.  If a judge were to recuse himself whenever a case involved a firm of solicitors for whom he had previously acted, the administration of justice would grind to a halt.  The present complaint does not even raise that issue, since the firm of solicitors from whom the sheriff is said to have accepted instructions in the past was not acting for either party in this case; it was simply a firm with which Ms Crabbe had had (and possibly still has) a long running dispute.  This ground of appeal fails.

 

Disposal

[43]      For all the above reasons the appeal is refused.  We reserve all questions of expenses.