Scottish Sheriff Court Decisions

Act: Ms Browne

Alt: Stalker

1. This is a hearing on an incidental application lodged by Gary McKie (the applicant) under chapters 14 and 24 of the Summary Cause Rules 2002.
2. The action is an action for recovery of heritable property. The defender was the pursuers' tenant by virtue of a Missive of Let between the parties in accordance with Part III of the Housing (Scotland) Act 1987 and Part II, Chapter 1 of the Housing (Scotland) Act 2001. The case called on 21 February 2003. The defender did not lodge a response form, but she appeared in court and was heard by the sheriff when the case called. Having heard parties, the sheriff granted decree for removing of the defender, and her family, subtenants and dependants (if any) from the property.
3. The defender subsequently lodged a minute for recall of the decree of February 2003. On 4 March 2003 the court held the minute to be incompetent and refused to recall the decree.
4. It is agreed that the applicant is, or was, a "qualifying occupier" within the meaning of sections 14 and 15 of the Housing (Scotland) Act 2001. He is a member of the defender's family aged at least 16 years.
5. Section 14(1) of the 2001 Act provides that the landlord under a Scottish secure tenancy may raise proceedings for recovery of possession of the house. Section 14(2) provides that such proceedings may not be raised unless certain conditions are satisfied. Among other things, the landlord must first serve on the tenant and any qualifying occupier a notice complying with section 14(4) of the Act.
6. Section 15 of the Act provides that where a qualifying occupier applies to the court to be sisted as a party to the proceedings under section 14 the court must grant the application.
7. The applicant states in his application that he has a right to be sisted as a party to the proceedings. He states that he wishes to defend the proceedings on two grounds, namely (1) that the proceedings are incompetent, on the ground that no notice complying with section 14(4) was served on him, and (2) that it would not be reasonable for recovery of possession to be granted in favour of the pursuers.
8. In addition, the applicant has lodged a minute for recall of the decree of 21 February 2003, "in his capacity as a qualifying occupier in terms of section 14" of the Act.
9. Mr Stalker, for the applicant, submitted that his minute for recall was competent and should be granted. Having recalled the decree, the court should then grant the applicant's application to be sisted as a party and allow him to state a defence. Mr Stalker accepted that the minute for recall must be considered first, since otherwise there would be no "proceedings" to which the applicant could be sisted as a party.
10. Rule 24.1(1) of the Summary Cause Rules provides, inter alia, that a party may apply for recall of a decree under rule 7.1 or 8.2(5), (6) or (7), by lodging a minute explaining the party's failure to appear and, in the case of a defender, stating his proposed defence. Rule 24.1(2) provides that a party may apply for recall of a decree in the same action on one occasion only. The decree in this case was a decree under rule 7.1 and not under rule 8.2(5), (6) or (7).
11. Rule 7.1(4) provides that where no form of response has been lodged in an action for recovery of heritable property, the action shall call in court on the calling date and the sheriff shall determine the action as he sees fit. That is what happened in this case, with the speciality that the defender appeared in court and was heard by the sheriff before he granted decree.
12. Mr Stalker submitted that the word "party", in rule 24.1(1) should be held to include the applicant. He referred to Macphail on Sheriff Court Practice, paragraph 7.24, Pearson and Jackson v Alison (1871) 9 M 473, Barrie v Hosie 1933 SLT (Sh Ct) 39 and The British Anchor Pottery Co Ltd v J & W Cowan & Co (1950) 66 Sheriff Court Reports 279. He also referred to A &E Russell Ltd v General Maintenance International 1993 SLT (Sh Ct) 83, a case in which he submitted the Sheriff Principal would have expressed himself differently if the earlier cases had been before him.
13. Ms Browne, for the pursuers, pointed out that there was no statutory requirement on the pursuers to serve the action on qualifying tenants. There was a requirement to serve the statutory notice. The pursuers had done so, and the applicant's assertion that they had not was false. She referred to the sheriff officer's execution of service, with the court papers, in which he certified that he served the notice on the appellant personally on 8 November 2002.
14. Ms Browne submitted that the decree granted on 21 February 2003 was not a decree in absence but was a decree in foro and a final judgement within the meaning of section 3(h) of the Sheriff Courts (Scotland) Act 1907. Only decrees in absence could be recalled. Reference was made to Macphail on Sheriff Court Practice, paragraph 7.18.
15. Ms Browne referred to the decision of the Sheriff Principal in City of Edinburgh Council v Ure, Sheriffdom of Lothian and Borders, 24 November 2003. In that case, the Sheriff Principal indicated, albeit obiter, that he agreed with the decision of the sheriff that a minute for recall was not competent in circumstances where the defender had failed to lodge a response form but had appeared personally and had been heard by the sheriff.
16. Ms Browne founded on the decision in A &E Russell Ltd v General Maintenance International for authority for the proposition that only a defender could competently lodge a minute for recall. She submitted that the cases of Pearson and Jackson v Alison and Barrie v Hosie were distinguishable from this case.
17. Ms Browne submitted that as there had already been one minute for recall in this action there could not competently be another. If the applicant was "a party" for the purposes of rule 24.1(1), allowing him to lodge a minute for recall, then he was "a party" for the purposes of rule 24.1(2), which prohibited "a party" from applying for recall of a decree on more than one occasion.
18. Ms Browne founded on certain dicta, at p 163 of the report, in the case of City of Edinburgh Council v Swann 2001 SLT (Sh Ct) 161. In that case, the Sheriff Principal decided that the existence of the dispensing power contained in the Summary Cause Rules did not affect or detract from the general rule that an interlocutor which has been extracted is no longer appealable. I have found the Swann case to be of little assistance in deciding this case.
19. Ms Browne made submissions on the second limb of the applicant's proposed defence, namely that it would not be reasonable for recovery of possession to be granted in favour of the pursuers. She referred to City of Edinburgh Council v Forbes 2002 Housing Law Reports 62. I regard these submissions as either premature or unnecessary. If and only if the applicant's minute for recall and incidental application are granted there will be a first hearing. The Forbes case gives some guidance on how such a hearing may be conducted in a case of this sort, but is of no relevance at this stage.
20. I take a similar view of Ms Browne's point about the untruthfulness of the applicant's claim never to have been served with a notice complying with section 14(4) of the Act. That is a matter that can only be dealt with if and when the stage is reached for the applicant to state a defence.
21. Ms Browne intimated that if the applicant were to be sisted as a defender to the action the pursuers would seek to amend the summons to include a crave for payment by him, jointly and severally with the original defender, of the outstanding arrears of rent. That, again, is a matter that could only be considered if and when the stage is reached for the applicant to state a defence.
22. It appeared that the decree of 21 February 2003 has not been implemented to any extent. No execution of charge or execution of arrestment was placed before the court.
23. The authorities cited by Mr Stalker all concerned ordinary actions, and were concerned with the interpretation of statutory provisions that entitled "a defender" to be reponed against a decree in absence. In each case, the fundamental ground for interpreting the words "a defender" as including the person seeking to be reponed rested on the fact that that person, in each case, was entitled to be sisted as a defender in the action.
24. The makers of the Summary Cause Rules must be taken to have been aware of these authorities and that the rules relating to reponing in ordinary actions have been interpreted in such a way as to permit a person who would be entitled to be sisted as a defender in an action to be reponed against a decree in absence. Here, the legislation clearly lays down that in summary cause proceedings for recovery of possession of a house subject to a Scottish secure tenancy a qualifying occupier is entitled to be sisted, not as a defender perhaps, but as a party to the proceedings. The legislative intention seems clear. Once sisted as a party, as a party minuter or a defender, a qualifying occupier must surely be entitled to put forward whatever facts or legal arguments are available to him to resist the crave for recovery of possession.
25. The effect of reponing, in ordinary causes, and recall, in summary causes and small claims, is much the same. The person reponed, or the person seeking recall, is restored to the position he would have been in if decree had not been granted. It seems to me, therefore, that the words "a party" in rule 24.1 should be interpreted to include a person, such as the applicant, who would be entitled to be sisted as a party to the proceedings.
26. I agree that the Sheriff Principal in A &E Russell Ltd v General Maintenance International would have adopted a different interpretation of the word "defender", where it occurred in what was rule 19 of the Summary Causes Rules, if the earlier cases had been before him.
27. Rule 24.1 permits applications for recall of decrees granted under rule 7.1 or 8.2(5), (6) or (7) only. It is accepted that the decree here was not granted under rules 8.2(5), (6) or (7). Can it be maintained that the decree was granted under rule 7.1?
28. Rule 7.1(4) deals with the situation where no form of response has been lodged in an action for the recovery of heritable property. In such a situation, the case must call in court on the calling date and the sheriff shall determine the action as he thinks fit. In this case, there was no form of response lodged, by anyone, and the sheriff determined the action on the calling date by granting decree. On a simple view of the matter, that seems to have been what happened in this case.
29. The pursuers' answer, though, is that rule 7.1 deals with undefended actions, in which decree, if granted, is decree in absence. If a defender appears, even if he has not lodged a response form, and has been heard, and decree is granted, then the decree is not a decree in absence but is a decree in foro, just as much as if a form of response has been lodged and a hearing, in terms of rule 8.2(1), has taken place. At such a hearing, the sheriff may, in certain circumstances, grant decree in whole or in part in favour of any party: rules 8.3(3)(c) and (d). Such a decree would be a decree in foro. Rule 24.1 does not permit recall of decrees granted under rule 8.3(3).
30. Some support for this approach may be found in City of Edinburgh Council v Ure, where the Sheriff Principal gave his opinion that a minute for recall was not competent in circumstances where a defender, despite the fact that he had failed to lodge a response form, had appeared personally and had been heard by the sheriff. In rule 24.1, the words "failure to appear" in relation to an action for the recovery of heritable property meant failure to present oneself formally before the court at the calling of the case by attending personally or being lawfully represented. In giving his opinion on that matter, the Sheriff Principal was not addressing a situation where the person who had lodged a minute for recall was not some one who had been called as a defender, but was a person who had not been called as a defender, and was a person entitled by statute to be sisted as a party to proceedings.
31. The applicant was not called as a defender in this action. The action was not served on him. Not being a party to the action, he could not lodge a form of response. Not being a party to the action, he could not just "appear", without being sisted as a party. He did not appear. The words "failure to appear", where they appear in the rule, were maybe not enacted with qualifying relatives in mind. If they have any content, though, in the case of a reponing note by a party who has not appeared but would have been entitled to be sisted, they must in my opinion be read as referring to failure to appear by the party seeking recall of the decree.
32. The concept of a decree in foro relates to ordinary actions. In procedure under the Ordinary Court Rules such a decree cannot be reponed against, because it is not a decree in absence. The competency of the minute for recall of decree in this case depends not on the terms of any rule relating to ordinary causes but on the terms of rule 24.1 of the Summary Cause Rules.
33. In Pearson and Jackson v Alison, Lord Neaves, at page 474, referred to the statutory provision allowing reponing as "a beneficial enactment, which is to be largely interpreted." In my opinion, the same approach should be taken to the interpretation of rule 24.1. If Parliament has made provision to enable qualifying relatives to be sisted in proceedings, and the word "party" in the rule is to be taken to include such a person, then it is appropriate, in my view, to read the rule 24.1 as entitling a qualifying relative to apply for recall of a decree which has been granted in his absence, albeit that it may not have been a decree in absence as far as a party called as a defender is concerned. In other words, the decree in this case may have been a decree under rule 8.3(3) as far as the defender was concerned, but it was a decree under rule 7.1 as far as the applicant was concerned.
34. Minutes before I was due to give my decision in this case, I was passed a copy of a decision by Sheriff Principal McInnes dated 2 April 2004, in a case of North Lanarkshire Council v Kenmure, in Hamilton Sheriff Court. I gave parties an opportunity, which they took, of addressing me further in the light of that decision. In my respectful opinion, the same can be said of that decision as I have said of A &E Russell Ltd v General Maintenance International, namely that the Sheriff Principal would have adopted a different interpretation of the word "defender", where it occurred in what was rule 19 of the Summary Causes Rules, if the earlier cases, founded on by Mr Stalker, had been before him. The rule is "a beneficial enactment, which is to be largely interpreted."
35. I do not consider that there is merit in the submission that because there has been an earlier minute for recall in this case the appellant's minute is incompetent. The rule does not say, "There will be no more than one minute for recall in an action". It says that "a party may apply for recall on one occasion only." This party, the applicant, has not previously applied for recall and in my opinion may do so now.
36. I am conscious that this decision, if sustained, may have undesirable consequences. There may a number of qualifying relatives in any one case. Given that minutes for recall, if competent, must be granted, landlords could face a series of hearings covering more or less the same ground. They could, of course, prevent that happening by implementing their decree , but whether hasty enforcement of decrees for recovery of heritable property by non-private landlords is desirable is another matter.
37. Be that as it may, my decision is that the crave of the minute for recall must be granted. There is then no obstacle to the applicant seeking to be sisted as a party and I have no discretion in that matter. He will therefore be sisted as a party and called upon to state his defence.

cecvmckie.revd.jmt.doc