Scottish Sheriff Court Decisions

Kirkwall, 15^th October 2002

The Sheriff Principal, having heard counsel for the appellants and the solicitor for the respondents, sustains the appeal, recalls the interlocutor of the sheriff dated
25^th September 2001, dismisses the summary application and finds no expenses due to or by either party in respect of the appeal; quoad ultra finds the respondents liable to the appellants in the expenses of the cause, allows an account thereof to be given in, remits the same to the auditor of court to tax and to report and thereafter remits to the sheriff to proceed as accords.

Note

1. In this case the defenders and appellants are the tenants of a farm. The pursuers and respondents are the landlords. On 29^th January 2001 the latter presented a summary application to this court. The application contained a single crave in the following terms:-

The Pursuer respectfully craves the Court to grant Warrant to Officers of Court summarily to eject the Defender and his family, sub-tenants, cottars and dependants with their cattle, goods and gear furth from the lands of The Bu Farm, Hoy in the Parish of Orkney and to leave the same void and redd, that the Pursuer or others in his name might enter thereto and peaceably possess and enjoy the same; and to find the Defenders liable in expenses.

The pursuers aver that the farm in question is let by a verbal let by themselves to the defenders. It is said that there is no written lease and that the defenders have ceased to pay rent. The pursuers aver that they issued a demand in writing to the defenders requiring them to pay arrears of rent, that these were not paid and that on 19^th March 1999 the pursuers served on the defenders notice that they were required to remove from the farm at Martinmas 2000 in terms of section 22(2)(d) of the Agricultural Holdings (Scotland) Act 1991. The pursuers then say that the defenders have refused or delayed in removing and that they (the pursuers) accordingly seek warrant to eject the defenders in terms of section 36 of the Sheriff Courts (Scotland) Act 1907 as amended.

2. The application was duly warranted and intimated to the defenders who were ordained to appear on 13^th March 2001 under certification of being held as confessed. It was called in court that day, and there were several further callings thereafter. For present purposes I need not rehearse the details of these. The upshot was that on 25^th September 2001 the sheriff pronounced an interlocutor in terms of which he granted decree as craved except that he made no order in relation to the expenses of the application.
3. The defenders marked an appeal against this interlocutor. After a very long delay, I heard counsel for the appellants and the solicitor for the respondents on the appeal on 15^th October 2002.
4. In opening the appeal counsel for the appellants submitted that it was not competent for the pursuers to pursue the remedy sought by them by means of a summary application. Having regard to the terms of section 35(1)(c) of the Sheriff Courts (Scotland) Act 1971 ("the 1971 Act"), they should have presented their claim in the form of a summary cause. Reference was made to Gill: The Law of Agricultural Holdings in Scotland (3^rd Edn) at paragraph 21.02.
5. In response, the respondents' solicitor drew attention to section 21(4) of the Agricultural Holdings (Scotland) Act 1991 ("the 1991 Act") which provides: "(4) The provisions of the Sheriff Courts (Scotland) Act 1907 relating to removings shall, in the case of an agricultural holding, have effect subject to this section". She then referred to section 36 of the Sheriff Courts (Scotland) Act 1907 ("the 1907 Act") which provides: "36. Where lands exceeding two acres in extent are occupied by a tenant without any written lease, and the tenant has given to the proprietor or his agent no letter of removal, the lease shall terminate on written notice being given to the tenant by or on behalf of the proprietor, or to the proprietor by or on behalf of the tenant not less than six months before the determination of the tenancy, and such notice shall entitle the proprietor, in the event of the tenant failing to remove, to apply for and obtain a summary warrant of ejection against the tenant and everyone deriving right from him". It was submitted that in light of this provision the correct procedure for recovery of an agricultural holding where the appropriate notice to quit had been served upon the tenant (as it had been in this case) was to make an application for a summary warrant of ejection. Reference was made to the style of application for this purpose which is to be found in Dobie's Sheriff Court Styles, page 416, and which had been followed in the present case. Reference was also made to Macphail's Sheriff Court Practice (2^nd Edn) paragraph 23.12, and in particular the last sentence thereof which reads: "Where decree for the recovery of possession is granted in a summary cause, it has the same force and effect as a decree of removing, or a decree of ejection, or a summary warrant of ejection, or a warrant for summary ejection in common form, or a decree pronounced in a summary application for removing, in terms of sections 36, 37 and 38 respectively". It was submitted that this passage vouched the proposition that the present application had been brought in the proper form, and so was competent.
6. I had little difficulty in deciding that the submission for the appellants was to be preferred (and in passing I should mention that it is clear that this submission was not made before the sheriff). Read short, section 35(1) of the 1971 Act provides: "...... for the purposes of the procedure and practice in civil proceedings in the sheriff court there shall be a form of process, to be known as a "summary cause", which shall be used for the purposes of all civil proceedings brought in that court, being proceedings of one or other of the following descriptions, namely - .... (c) .... actions for the recovery of possession of heritable ..... property, other than actions in which there is claimed in addition, or as an alternative, to ..... such recovery .... a decree for payment of money exceeding £1,500 in amount (exclusive of interest and expenses)". The present action is a civil proceeding in the sheriff court, it is an action for the recovery of possession of heritable property, and there is no additional or alternative claim. It follows in my opinion that it should have been raised as a summary cause and that it was not competent to have raised it as a summary application.
7. I do not think that section 21(4) of the 1991 Act in any way undermines this conclusion. As I understood her, the respondents' solicitor read this sub-section as meaning that the provisions of the 1907 Act relating to removings should have effect in the case of an agricultural holding with the result that the pursuers were entitled to rely upon section 36 of that Act. But this is not what section 21(4) says. Section 36 of the 1907 Act remains in force in any event, and all that section 21(4) of the 1991 Act does is to provide that, in the case of an agricultural holding, section 36 should have effect subject to section 21 of the 1991 Act (which, in short, provides that the tenancy of an agricultural holding shall not come to an end except by operation of a notice which complies with certain specified conditions notwithstanding any agreement or any provision in the lease to the contrary). The form of application for a summary warrant of ejection in terms of section 36 of the 1907 Act is not there specified and, whatever may have been the position before the 1971 Act came into force, it is in my opinion plain in light of section 35(1)(c) that an application such as has been made by the pursuers in this case which is not accompanied by a crave for any other type of remedy must be made in the form of a summary cause. Indeed rule 30.3 of the Summary Cause Rules 2002 (which is the successor to rule 69 of the Summary Cause Rules 1976 which itself was the basis of the passage in Macphail relied upon by the respondents' solicitor) specifically provides that, when decree for the recovery of possession of heritable property is granted, it shall have the same force and effect as "(c) a summary warrant of ejection" in terms of section 36 of the 1907 Act.
8. It is not clear from the style of writ on page 416 of Dobie's Sheriff Court Styles whether it was envisaged that this should form the basis of an ordinary action on the one hand or a summary application on the other. But it appears from what is said in Dobie's Sheriff Court Practice at page 413 that an application under section 36 would be treated as an ordinary cause. In light of rules 34.5 to 34.11 of the Ordinary Cause Rules, it might be thought that an ordinary action, rather than a summary application, would indeed be the appropriate vehicle for an application under section 36 of the 1907 Act that fell outside the scope of section 35(1)(c) of the 1971 Act. But this whole area of the law is not free from doubt. Thus in Campbell's Trustee v O'Neill 1911 SC 188 Lord Johnston observed at pages 191/2: "The Sheriff Courts Act, 1907, in sections 34-38, makes provision for removings which, whether intended as a complete code or not, is manifestly very incomplete. But it does more: in its general repeal of statutes it purges a good deal of previous legislation on the same subject.......The result has been, I am persuaded, to throw the whole matter, which was by no means devoid of confusion at any rate, into still greater confusion" - and see also Rankine on Leases (3^rd Edn) at page 571 and Dobie's Sheriff Court Styles at page 414, note 6. It may be that it was at least in part due to this confusion that Parliament saw fit to enact section 35(1)(c) of the 1971 Act.
9. I should record that counsel for the appellants advanced a number of other submissions in support of their appeal. In view of my conclusion on his opening submission, I need not express any opinion on these additional submissions, and it is probably wiser in the circumstances that I should not do so.