Scottish Sheriff Court Decisions

Dumbarton 9 December 2003 Act: Bauld for Respondent

The Sheriff Principal, having heard parties' procurators, Answers the Question of Law in the negative; Refuses the appeal and Finds no expenses due to or by either party in respect of the appeal.

BA KERR

Note:

In this summary cause action for recovery of possession of heritable property and of arrears of rent decree passed against the defender on 25 June 2003 when she neither appeared nor was represented. The action had been commenced in March 2003 and first called on 14 May 2003 when the defender was represented (by a friend) and the sheriff continued the case until 25 June 2003 to allow for negotiation of the payment of arrears. Following on the passing of decree on that date a document purporting to be a minute for recall of the decree was lodged on 2 July 2003, signed by the defender's friend, and the sheriff clerk fixed a hearing thereon for 23 July 2003. On that date the defender was represented in court by the friend and the sheriff having heard parties refused the minute as incompetent. Against that refusal of the minute the present appeal is now taken. The question of law posed at the end of the sheriff's stated case for the opinion of the sheriff principal is "Did I err in law by refusing on the ground of incompetence to grant the recall despite the mandatory terms of rule 24(7)?". The reference ought really to be to rule 24.1(7).

The document lodged on 2 July 2003 bore the date in manuscript 1 July 2003 and was set out partially in print in the manner shown in Form 30 of the Act of Sederunt (Summary Cause Rules) 2002. It was headed "Minute for Recall of Decree" and correctly showed the court (Dumbarton), the reference number of the case, the names and designations of the pursuers and defender and the date of the decree sought to be recalled. Under the printed heading "Reason for failure to appear or be represented" there appeared in manuscript the following legend: "We believed that since we had been trying to get the rent arrears sorted out with Clydebank Housing Association that they would not have wished to proceed with the need for an eviction on 25 June 2003 and that they would have informed their solicitor that we had been in regular contact with them.". [Before me on 9 December 2003 it was denied on the pursuers' behalf that there had in fact been any such contact since 14 May 2003 but that assertion was immaterial to the decision which I had to make in order to determine the appeal.] Under the printed heading "Proposed defence/answer" there appeared in manuscript the following legend: "We were shocked when Miss McEmerson received notification of eviction on Sat 28 June 2003 and believed that a decree was granted by the sheriff being fed misinformation regarding this case.".

Rule 24.1(1) of the 2002 Summary Cause Rules provides (read shortly and so far as relevant to the present case) as follows:- "A party may apply for recall of a decree granted under rule ... 8.2(5) ... by lodging with the sheriff clerk a minute in Form 30, explaining the party's failure to appear and in the case of (a) a defender ... stating where he has not already done so (i) his proposed defence, in the case of a defender ...".

Rule 24.1(5) of the 2002 Summary Cause Rules provides: "On the lodging of a minute for recall of a decree the sheriff clerk must fix a date, time and place for a hearing of the minute.".

Rule 24.1(7) of the 2002 Summary Cause Rules provides: "At a hearing fixed under paragraph (5) the sheriff shall recall the decree so far as not implemented and the hearing shall then proceed in terms of rule 8.3.".

Paragraph (7) of Rule 24.1 is couched in mandatory terms and I accept the assumption to that effect underlying the question of law posed in the stated case. It is however mandatory only if the hearing fixed under paragraph (5) proceeds on a minute lodged which conforms to the requirements of paragraph (1), namely that it should be in Form 30 containing (i) an explanation of the failure to appear and (ii) a statement of the proposed defence. If it does so then the sheriff at the hearing fixed has no choice but to recall the decree and proceed to a hearing under rule 8.3. If however it fails to meet the requirements of paragraph (1) it is open then to the sheriff under paragraph (7) to refuse or (perhaps more appropriately) dismiss it.

In deciding whether the minute lodged conforms to the requirements of paragraph (1) of rule 24.1 those requirements are not to be too strictly construed and some leeway is to be allowed, especially where a party is not legally represented, but substantial conformity is nevertheless required. Form 30 need not be followed to the letter but in all probability even a party litigant will have been given an appropriate form to fill in (as appears to have happened here) by the sheriff clerk's staff. The document must however contain information giving an explanation for the party's non-appearance which at least shows why he or she was absent. It must also contain a statement, even if only a brief one, setting forth the party's position sufficiently to amount to a stateable defence to the action. The proposed defence need not be such as to satisfy the sheriff that it will or is likely to succeed but it must at least be stateable. Both these substantive elements must be present and in the absence of either the minute is disconform to paragraph (1) of rule 24.1 and so liable to be dismissed or refused at the hearing under paragraph (7). Such dismissal or refusal of the minute is not in my view a technicality but flows instead from a lack of essential substance in the document.

In the present case the minute bearing the date 1 July 2003 contained in my opinion the first of the two necessary substantive elements but not the second. There was a statement to the effect that the defender failed to appear on 25 June 2003 because she thought that the pursuers would have instructed their solicitor not to proceed to final decree of ejection so long as there were ongoing negotiations to "sort out" the rent arrears admitted to exist. That statement had to be taken pro veritate for present purposes (despite the pursuers' denial of any such ongoing negotiations) and gave an explanation for the defender's absence. The manuscript sections of the minute, even if read as a whole (ie without confining attention to the "proposed defence" section only), contain however nothing amounting to a stateable defence to the action. Instead they contain an admission of the existence of arrears of unpaid rent which are not to be immediately paid in their entirety so as to purge the irritancy. It is not enough to say that decree was granted because the sheriff was misinformed without going on to say what was omitted to be said or falsely said which, if correctly laid before the sheriff, would have amounted to a defence to the action. It was represented to me that there was implicit in the wording of the minute an assertion that it could not be reasonable to grant decree so long as active negotiations were being pursued and that the defender might be entitled to a proof on the reasonableness of granting decree. Even if however the narratives set forth in the minute can be read as carrying such an implication that would not amount to a defence to the action: the continued pursuit of active negotiations concerning the payment of arrears of rent might be a reason for postponing the grant of a decree but it could not constitute a complete defence to the action.

In my view therefore the minute lodged in the present case on 2 July 2003 did not meet the requirements of Summary Cause Rule 24.1(1) and was not a minute on which the sheriff could or should have proceeded to recall the decree. The sheriff on 23 July 2003 recognised this and reached in my opinion a correct decision to refuse it. He was moreover told at the hearing on 23 July 2003 that there was no defence to the action (as narrated by him on the second page of his stated case). The appeal falls accordingly to be refused and the question of law posed in the stated case to be answered in the negative. It was agreed before me that there should in respect of the appeal be no finding of expenses to or by either party.

I should add that I was referred during the course of argument to three decided cases, namely (i) Forbes v Johnstone 1995 SLT 158, (ii) Dundee City Council v Bailey 1998 HousLR 93 and (iii) City of Edinburgh Council v Forbes 2002 HouseLR 61. These authorities were in two cases concerned with reponing notes under the Ordinary Cause Rules and were not viewed by me as throwing useful light on the issues raised by the present appeal concerning interpretation of the Summary Cause Rules 2002. In the third case the issue, albeit in a summary cause context, was not one involving the recall of a decree but whether the sheriff could in the circumstances grant decree on admitted facts without proof. In any event I did not consider anything said in these cases to which I was referred to be inconsistent with the approach which I have adopted in this appeal as set out above.

BAK