Scottish Sheriff Court Decisions

Act: Mr Stewart Smith, solicitor, Raeburn Christie, Aberdeen

Alt: Mr Adrian Stalker, solicitor, Shelter Housing Law Service

Aberdeen: 19^th January 2004

The sheriff principal, having resumed consideration of the cause, answers the first question of law in the affirmative and the second question of law in the negative; therefore refuses the appeal and adheres to the decision of the sheriff dated 30^th January 2003 and the final decree pronounced by the sheriff on 6^th March 2003; finds no expenses due to or by either of the parties in respect of the appeal.

Note

1. In this summary cause the pursuers and respondents are the landlords, and the defender and appellant the tenant, of a house in Aberdeen. The tenancy agreement was constituted by a written agreement between the parties dated 16^th and 17^th April 1997. It is not in dispute that this was an assured tenancy within the meaning of section 12 of the Housing (Scotland) Act 1988 ("the 1988 Act"). Clause 17.4 of the agreement provided that it might be ended by the pursuers issuing a Notice to Quit to the defender. This they did on 27^th September 2000 when there were admittedly arrears of rent due by the defender in the sum of £966.63. On the same date the pursuers served on the defender a notice as they were required to do by section 19 of the 1988 Act.
2. On 23^rd November 2000 the pursuers raised the present action. By then the arrears of rent had risen to the sum of £1,131.25 which, it is accepted, exceeded three months rent. The pursuers sought decree for payment of this sum and an order for possession of the house in terms of ground 12 in Part II of Schedule 5 of the 1988 Act (which, in short, applies where the rent is in arrears). Section 18(4) of this Act provides that, if the sheriff is satisfied that any of the grounds in Part II of Schedule 5 to the Act is established, he shall not make an order for possession unless he considers it reasonable to do so.
3. It appears that in the early months after the action had been raised there were several continuations to monitor payments by the defender. Eventually decree in absence was granted against her on 23^rd August 2001. She subsequently lodged a minute for recall of this decree, and the decree was duly recalled on 11^th October 2001 when the case was continued to monitor payments by her. After further continuations, on 28^th February 2002 a defence was stated on her behalf to the effect that it was not reasonable for her to be evicted. The case was then sisted to allow her to apply for legal aid. On 16^th May 2002 the sist was recalled and a hearing was fixed for 28^th June 2002. On that date she failed to appear or be represented. A hearing under rule 28(1) of the old Summary Cause Rules 1976 was therefore fixed for 1^st August 2002. A solicitor appeared for her on that date and on joint motion the case was continued for negotiation to 12^th September 2002. On that date it was again continued on joint motion to monitor payments until 5^th December 2002 when it was again continued to see if the defender could make proposals for repayment. There was a further continuation on 16^th January 2003 to 30^th January 2003. On that date the defender's solicitor withdrew from acting. The defender herself was not present and the pursuers' solicitor moved for decree as craved in terms of rule 28(3). It was pointed out that the arrears of rent then exceeded £1,800. The sheriff found that in light of the extent of these arrears it was reasonable to make an order in favour of the pursuers for recovery of possession of the house, and after the amount of the pursuers' expenses had been fixed by the sheriff clerk final decree was pronounced against the defender on 6^th March 2003.
4. On 20^th March 2003 a note of appeal was lodged on behalf of the defender and the sheriff thereafter prepared a stated case in the usual way. It contained one question of law namely: "1. Was I entitled to grant decree for recovery of possession of the subjects?". In the course of the hearing of the appeal I allowed a second question to be added as follows: "2. As I granted decree without having been informed of the defender's circumstances, as narrated in the note of appeal, should this appeal be allowed in the interests of justice?".
5. The greater part of the note of appeal is taken up with an explanation of the defender's failure to appear or be represented on 30^th January 2003 and of why, according to her, it would not be reasonable for an order for recovery of possession to be granted against her. I shall revert in due course to these matters, to address which the new question 2 was introduced. To begin with I propose to deal with the second ground of appeal which is that the order for possession of the house was not competently granted by the sheriff, the action having been raised under the provisions of the 1988 Act and the defender's tenancy having become, so it was said, a Scottish secure tenancy on 30^th September 2002 with the result that an order for recovery of possession of the house could only be competently granted in proceedings raised under the Housing (Scotland) Act 2001 ("the 2001 Act") (which admittedly has not happened).
6. In order to understand the issue raised by this second ground of appeal, it is necessary to notice some of the provisions of both the 1988 Act and the 2001 Act and also two orders made by the Scottish Ministers under the latter Act. Section 12(1) of the 1988 Act provides that a tenancy under which a house is let as a separate dwelling is for the purposes of the Act an assured tenancy if and so long as (a) the tenant or, as the case may be, at least one of the joint tenants is an individual, and (b) the tenant or, as the case may be, at least one of the joint tenants occupies the house as his only or principal home, and (c) the tenancy is not one which ...... cannot be an assured tenancy. As already indicated, it is not in dispute in the present case that the defender's tenancy was, at least at the outset, an assured tenancy within the meaning of section 12 of the 1988 Act. Section 16(1) of this Act provides for what is to happen after the termination of a contractual tenancy which was an assured tenancy. It is accepted in this case that the defender originally had a contractual tenancy which was an assured tenancy and that this contractual tenancy was terminated when the pursuers served the Notice to Quit on the defender on
   27^th September 2000. Section 16(1) provides: "(1) After the termination of a contractual tenancy which was an assured tenancy the person who, immediately before that termination, was the tenant, so long as he retains possession of the house without being entitled to do so under a contractual tenancy shall, subject to section 12 above and sections 18 and 32 - 35 below (a) continue to have the assured tenancy of the house; and (b) observe and be entitled to the benefits of all the terms and conditions of the original contract of tenancy so far as they are consistent with this Act ...... and references in this Part of this Act to a "statutory assured tenancy" are references to an assured tenancy which a person is continuing to have by virtue of this sub-section....." Section 16(2) provides: "(2) A statutory assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the sheriff in accordance with the following provisions of this Part of this Act". The provisions here referred to are those in particular in sections 18 - 20 of the 1988 Act. These provisions set out the conditions upon which a sheriff may make an order for possession of a house let on an assured tenancy, and it is in reliance upon them that the pursuers raised the present action against the defender.
7. Section 11(1) of the 2001 Act provides: "(1) A tenancy of a house is a Scottish secure tenancy if - (a) the house is let as a separate dwelling, (b) the landlord is - (i) a local authority landlord, (ii) a registered social landlord, or (iii) a water authority or sewerage authority, specified, or of a description specified, in an order made by the Scottish Ministers, (c) the tenant is an individual and the house is the tenant's only or principal home, (d) where the landlord is a registered social landlord which is a co-operative housing association, the tenant is a member of the association, and (e) the tenancy - (i) was created on or after such date as the order may specify in relation to the landlord, or (ii) was created before that date and is of a description specified in the order in relation to the landlord". The order here referred to is the Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc.) Order 2002 (SSI 2002 No. 318) which was amended by the Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc.) Amendment Order 2002 (SSI 2002 No. 415). The first of these orders makes certain transitional provisions and savings in relation to the right of a tenant to purchase his home and in relation also to rent and rent determination. The order also specifies in a schedule the types of tenancy referred to in section 11(1)(e)(ii). This schedule was itself replaced by a schedule annexed to the amending order, and the effect of this revised schedule is that, in the case of registered social landlords (which the pursuers admittedly are), a tenancy created before 30^th September 2002 falls within the scope of section 11(1)(e)(ii) if it is a secure tenancy or an assured tenancy (but not a short assured tenancy). The references here to a secure tenancy and to a short assured tenancy may be ignored for present purposes. The expression "assured tenancy" is not defined in either of the orders, but in section 111 of the 2001 Act (under various sections of which, including section 11(1), the orders were made) it is provided that the expression "assured tenancy" has the same meaning as in Part II of the 1988 Act (which includes section 12). Read short therefore, the condition in section 11(1)(e)(ii) is that the tenancy should have been created before 30^th September 2002 (which the defender's was), the landlord should be a registered social landlord (as the pursuers are) and the tenancy should have been an assured tenancy within the meaning of section 12(1) of the 1988 Act (as the tenancy in this case was and, if the pursuers' argument is correct, still is).
8. Sections 14 to 16 of the 2001 Act set out the procedure to be followed where a landlord under a Scottish secure tenancy wishes to raise proceedings by way of summary cause for recovery of possession of the house in question. In particular, section 14(2) provides for the service by the landlord on the tenant of a notice in a prescribed form. It is not in dispute that such a notice has not been served upon the defender in this case with the result that, if on 30^th September 2002 her tenancy became a Scottish secure tenancy as defined by section 11(1) of the 2001 Act, the sheriff could not competently have made an order for recovery of possession of the defender's house. On the other hand, if her tenancy is not now a Scottish secure tenancy, but instead remains a statutory assured tenancy within the meaning of section 16(1)of the 1988 Act, then the provisions of sections 18 and 19 of this Act still apply with the result that it was competent for the sheriff to have made an order for possession of the house.
9. The word "tenancy" in section 11(1) of the 2001 Act is defined in section 41 of the same Act where it is said that "tenancy" means "an agreement under which a house is made available for human habitation and "lease" and related expressions are to be construed accordingly". The word "tenant" as it appears in section 11(1) is also defined in section 41 where it is provided that "tenant" means "a person who leases a house from a landlord and whose right in the house derives directly from the landlord, and in the case of a joint tenancy means all the tenants".
10. At first blush these provisions appear decidedly complex. But at the end of the day the question raised by the defender's second ground of appeal is a straightforward one. In a nutshell it is whether after 30^th September 2002 the defender's tenancy became a Scottish Secure tenancy within the meaning of section 11(1) of the 2001 Act. If it did, then, as indicated, the sheriff could not competently have made an order for recovery of possession of the house in the current proceedings. If it did not, then it was competent for the sheriff to have made the order.
11. Opening the appeal, the defender's solicitor submitted that the order for possession of the defender's house could not competently have been granted by the sheriff since her tenancy was no longer an assured tenancy within the meaning of the 1988 Act. On 30^th September 2002 it had become a Scottish secure tenancy in terms of the 2001 Act with the result that, after that date, a decree for recovery of possession of the house could only be granted in terms of the 2001 Act. In order to obtain such a decree, the pursuers were required to serve a notice in terms of section 14 of the Act. This they had not done, and accordingly the defender sought dismissal of the action.
12. The defender's solicitor explained that Part 2 of the 2001 Act provided for a new statutory regime for tenancies in the socially rented sector. Previously, local authority tenants had been secure tenants in terms of Part III of the Housing (Scotland) Act 1987 while tenants of housing associations had been assured tenants in terms of Part II of the 1988 Act (which also applied to tenants of private landlords). The rights afforded to tenants under the secure tenancy regime were generally more substantial, particularly with regard to security of tenure, succession and assignation, than those afforded to assured tenants. The Scottish Executive had considered this division within the socially rented sector to be unsatisfactory, and the purpose of Part 2 of the 2001 Act was to create a single statutory tenancy for tenants of local authorities and housing associations. Furthermore, the Executive had determined that in order to achieve uniformity of tenure the new regime should apply not only to tenancies created after the commencement of the relevant provisions of the Act (30^th September 2002) but also to existing tenancies. These aims had been reflected in section 11(1) of the 2001 Act and the two orders that had been made thereunder. The effect of these, said the defender's solicitor, had been that on 30^th September 2002 every assured tenancy where the landlord was a registered social landlord had become a Scottish secure tenancy. The defender's solicitor then referred to section 11(2) of the 2001 Act which provides that an order under section 11(1) "may ....... make provision for ensuring that rights of the landlord, the tenant and any other person under or in relation to a tenancy which becomes a Scottish secure tenancy by virtue of the order are not adversely affected by the tenancy becoming a Scottish secure tenancy". The defender's solicitor pointed out that the orders which had been made made transitional and saving provisions in relation to the rights of tenants to buy their homes and rent reviews. But there were no such provisions in relation to court proceedings which had been raised by registered social landlords against assured tenants under the 1988 Act before 30^th September 2002 and which were still outstanding on that date (as in the present case). In the absence of such provisions, after 30^th September 2002 an order for possession of a house could not, so it was submitted, be granted in any action which had been raised by a housing association under the 1988 Act since from that date such an order could be granted only in terms of Part 2 of the 2001 Act.
13. The defender's solicitor referred to section 16(1) of the Interpretation Act 1978 which provides, inter alia, that where proceedings are raised under an enactment that is subsequently repealed those proceedings are not affected by the repeal. By virtue of section 125 of, and paragraph 16 of Schedule 8 to, the Scotland Act 1998, section 16 of the 1978 Act also applied where an Act of the Parliament at Westminster was repealed by an Act of the Scottish Parliament. But the provisions of section 16(1) of the 1978 Act did not apply to proceedings raised by housing associations under the 1988 Act since the relevant provisions in that Act (and in particular sections 18 and 19) had not been repealed by the 2001 Act. Thus they still applied, said the defender's solicitor, to tenancies in the private sector and actions for recovery of possession raised by private landlords. By contrast, those sections in the 1987 Act which dealt with proceedings for recovery of possession of houses subject to secure tenancies had been repealed by the 2001 Act with the result that actions for recovery of possession raised by local authorities in terms of the 1987 Act which were still extant on 30^th September 2002 were unaffected by the commencement of the 2001 Act. But since the equivalent provisions in the 1988 Act had not been repealed by the 2001 Act, actions which had been raised by housing associations under that Act which were extant on 30^th September 2002 were not saved by the provisions of section 16(1) of the 1978 Act. It followed, as already indicated, that the defender's tenancy having become a Scottish secure tenancy on 30^th September 2002 the pursuers thereafter could not competently seek an order for recovery of possession of her house otherwise than by following through the procedures set out in the 2001 Act (which they had admittedly not done). After 30^th September 2002 an order for recovery of possession of the defender's house could, so it was argued, no longer competently be granted in terms of the provisions of the 1988 Act. The effect of Part 2 of the 2001 Act, and in particular sections 11 to 16 thereof, had been, according to the defender's solicitor, to "pull the rug" out from under the feet of housing associations such as the pursuers in the present case who had raised actions for recovery of possession before 30^th September 2002 which were still extant on that date.
14. Responding to these submissions, the pursuers' solicitor pointed out that the parties had originally entered into a written tenancy agreement in April 1997, and it had been in terms of this contract that an assured tenancy had been created within the meaning of section 12(1) of the 1988 Act. A Notice to Quit had been served by the pursuers on the defender on 27^th September 2000 and this had admittedly had the effect of terminating the contractual tenancy between the parties. But the effect of section 16(1) of the 1988 Act had been that, so long as the defender retained possession of the house thereafter, she continued to have the assured tenancy of it. She had then become a statutory assured tenant having the rights of an assured tenant under section 16(1)(a) and (b). But she was no longer an assured tenant since the original contract between the parties had come to an end. In other words, she was no longer occupying her house under the original contract but under a right given to her by Parliament in terms of section 16(1) of the 1988 Act.
15. The pursuers' solicitor then referred to sections 11 and 41 of the 2001 Act, and in particular the definitions of "tenancy" and "tenant". He submitted that these definitions could only refer to a contractual lease agreement with the result that it was only if there had been a contractual lease agreement in place on 30^th September 2002 between the parties that the defender could have had a tenancy which would have become a Scottish secure tenancy under section 11 of the 2001 Act. There had, said the pursuers' solicitor, been no oversight in the drafting of the relevant legislation as suggested by the defender's solicitor. The contractual agreement between the parties in this case had been brought to an end and thereafter the defender derived no rights in her home directly from the pursuers. Such rights as she had in the house were derived from the provisions of section 16 of the 1988 Act. It was a pre-requisite of the creation of a Scottish secure tenancy on 30^th September 2002 that the defender should have occupied her house under an agreement. Since the agreement in this case had come to an end before 30^th September 2002 the defender's right to occupy the house could never have become a Scottish secure tenancy. In other words, since on 30^th September 2002 she had not had a tenancy within the meaning of sections 11(1) and 41 of the 2001 Act, there was no question of her tenancy (which was of course a statutory assured tenancy under section 16 of the 1988 Act) having become a Scottish secure tenancy. In any event, submitted the pursuers' solicitor, the defender's tenancy was not an assured tenancy as defined in the schedule to the amending order made under section 11(1) of the 2001 Act. On the contrary, it was a statutory assured tenancy. It followed from all this that the present action had been unaffected by the coming into force of the 2001 Act. The correct procedures had been carried out by the pursuers under the 1988 Act and it had therefore been competent for the sheriff to grant an order for possession of the defender's house.
16. In a brief reply on this point, the defender's solicitor drew attention to section 31 of the 1988 Act which provides in short that, where the sole tenant under an assured tenancy dies, the tenant's spouse shall, as from the death and for so long as he or she retains possession of the house without being entitled to do so under a contractual tenancy, be entitled to a statutory assured tenancy of the house. The defender's solicitor submitted that, if the argument of the pursuers' solicitor was correct, then no person who had before 30^th September 2002 become a statutory assured tenant under either section 16(1) or section 31 of the 1988 Act could have become a Scottish secure tenant on that date in terms of section 11(1) of the 2001 Act. Moreover, in the schedule to the amending order, referring as it did to assured tenancies, it could have been made clear that these did not include statutory assured tenancies if it had been the intention that these last should not become Scottish secure tenancies on 30^th September 2002. Furthermore, the expression "agreement" which appeared in the definition of "tenancy" in section 41 of the 2001 Act was apt to include the situation where a tenant had before
    30^th September 2002 occupied his or her house as a statutory assured tenant in terms of section 16(1) of the 1988 Act. Thus the defender's tenancy in the present case had indeed become a Scottish secure tenancy on 30^th September 2002.
17. In my opinion the defender's tenancy in this case did not become a Scottish secure tenancy on 30^th September 2002 in terms of section 11(1) of the 2001 Act. On the contrary, it remained in my view a statutory assured tenancy under section 16(1) of the 1988 Act. It could only have become a Scottish secure tenancy if it had been a tenancy as defined in section 41 of the 2001 Act. It will be observed that the definition there of "tenancy" does not say that this includes an agreement under which a house is made available for human habitation. What it says is that a "tenancy" means such an agreement. In other words, they are one and the same thing and, if there is no agreement, there can be no tenancy within the meaning of section 41 of the 2001 Act, and hence no tenancy which can become a Scottish secure tenancy in terms of section 11(1). It is not in dispute in this case that the agreement between the parties was terminated on 27^th September 2000 when the pursuers served a Notice to Quit on the defender. Thereafter there was no agreement extant between them, the defender's continued right to occupy the house being referable instead to the statutory assured tenancy granted to her in terms of section 16(1) of the 1988 Act. And, since there was no agreement between them, there was no tenancy which could have become a Scottish secure tenancy under section 11(1) of the 2001 Act.
18. Moreover, it is to be observed that in terms of section 11(1)(a) of the 2001 Act the first condition of a tenancy becoming a Scottish secure tenancy is that the house in question should be let as a separate dwelling. In section 41 it is provided not only that "tenancy" means an agreement under which a house is made available for human habitation but also that "lease" and related expressions are to be construed accordingly. In other words, the word "let" where it appears in section 11(1)(a) must mean "let in terms of an agreement under which a house is made available for human habitation". This the defender's house was not on 30^th September 2002, so for this reason too it could not have become a Scottish secure tenancy on that date. It follows in my opinion that the validity of the current proceedings was not undermined by the coming into force on 30^th September 2002 of the relevant provisions of the 2001 Act with the result that it was competent for the sheriff to have granted an order for possession of the defender's house under sections 18 and 19 of the 1988 Act.
19. For the sake of completeness, I should perhaps mention that in the course of his submissions the defender's solicitor referred me to an unreported decision of Sheriff Stoddart at Edinburgh on 22^nd January 2003 and an unreported decision of Sheriff Veale at Dundee on 19^th May 2003. In each case an action for an order for possession of a house had been raised under the provisions of the 1988 Act before 30^th September 2002 but had not been concluded until after that date. Sheriff Stoddart sustained the defender's plea to the competency of the proceedings and granted decree of dismissal whereas Sheriff Veale rejected the defender's submission on competency and granted decree in favour of the pursuers in the action before him. For present purposes I do not think that it is necessary to examine in detail the reasoning of either sheriff since it appears that neither of them was referred to section 41 of the 2001 Act.
20. Turning to the merits of the appeal, the defender's solicitor drew attention to the explanation which had been stated in the note of appeal for her failure to appear on 30^th January 2003. This explanation reads as follows:

The case called on the 30^th January 2003. A defence had previously been stated by the Defender. The Defender's agents, sought the Court's leave to withdraw from acting for the Defender, which was granted. The Pursuers' agents moved for decree which was granted by the Sheriff. The Defender was not present or represented.

The Defender's agents are Adrian Stalker & Co. a legal practice in which the solicitors are employed by the charity Shelter (Scotland), to undertake cases referred by the charity's Scottish Housing Aid Centres. The practice also operates under the name "Shelter Housing Law Service". It is based in Edinburgh. At callings of the case prior to the 30^th of January, the Defender was represented by a solicitor from Messrs Ledingham Chalmers, instructed by Adrian Stalker & Co as their agents.

The Defender is profoundly deaf and mute. She cannot be contacted by telephone. She also has difficulty in reading and understanding letters. Accordingly, the Defender's agents have encountered problems in obtaining her instructions prior to the callings of the case. She was previously advised to remain in regular contact with Shelter's Aberdeen Housing Aid Centre, so that she could be informed of the progress of the case and what, if anything, was required of her prior to the next calling. In addition, the Defender's agents have been able to take her instructions through her social worker, Lindsey Anderson.

Prior to the calling on the 30^th of January, the case had called on the 16^th of January. The Defender had not made the payments she was supposed to have made since the previous calling on the 5^th of December 2002. The Defender's agents had not received her instructions prior to the 16^th of January. On that date the case was continued to the 30^th January to enable them to seek her instructions. They wrote to the Defender and her social worker, asking for clarification of her position, and explaining that they would have to withdraw from acting if no contact was made. On the afternoon of the 28^th of January a fax was sent to the office of the Defender's agents by Lindsey Anderson, confirming that the Defender wished them to propose a payment of 230 (sic) per month towards rent and arrears. In addition, the fax confirmed that the Defender had an outstanding application for backdated state benefits which, if successful would enable her to meet some of the shortfall in recent payments.

Due to an administrative error, that fax was not brought to the attention of the Defender's solicitor, but placed with papers for filing. As a result it was not placed with the Defender's file before instructions were issued to Messrs Ledingham Chalmers to seek the court's leave to withdraw from acting. Had the Defender's solicitor been aware of the terms of the fax, he would not have issued those instructions. He would have asked them to seek a further continuation for payment, or move for a further proof to be fixed.

The Defender wishes to defend this action on the basis that it would not be reasonable for an order for recovery of possession to be granted against her. She wishes to make payments towards her arrears, and now has the social work support in the management of her finances. Due to her disability, she would have difficulties in coping with finding other accommodation.

21. The defender's solicitor pointed out that in terms of section 18(4) of the 1988 Act the sheriff had been obliged not to make an order for possession of the defender's house unless she had considered it reasonable to do so. It was accepted that on 30^th January 2003 the arrears of rent due by the defender had exceeded £1,800. It was accepted too that it had been competent for the sheriff to grant decree by default against the defender in terms of rule 28(3) of the old Summary Cause Rules 1976. But since decree had been granted against her as a result of an accidental set of circumstances which had occurred in her agents' office, and since she wished to defend the action and had a defence to it, it would be in the interests of justice that she should be reponed so that her defence could be heard. In this context it was to be observed that at the end of her stated case the sheriff had said that she had not been informed of any of the information set out in the note of appeal and that, had she been so informed, she might have allowed a continuation of the case on 30^th January 2003.

 

22. The defender's solicitor referred here to Hyslop v Flaherty 1933 SC 588, McKelvie v The Scottish Steel Scaffolding Co Ltd 1938 SC 278 and Differ v GKN Kwikform Ltd 1990 SLT (Sh.Ct.) 49. In the first of these cases the defender had appeared at a diet of proof before the sheriff without his agent. In respect that he had not moved for a further diet or paid the dues of court, the sheriff-substitute had held him as confessed and granted decree in favour of the pursuer. On appeal to the Court of Session his counsel moved to allow him to be reponed on condition that he should make payment to the pursuer of the expenses due to, and resulting from, his failure to proceed at the diet of proof. At page 590 the Lord Justice Clerk (Alness) observed: "That appears to me to be a fair proposal. I think that the ends of justice require that it should receive effect. In that view I feel myself completely unembarrassed by any of the cases referred to by the pursuer's counsel in his excellent speech. There is no general rule in such a matter as this; each case must turn on its own circumstances. In some cases the court has reponed; in others it has refused to repone. In this case, in view of the condition to which the defender's counsel assented on behalf of his client, I move your Lordships that we should allow the defender to be reponed". The remaining judges in the Division concurred.
23. In McKelvie the pursuer sought decree for payment against the defenders. The latter failed to appear at a peremptory diet which had been fixed by the sheriff-substitute with the result that he granted as craved against them. Their appeal to the Court of Session was dismissed, the court holding that, while it would always be reluctant to pronounce a decree by default against a defender who had a substantial defence, it was clear in that case from the open record and from the statements made by counsel that there was no substantial defence to the action. At pages 280/1 the Lord President (Normand) stated: "I should be extremely reluctant that a decree pronounced against any defender should become final where there was a substantial defence which had never been heard ....... I should have been willing to consider whether the interlocutor (of the sheriff-substitute) should not be recalled if the case as pleaded before us had disclosed any substantial defence ...... The record, we must remember, has not yet been closed, but, after hearing what has been said for the defenders, I am clear that there is no real defence to the action ....... Accordingly, I think the circumstances disclose that we are dealing with a case where the defences are dilatory and are not in themselves meritorious. For that reason, I approach the question whether we ought, in the exercise of our discretion, to allow the defenders to be reponed against the decree from a very different angle from that which I would have approached it if this had been a case in which there was a substantial defence. I think that, so far from doing any injustice to the defenders if we refuse this appeal, we should be doing injustice to the pursuer if we interfered with the course (taken by the sheriff-substitute)". And at page 281 Lord Moncrieff stated: "I am of the same opinion. I also would be most reluctant, in any case in which prima facie there appeared to be a proper case put forward, to allow decree to pass against the defender without investigation of that defence. Even if carelessness on the part of the defender or others for whom he had been responsible had delayed the course of the procedure of the action, I should, in such a case, always be willing to entertain an application for relief. I regard the present case however, as wholly exceptional. It is clear ...... that there are here no merits in the defence".
24. In Differ Sheriff Principal Macleod observed at page 51F/H: "The overriding principle is the principle of the interests of justice: "The cases on this line suggest that it is contrary to the interests of justice that a person who has a case which is not a frivolous case should, because of some mistake or negligence of his law agent, be prevented from having the judgement of the court on his case, and there seems no reason in principle why the other party should get the fortuitous advantage of winning not on the merits, but because of the conduct of the opposing solicitor". This statement of the law was given by Lord Justice Clerk Thomson in Graham v Wylie & Lochhead, 2^nd Div., 17^th November 1949, unreported. It is a most useful summary of the law emerging from a number of reported decisions on this question, and I respectfully adopt it as expressing the paramount principle applicable to a case of this kind.
25. A summary of these decisions is to be found in paragraphs 14.11 and 14.12 of Macphail's Sheriff Court Practice (2^nd Edn) which I understood the defender's solicitor to accept as an accurate statement of the law on this matter.
26. The defender's solicitor candidly stated that he could not shrink from the fact that the circumstances of the present case were such that the defender's defence on the merits was a difficult one. Nonetheless it was not a frivolous one nor one without merit and accordingly she should be given another chance to persuade the sheriff that it would not be reasonable to grant an order for possession of her house. Since 30^th January 2003 the defender's payment record (and I quote the exact words of the defender's solicitor) "has been to say the least extremely poor with the result that the arrears have gone up by a considerable amount". In this situation the defender's solicitor indicated that he could only emphasise the unusually difficult circumstances faced by the defender herself which were outlined in a letter from her social worker Lindsey Anderson dated 24^th December 2003.
27. This letter is addressed to the defender's solicitor and reads as follows (Morrice is the defender's maiden name):

Dear Mr Stalker

Re: Ms Carol Morrice, 35 Heathryfold Place, Aberdeen

I am writing on behalf of the above Profoundly Deaf lady who has been a client of mine since 1995.

Ms Morrice's difficulties with her rent payments began 3 years ago when returning to work following being a housewife and mother. Arrears began due to initial delays in housing benefit.

Ms Morrice did make attempts to pay her arrears but this has been sporadic. She has had several different jobs and this too has caused problems in maintaining regular payment.

Ms Morrice's health plays a major part in this case. She has several bouts of depression and this too has led to her dismissal from employment. She also experiences high levels of stress and this affects her sleep and eating habits.

The other major concern is Ms Morrice's current partner. He moved into her home in April 2002 and has had two short periods when he did not live there, until the present day. He is not employed and relies on Ms Morrice. They have a joint claim for benefit at the moment. However, Ms Morrice claims her partner spends all the money and she has no finances left to pay for arrears. For a period of six months, at least, Ms Morrice was the only one claiming benefit and having to support her partner at the same time.

Ms Morrice's daughter also resided with them until November 2002. This too had caused Ms Morrice difficulty in payment arrears as she was also supporting her daughter. The situation did improve after she left but soon spiralled when domestic violence became a more regular pattern for Ms Morrice and her partner. Her daughter stated that there had been periods of violence when she resided at Heathryfold Place but that these have become more pronounced over recent months.

I continue to work closely with the Domestic Violence Unit at Grampian Police to monitor the current situation. At our meeting today, Ms Morrice presented with bruising to her legs and injured lip alleging that this was due to her partner. (The Police are also aware of the incident). Due to her communication needs, Police Officers are unable to understand when they call at her home and this can make the situation worse. She is clearly very emotionally distressed at the moment.

Ms Morrice informs me that she will be making a payment to Grampian Housing on 5^th January 2004 towards arrears. She begins employment with Tesco on 27^th December 2003 and will be paid monthly. She has agreed to return and visit me on Tuesday 6^th January to arrange Direct Debit payments (including arrears) to Grampian Housing.

Please do not hesitate to contact me should you require any further information.

Yours sincerely

(Sgd) Lindsey Anderson

Lindsey Anderson

Social Worker

28. In summary the defender's solicitor submitted that in cases of this kind the court had a very wide discretion to determine whether or not it was reasonable to grant an order for possession of a house. The court was required to consider all the relevant circumstances, and this had not happened in the present case. There was, so it was said, a meaningful weighing exercise to be carried out by the court in light, on the one hand, of the admittedly high arrears of rent due by the defender and, on the other hand, her particular and very difficult circumstances. This weighing exercise could only be properly done at a diet of proof (and here it was to be observed that such a diet had in fact been fixed at an earlier stage in the proceedings). In all the circumstances the decree by default pronounced by the sheriff should be recalled and the defender allowed to be reponed.
29. In response to these submissions the pursuers' solicitor referred to three separate statements of the arrears due from time to time by the defender, the details in all of which were admitted by the defender's solicitor. These showed that as at 31^st March 1999 there were no arrears of rent due by the defender. That remained the position until 17^th March 2000 when the arrears began to accumulate. By 22^nd August 2001 they had risen to £1,129.23 and since then very few payments of rent had been made by the defender herself with the result that by 30^th January 2003 the arrears had amounted to £1,987.18. Since then there had been one payment of £230 made by the defender on 4^th February 2003 but otherwise nothing had been paid by her since 30^th January 2003. As a result further arrears of £1,660.36 had accumulated in 2003 alone so that as at the date of the final statement, namely 5^th January 2004, the arrears totalled altogether £3,647.54 (being £1,987.18 plus £1,660.36).
30. The pursuers' solicitor submitted in this context that it was important also to consider the position of the pursuers themselves and their responsibilities to their other tenants. They were social landlords and a non-profit making body. They had a long waiting list of people who wanted a tenancy and were willing to pay the necessary rent. No reasonable excuse had been put forward by the defender for her failure to pay rent herself, especially during the year 2003. It was acknowledged that her circumstances might be difficult, but she could have made payments of rent if she had wished to do so, despite her deafness. She had a social worker assigned to her who would have been able to help her for this purpose. It was understood that she was at present in employment. She had made various offers of payment towards the arrears in the past and these had not been adhered to. The pursuers' Housing Officers had visited her on numerous occasions and still she would not make payments towards the arrears. If need be she could communicate by means of written notes. If all the pursuers' tenants had arrears of rent in excess of £1,000 the pursuers' undertaking would collapse. In all these circumstances it was reasonable that the sheriff should have made an order for possession of the defender's house and reasonable too that this order should stand now.
31. In a brief reply, the defender's solicitor stated that he could not shrink from her poor payment record. But he did not accept that no explanation had been given for her failure to make payments since the decree had been granted by the sheriff. He referred here to the letter dated 24^th December 2003 from the defender's social worker, and in particular the references to her violent partner.
32. It is clear enough from what is said in the note of appeal that it was on account of an administrative error on the part of the defender's agents rather than any fault on her her own part that she was not represented before the sheriff on 30^th January 2003. So, if it had appeared that she had had any real prospect of persuading the sheriff now that it would not be reasonable to grant the order for possession against her, I should have had no difficulty in concluding that she should be reponed and the decree by default recalled. I do not doubt that she has not had her difficulties to seek. These are clearly outlined in her social worker's letter of 24^th December 2003 (and it is also said in the note of appeal that, due to her disability, she would have difficulties in coping with finding other accommodation). But the fact remains that since
    17^th March 2000 - that is, over a period of almost four years now - the arrears of rent due by her have been allowed to accumulate so that as at 5^th January 2004 they stood at £3,647.54. Moreover, as the statements produced by the pursuers' solicitor demonstrate, she made only a few irregular payments of rent in 2002, and only one payment in 2003 - on 4^th February 2003, to be precise, shortly after the sheriff had granted the order sought against her (albeit that there were subsequently in 2003 two payments of Housing Benefit and one very small payment by the Department of Social Security). In these circumstances I consider that, if she had to reconsider the matter now, the sheriff would be driven inexorably to the conclusion that it would be reasonable to grant an order for possession of the defender's house in terms of section 18(4) of the 1998 Act. Accordingly I think that this is one of those admittedly rare cases in which it would not be appropriate to allow the defender to be reponed against the decree by default pronounced by the sheriff, and I have therefore answered the second question of law in the negative.
33. It was agreed that no expenses should be found due to or by either of the parties regardless of the outcome of appeal.