Scottish Sheriff Court Decisions

Act: Miss C McCrossan, North Lanarkshire Council

Alt: No appearance for the defender and respondent

HAMILTON: 2 April 2004

The Sheriff Principal having resumed consideration of the appeal allows same; recalls the interlocutor of 20 November 2003 recalling the decree at the instance of William Kenmure and fixing a proof; finds no expenses due to or by either party in respect of the appeal.

NOTE:

1. At the outset of the appeal the agent for the appellants sought leave to add an additional ground of appeal in the following terms:

"The Sheriff erred in law in granting the application."

The motion was made in view of the second question in the stated case. I saw no reason to object to this addition.

2. This is an action for recovery of possession of heritable property tenanted by Ian Kenmure against whom decree was granted in absence. Decree was also granted for payment of £1,500.00 of arrears of rent. I was informed that no charge had followed on that decree in respect of these arrears. The action was based on the Housing (Scotland) Act 2001, section 14. Notices had been served in terms of that Act on the defender as tenant and on Elaine Kenmure, his wife, as a qualifying occupier. Decree in absence was granted on 11 April 2003 and was extracted on 28 April. On 27 August solicitors for Mrs Kenmure lodged a minute to recall the decree. A hearing was fixed in relation to that minute. It was refused on 3 October. On 23 October solicitors acting for William Kenmure, the son of the defender, lodged a minute to recall the decree, explaining that he was unaware that he could appear as a third party and defend the action; that he was a qualifying occupier and that he had not been served with a notice of proceedings in terms of the 2001 Act. It was explained that the defender was estranged from the family.
3. Before the Sheriff it was argued on behalf of William Kenmure that he was entitled in terms of section 14(2)(a) of the 2001 Act to be served with a notice of the proceedings but that no such notice had been served on him. Because he had not been served with a notice of the proceedings he could not have applied to the court to be sisted as a party to the action: he had no knowledge of it. It was agreed that whether or not he was a qualifying occupier in terms of the Act was a question of fact which required to be determined by evidence. The Sheriff took the view that, because the Act provided for notice to be given to qualifying occupiers who could be sisted as parties to proceedings under section 14 of that Act, a third party claiming to be a qualifying occupier, who had not received notice and was not aware that decree had been granted against the tenant, was entitled to seek recall of the decree so that he might state a defence to the action. He accordingly granted the minute for recall of the decree which had been lodged by William Kenmure.
4. In the course of the appeal the agent for the appellant argued that the appeal should be allowed and that the Sheriff's interlocutor of 20 November 2003 should be recalled. She submitted that William Kenmure was not a "party" in terms of Rule 24.1 of the Summary Cause Rules 2002. Secondly, he was not a party to the action. Thirdly, he was not a party against whom a decree had been or could have been granted. Rule 24.1(1) did not define "party". It was clear from 24.1(4) that a party could include a third party but "third party" had a specific meaning in terms of chapter 11 of these Rules. A third party in that context was a party who had been called as such by the defender by service of a third party notice. It was accepted that in terms of section 15 of the 2001 Act a qualifying occupier could apply to become a party to the proceedings, but William Kenmure had not entered the process either in terms of the Summary Cause Rules or in terms of the 2001 Act before the proceedings were completed. Before it could be determined whether he was a qualifying occupier, it was accepted that the decree would have to be recalled. Chapter 24 of the Summary Cause Rules regulated the recall of decrees. If it had been intended that any person who might have any kind of possible interest in the case should be able to apply to have a decree recalled, the Rule would have said so. If it had been intended that persons other than pursuers, defenders and third parties (defined by the Summary Cause Rules) should be able to apply for recall of a decree the Rules would have so provided. They did not.
5. Only persons against whom a decree had been granted could apply to have that decree recalled. See MacPhail on Sheriff Court Practice, second edition, paragraph 30.124, where the phrase "against whom decree has been granted" was used, and City of Glasgow Council v Murray 1998 Housing LR27. In that case the Sheriff Principal had held that the application was incompetent because it was an application by one party to have a decree against another party recalled. The dictionary definition of the word "party" included "a person or persons taking part in legal proceedings". William Kenmure had never played any part in these proceedings. He was not a party in terms of Rule 24.1 and accordingly could not seek to have the decree against his father recalled. In these circumstances the minute for recall was incompetent. The Sheriff had no locus to recall the decree. Before there could be any further procedure in relation to this matter there required to be a competent recall of the decree. There could be no such recall in this case. In these circumstances the appeal should be allowed.

Decision

6. The Housing (Scotland) Act 2001, section 14 provides that proceedings for recovery of possession of the house may not be raised unless the landlord has served on the tenant and any qualifying occupier a notice complying with sub-section (4). Before serving a notice the landlord must make such enquires as may be necessary to establish, so far as is reasonably practicable, whether there are any qualifying occupiers of the house and, if so, their identities. A qualifying occupier means a person who occupies the house as that person's only or principal home and who is, amongst other things, a member of the tenant's family aged at least 16 years. In terms of section 15 of that Act "where a qualifying occupier applies to the court to be sisted as a party to proceedings under section 14, the court must grant the application". In this case the Council do not accept that William Kenmure was a qualifying occupier. He did not apply to the court to be sisted as a party to the proceedings until after those proceedings were completed, i.e. after decree had been granted. Such an application was made for the first time, by way of incidental application, in the course of the hearing before the Sheriff as to whether or not the decree should be recalled. It was accepted, as I understand it, that that application could not be considered unless and until decree had been recalled.
7. The question is whether it was open to the Sheriff in the circumstances of this case to recall that decree in terms of chapter 24 of the Summary Cause Rules 2002. Rule 24.1(1) provides that a party may apply for recall of a decree by lodging a minute with the Sheriff Clerk explaining the party's failure to appear. A minute may be lodged by a "third party", but, unless the action was served on the party seeking recall outwith the United Kingdom, it must be lodged within 14 days of the execution of a charge or execution of arrestment, whichever first occurs, following on the grant of decree. It appears that there was no charge executed nor any arrestment in this case. Rule 24.1 appears to apply only to pursuers, defenders and third parties who have become parties to the action. It does not appear to apply to a potential third party who never became involved in the action at all prior to its disposal by the granting of decree. Third parties who have had the action served on them outwith the United Kingdom have a reasonable time after they had knowledge of the decree against them to lodge a minute for recall. The whole tenor of that Rule, insofar as it relates to third parties, appears to be directed to a situation in which they are parties to an action albeit that they are neither a pursuer nor a defender. I do not accept that third parties are restricted to those parties who have been brought into the action by a third party notice. That phrase should be construed broadly, so as to include parties who have been sisted as parties at their own instance, e.g. in terms of the Housing (Scotland) Act 2001, section 15.
8. On what appears to me to be a proper construction of Rule 24.1 William Kenmure was not a third party for the purposes of that Rule and was not entitled to apply for recall of a decree. I accept that, if he was a qualifying occupier, he had a right to apply to be sisted as a party to the proceedings under section 15 of the 2001 Act. But once these proceedings were completed he was no longer able to exercise that right. Assuming that the Council had made such enquiries as were necessary to establish, so far as reasonably practicable, whether there were any qualifying occupiers on whom a notice required to be served, it is difficult to see how William Kenmure, if he was a qualifying occupier, could have exercised that right unless he became aware in some other way of the proceedings. Section 15 of the 2001 Act also appears to contemplate proceedings which have been commenced but which have not been completed. There appears to be no good reason, either in that section or in Rule 24.1 why the court should be able, still less obliged, to recall an otherwise competent decree granted against a party to the proceedings at the behest of a person claiming to be a qualifying occupier who had played no part in, nor been a party to, the proceedings prior to their completion - especially if the application is made long after decree was granted. For these reasons I have allowed the appeal.
9. If it had been appropriate to consider the merits of this application at all, which I accept it is not, there would have been a further reason for refusing this appeal. In the incidental application which was lodged on his behalf William Kenmure contemplated obtaining paid employment so that he and his mother, who had commenced full-time employment, would "between them (be) able to pay the weekly rent and money towards the arrears". At the time when the action was commenced on 30 January 2003 the amount of rent claimed to be in arrears was £1,500.00. No payments of rent were said to have been made since that time, with the result that the arrears are now of the order of £4,400.00. To allow the decree granted in this case to be recalled by a person who had not been party to the proceedings would open the door to further and unjustifiable delay and would unquestionably have been prejudicial to the Council. I mention this to indicate that the balance of the legislative provisions in the 2001 Act and the Summary Cause Rules may well be about right and not in need of change.