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Stirling Council v. Neil [2005] ScotSC 52 (15 July 2005) JUDGMENT OF SHERIFF W. ROBERTSON

IN THE CASE

STIRLING COUNCIL

V

ANDREW NEIL

SD 9/05

Stirling 15 July 2005

The Sheriff dismisses the minute of recall at the instance of Mrs Janet Neil, wife of the defender, as incompetent; on pursuers' motion reserves the question of expenses and appoints parties to be heard thereon on 2 August 2005 at 11 a.m.

Note

Submissions on behalf of the pursuers

[1] This is an application by the wife of the defender, Mrs Janet Neil, as a "qualifying occupier" within the meaning of section 14 (6) of the Housing (Scotland) Act 2001, to recall a decree in a heritable summary cause action seeking repossession, payment and expenses pronounced against the defender, Andrew Neil, on 29 March 2005. The minuter was represented by Miss Kelly, solicitor. The pursuers were represented by Mr Upton, advocate, who opposed the minute for recall on the ground that it was incompetent.

[2] Counsel's submissions were in seven parts. He firstly described the statutory framework whereby in terms of section 14 (2) of the 2001 Act notices require to be served on the tenant and on any qualifying occupier and must be served before proceedings for recovery of possession of a house which is the subject of a secure tenancy can be raised. It was accepted that the minuter comes within the definition of a "qualifying occupier" as defined within section 14 (6). In terms of section 15, 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. In this case the requisite notices were served on the tenant and the present occupier, including the minuter, on 12 October 2004.

[3] Counsel outlined the procedural diary. The warrant authorising service on the defender was signed by the sheriff clerk depute on 1 February 2005. The service copy summons was served on the defender by sheriff officer on 7 February 2005. The defender lodged a response form with the sheriff clerk on 18 February 2005. On that form the defender intimated that he did not intend to defend the case, that he admitted liability for the claim and made a written application for time to pay. The Return Day was 8 March 2005 and the case called in court on 15 March 2005. The defender was absent when the case called in court and on the pursuers' motion the case was adjourned until 29 March 2005 to monitor payments. On 29 March 2005, the defender again being absent, decree was granted, on pursuers' motion, for recovery of possession and expenses. This decree was extracted on 13 April 2005. Subsequently the minuter lodged what purports to be a minute for recall of decree in terms of rule 24.1 (1). On 21 April 2005 parties were appointed to be heard thereon on 10 May 2005. In appointing a hearing, the court reserved the question of competency.

[4] The Scottish Secure Tenancies (Proceedings for Possession) Regulations 2002 provide the form in which the notice of proceedings for recovery of possession is to be served on the tenant and qualifying occupier. Counsel submitted that the minuter had been served in good time with clear written notice advising that the action might be raised. The notice informs the tenant and qualifying occupier that the landlord may at any time during the period of the following 6 months raise proceedings for possession of the house. It provides the grounds upon which such an application would be made. In particular counsel drew attention to the guidance notes for qualifying occupiers contained within the notice. These make it clear that the qualifying occupier has a right to play a part in any court proceedings. The qualifying occupier is advised that if he or she wishes to make an application to be included in any subsequent court action a solicitor should be consulted. The qualifying occupier is advised that "[y]ou are entitled to have your rights considered alongside the tenant...". Counsel emphasised that the purpose of a qualifying occupier making application was for his or her rights to be considered and not as a mouthpiece for or on behalf of the tenant.

[5] Turning to the second part of his submission, counsel submitted that the recall of decree must be dealt with prior to the motion to sist the minuter as a party. Rule 24.1 (1) provides inter alia:

"A party may apply for recall of a decree granted under rule 7.1 or 8.2 (5), (6) or (7) by lodging with the sheriff clerk a minute in Form 30, explaining the party's failure to appear..."

Rule 14.1 (1) provides:

"Any person who has not been called as a defender may apply by incidental application to the sheriff for leave to enter an action as a defender, and to state a defence."

Counsel submitted that there was a distinction between recall and being sisted as a party. This was apparent from the only two reported cases directly considering this issue, North Lanarkshire Council v Kenmure, Sheriff Principal McInnes, 2 April 2004 [2004 Housing LR 46] and City of Edinburgh Council v Porter, Sheriff RJD Scott, 4 May 2004 [2004 Housing LR 50]. In North Lanarkshire Council Sheriff Principal McInnes, at the end of paragraph 6, states:

"[The minuter] 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."

There were therefore two distinct steps, in counsel's submission, that the minuter must go through and the court cannot consider whether to sist her as a party until the decree is recalled. In City of Edinburgh Council Sheriff Scott was of the same view. He stated, at paragraph 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."

[6] Thirdly, counsel submitted that the decision of Sheriff Principal McInnes in North Lanarkshire Council was correct and he adopted the submissions of the solicitor for the appellant, which Sheriff Principal McInnes accepted and which are recorded at paragraphs 4 and 5:

" 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 (sic) 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 LR 27. 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."

[7] In City of Glasgow Council v Murray 1998 Housing LR 27 the Council was proceeding against the tenant, Elizabeth Murray, for recovery of possession of heritable subjects in Glasgow. James Murray, spouse of the tenant, was sisted as a defender to the action. On the same date decree for ejection was granted against Elizabeth Murray. James Murray lodged the minute to recall the decree against his wife. At paragraphs 7-06 and 7-07, Sheriff Principal Bowen stated:

"In the present case the Sheriff held the minute for recall to be incompetent for two reasons. In the first place he considered that only a defender against whom decree had been granted may apply for recall in terms of rule 19."

The Sheriff Principal then dealt with the second reason which reflected the sheriff's misunderstanding of the law set out in section 1 (1) (a) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 before continuing, at 7-07:

"Notwithstanding his misunderstanding as to the law in my view the sheriff was correct. In the first place I consider that as a matter of pure interpretation of the summary cause rules it is not open to a defender to seek recall of a decree which has been granted against someone else. Read short rule 19 provides: "The defender... following on the grant of decree in terms of rule 18 (6) may apply for the recall of such decree ". Rule 18 (6) provides: "If the defender does not appear or is not represented at the first calling or at any continuation thereof and has not stated a defence... the court may grant decree with expenses against him". It does not appear to me that rule 19 is open to the construction that a defender can seek recall of any decree other than one which is pronounced against him in terms of rule 18 (6)."

Counsel acknowledged that the present rule 24.1 was in different terms insofar as it referred to "party" and not "defender", but he suggested that there had been no intention to alter the existing law. It was evident in construing rule 24 that "party" was used to embrace a pursuer in a counterclaim and a third party against whom decree had been granted. It did not give rise to the inference that the law had been altered. In any event, it was a principle of statutory construction that there was a presumption against an intention to alter statute law where there may be any doubt.

[8] Returning to North Lanarkshire Council and to the submissions which I have earlier recorded at paragraph 5, Mr Upton considered that the submissions for the appellant's agent in relation to the dictionary definition of the word "party" were correct. He referred to the definition contained within The Oxford English Dictionary (second edition) volume XI at paragraph 11 on page 282: "Each of the two or more persons (or bodies of people) that constitute the two sides in some proceeding, as the litigants in an action at law...". He also emphasised that just as William Kenmure had never played any part in the proceedings in North Lanarkshire Council, the minuter in this case had likewise never played any part in these proceedings. The minuter thus had no locus to recall the decree.

[9] Counsel respectfully adopted the reasons given by Sheriff Principal McInnes in allowing the appeal at paragraphs 6 to 9, although he respectfully differed from the Sheriff Principal's comments at paragraph 7 to the extent that counsel considered that a qualifying occupier could enter the process as an additional defender under rule 14 rather than as a third party under rule 11. He considered that rule 14 was more apt to deal with applications of qualifying occupiers under section 15 of the 2001 Act, but he accepted that it was not a matter of great importance.

[10] The Sheriff Principal's comments at the beginning of paragraph 8, to the effect that once proceedings were completed a qualifying occupier was no longer able to exercise the right to apply to be sisted as a party, provided a strong argument for the pursuers in the instant case. He considered that the Sheriff Principal was correct in interpreting that section 15 of the 2001 Act also appears to contemplate proceedings which have been commenced but which have not been completed. Counsel submitted that proceedings are completed at least when decree is granted and certainly when decree is extracted.

[11] Counsel also considered that the Sheriff Principal's comments in the circumstances outlined in paragraph 9 that to allow decree in that case to be recalled by a person who had not been a party to the proceedings would open the door to further and unjustifiable delay resonated with equal force in the present case. The ratio of Sheriff Principal McInnes' judgement was that one must have entered the process to be a party before one can recall the decree and such an application under section 15 of the 2001 Act must be made before proceedings are completed.

[12] Counsel also considered that there might be a hint of another reason behind Sheriff Principal McInnes' decision hidden within paragraph 7 standing the fact that in terms of rule 24.1 (1) (4) (c) (ii) the minute of recall could only be lodged within 14 days of the execution of a charge or arrestment following the grant of decree. He thought, insofar as the Sheriff Principal went out of his way to mention this, that as no charge had been served in this case or any arrestment executed it could be argued that the minute of recall was premature. In fairness to counsel, when I suggested that this was certainly contrary to practice under the previous rules, he accepted, as I understood the position, that this admission may not be well founded. Although the present rule now uses the word "within" when the previous rules had used the phrase "at any time before", he acknowledged that his submission may result in unfairness. Furthermore, the principle of statutory interpretation raising the presumption against alteration could be argued against him. To that extent I understood him not to insist on this particular submission.

[13] Fourthly, counsel submitted that "party" in rule 24 must be construed as being a person who has already entered appearance. This is what Sheriff Principal McInnes decided in North Lanarkshire Council and counsel submitted that this decision was correct. It was consistent with a reading of the rule. Therefore a person who was not a party to the proceedings cannot apply for recall of decree. He submitted that elsewhere in the rules someone who has not entered appearance is referred to as "person" and thereafter, once entered, as a "party". Unless in the case of irrelevant specialities such as the right of the Lord Advocate to enter any process, for instance, in a motion for specification documents, counsel submitted that one can become a "party" in one of four ways: (1) once the summons is authenticated in terms of rule 1.1 and 1.4, one can be a pursuer; (2) once a defender who is named on the summons is served in terms of rule 4.3, that person becomes a defender; (3) in the event that a third party notice is served under rule 11, that person would then become a third party; and (4) in terms of rule 14.1 a person who is not already a party may apply for leave to become an additional defender. If a person had not been convened by any of those four methods, they were not a "party" to the proceedings.

[14] Use of the word "person" within rule 14.1 referred to someone not already having entered appearance. Rule 11.1 (1) (a) similarly referred to "person", and not to "party". Counsel suggested that this distinctive usage was consistently apparent throughout the rules. He found examples within rules 15.1 (1), 18.3 (2) (b), 5.1 (2), (3) (a), 5.3 (3) (b), 5.4 (1) (b) (i), 5.5, 5.6 and 5.7. He also referred to rule 30.2, which deals with heritable actions, and reference to "person" was to someone not yet a defender. In contradistinction to those references, the rules used reference to "party" after such persons had already entered appearance in the action. He referred to rules 6.3 (1), (4) (b) and 8.7 (1) (c). Rule 8.16 uses the phrase "party or any other person", which was clearly a reference to a third party haver.

[15] Counsel submitted that in Scotland there is only one single code of civil procedure with different types of procedure within it. Accordingly it was necessary that a consistent approach should be adopted. He referred to the Rules of the Court of Session 1994 and to the definition of "party" within rule 1.3 (1) as meaning "a person who has entered appearance in an action or lodged a writ in the process of a cause "other than a minuter seeking leave to be sisted to a cause ...". Counsel submitted that this is what the drafter of the Summary Cause Rules had in mind. It should not include a minuter. Both sets of rules are made by the Lords of Council and Session and as they have come from the same legislative source the language should be consistently interpreted. Accordingly, "party" should be interpreted as having the same definition in both rules. Reference was made to Hamilton v Hamilton's Executor 1950 SC 39 per Lord Justice-Clerk Thomson at page 42 where it was held that in the context of that case "party" meant someone who had entered the action. The same approach had been taken in England. See R A Lister & Co Ltd and others v E G. Thomson (Shipping) Ltd and another (No. 2) [1987] 1 WLR 1614, per Hobhouse J at page 1618. In summary, Mr Upton submitted that rule 24.1 contemplates a minute being lodged only by a pursuer, defender or a third party who has entered appearance.

[16] In the fifth part of his submissions, counsel attempted to distinguish Pearson & Jackson v Alison (1871) 9 M 473 and other cases upon which he anticipated the solicitor for the minuter would seek to rely. He began with the decision of Sheriff Scott in City of Edinburgh Council v Porter. Sheriff Scott decided this case one month after Sheriff Principal McInnes issued his judgement in North Lanarkshire Council v Kenmure and was aware of that decision. Counsel submitted that the procedure in City of Edinburgh Council v Porter was slightly distinct. No formal response had been lodged by the defender, which was in contradistinction to the instant case. Counsel did not seek to adopt the approach taken by the pursuers noted by Sheriff Scott in paragraph 29 of his judgement. Distinguishing a decree in absence from a decree in foro was not a distinction that is predicated on rule 24.1 and counsel suggested that it was confusing to distinguish decrees on that basis. Similarly, he balked at the comparison in paragraph 31 with a reponing note in ordinary procedure, which at best was merely an analogy.

[17] However, counsel adopted what Sheriff Scott states within paragraph 32, which, for convenience, is in the following terms:

"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 rules relating to ordinary causes but on the terms of rule 24.1 of the Summary Cause Rules."

[18] Counsel submitted that, thereafter, Sheriff Scott had fallen into error at the beginning of paragraph 33 where he states:

"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."

These comments stand in contradistinction to what the Sheriff had just stated in paragraph 32 and counsel submitted that his reasoning within the remainder of that paragraph is therefore unpersuasive. Counsel submitted that "party" cannot include a person before the person has entered the process. He was also critical of what he described as the taint of a wrong approach by use of the expression "decree in absence". That was, he submitted, an inappropriate term to use and not one that is used in the Summary Cause Rules.

[19] Counsel also considered that the approach of the sheriff in the last sentence of paragraph 33 was misconceived. There, the sheriff stated:

"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."

[20] Developing his criticism, counsel submitted that it is an absolute question whether a decree is granted under rule 7.1 and it is quite wrong to contrive a different definition of a decree depending on the standpoint of the persona from which it is considered. The character of a decree is an objective state of fact and, in that case, it is dependent upon whether the defender has returned a response form. The rules do not provide for a response form to be lodged other than by the defender. The style of the form contained within FORM 1 a, which is the service copy summons, is the form referred to in rule 7.1. Sheriff Scott was in error when he considered the definition under rule 7.1 relative to which party or persona he was considering. In that case no response form had been lodged and therefore the decree must have been one granted under rule 7.1. In the instant case, as had been pointed out, a response form had been lodged and therefore it was not a decree under rule 7.1. Accordingly, the instant case could be factually distinguished from City of Edinburgh Council v Porter. However, Sheriff Scott was seeking to categorise the decree in that case as a decree in absence quoad the minuter, which flies in the face of what he says at paragraph 32. Sheriff Scott's decision should therefore not be followed. The decision of Sheriff Principal McInnes in North Lanarkshire Council v Kenmure should be followed.

[21] Pearson & Jackson v Alison involved a sheriff court action in which the defender had died after decree had passed against him. His wife, as executrix of her husband, sought and was allowed to be reponed in his place. Counsel distinguished this case on the basis that it concerned interpretation of different legislation. Secondly, it dealt with an ordinary cause, which Sheriff Scott in his judgement had considered to be different. Even if reponing could be equiperated with recall in a summary cause under rule 24.1, there were in Pearson & Jackson very cogent reasons to allow the executrix to be reponed because of the representative capacity. That is entirely absent in the instant case. The minuter is not seeking to recall the decree or enter the process as the representative of her husband, the defender. She seeks to do so on her own behalf. Counsel argued that Pearson & Jackson formed a large part of the reasoning of Sheriff Scott in his decision in City of Edinburgh Council v Porter and insofar as Pearson & Jackson could be distinguished and undermined, it was further reason not to follow Sheriff Scott's decision.

[22] Counsel then turned to Barrie v Hosie 1933 SLT (Sh Ct) 39. This was an action in which a trustee for creditors presented a reponing note and sought to be sisted as an additional defender. The sheriff-substitute refused a trustee's motion but, on appeal, Sheriff Hunter allowed the appeal, and the trustee was sisted as an additional defender. Counsel submitted that this case can again be distinguished on the basis that the trustee was acting in a representative capacity. The defender, in granting the trust deed, had given the trustee the right to defend any actions. Counsel also suggested that Sheriff Hunter was in error insofar as he suggested that the Lord Justice-Clerk and Lord Neaves in Pearson & Jackson did not rely upon representative capacity as a reason to repone the executrix in place of the defender. It was clear from their brief judgements that they had. However, that was really of no moment because, again, it was understandable that the trustee should be allowed to repone because of the right and power given to him to represent the defender in any actions.

[23] In British Anchor Pottery Co Ltd v J & W Cowan & Co 1950 Sheriff Court Reports 279 decree in absence was obtained against a firm in the firm's name. A charge for payment was then served upon an individual as a partner of the firm. That partner thereupon lodged a reponing note in which he averred that the firm had ceased to carry on business and had been dissolved prior to the granting of decree, that he was a former partner of the firm and that he had received no intimation of the action. He tendered a substantial defence to the action. The reponing note was allowed and he was sisted as the defender. Again this was a case involving a reponing note under the Ordinary Cause Rules and not rule 24.1 of the Summary Cause Rules. However, this decision can again be explained on the basis that the party seeking to be reponed was again acting in a representative capacity representing the same interest as that of the defender. Section 38 of the Partnership Act 1890 specifically authorised a former partner to represent the partnership notwithstanding dissolution. Again, unlike the instant case, the party seeking to be reponed was not seeking to represent his own interests.

[24] Counsel then referred to A & E Russell Ltd v General Maintenance International 1993 SLT (Sh Ct) 83. This was a case involving rule 19 of the Act of Sederunt (Summary Cause Rules, Sheriff Court) 1976, which provided, so far as relevant, that "... the defender, at any time no later than 14 days after the execution of the charge... following on the grant of decree in terms of rule 18 (6), may apply for the recall of such decree". A summary cause decree was granted against the partnership. A charge was served on the partnership and thereafter on the firm's two partners. The sheriff refused the partners' application under rule 19 for recall of the decree as out of time. The partners appealed to the Sheriff Principal who held that it was against the partnership that decree had been taken and that it was upon the defender that the right to apply for recall of a decree in a summary cause was conferred. As the partners were not the defenders they could not competently apply for recall of decree. The Sheriff Principal also considered that the dispensing power could not be used to allow the minute of recall since to do so would have been to give effect to an incompetent procedure. Counsel suggested that this case might be distinguished from British Anchor Pottery Co Ltd v J & W Cowan & Co insofar as in the latter case the partnership was dissolved but that was not the case in A & E Russell Ltd. Counsel commended Sheriff Principal Macleod's approach in preference to that taken in British Anchor Pottery Co Ltd. In passing, I should observe that counsel again began to note that in A & E Russell Ltd the recall had been lodged after service of a charge but for the reasons to which I have earlier alluded he did not press the significance of this point.

[25] Sixthly, counsel submitted that neither a third party nor anyone else can be sisted after a decree is extracted. In such circumstances recall is academic and, therefore, incompetent. He emphasised that the decree must be recalled first and that this cannot happen after the proceedings are completed or after decree is extracted. He referred to Dobie, Sheriff Court Practice page 253:

"Extracting a final judgement is the official closing of the process. After extract, no further step can be taken, and reference to oath is not competent. Neither can the decree be corrected or altered, for the process is no longer depending".

Counsel accepted that this now has to suffer the qualification that the rules might statutorily provide for further procedure, for example, for recall in terms of rule 24.1. City of Edinburgh Council v Swan 2001 SLT (Sh Ct) 161 was authority for the proposition that the effect of an extracted decree is the same in ordinary causes as it is in summary causes. In Mackay, Court of Session Practice it is stated at page 263, paragraph 10:

"A party who has the right to be sisted can be sisted at any time before the action is finally determined by extract. Even where there is final decree dismissing the action, but not extracted, he can appear".

In McLaren, Court of Session Practice at page 478 it is stated:

"III. At what stage a new party may be sisted - It is competent for a person to be sisted as a party to a cause after decree has become final quoad the original party if decree is not extracted...".

In Maxwell, Court of Session Practice at page 231 it is similarly stated:

"The general rule is that, where a person who has not been called as a defender has a clear interest to defend, the Court will on his own motion sist him as a defender, and this may be done at any time before extract of final decree".

Counsel also made reference to The Marquis of Douglas and Clydesdale and others v The Earl of Dalhousie, Faculty Collection, 15 November 1811 where the Inner House confirmed that as long as an interlocutor is unextracted it was competent for a person to sist himself as a party.

[26] Reference was also made to Macphail, Sheriff Court Practice (Second Edition) at paragraph 1.43 as authority for the proposition that in Scotland there does not exist different codes for different procedures. There, under the authority of M' Kidd v Manson (1882) 9 R 790, it is stated:

"Rules of principle apply equally to the Court of Session and to the sheriff court. It is therefore submitted that where any lacuna appears in the rules of procedure laid down for the sheriff court by statute, by Act of Sederunt or by the sheriff principal and where sheriff court practice offers no precedent, a sheriff may properly resort for guidance to the general principles of Scottish civil procedure which may be discerned in the practice of the Court of Session. It has been said that there is truly one system of civil procedure in the Scottish courts, and that it is erroneous to conceive of the Court of Session and the sheriff courts as administering entirely separate codes of procedure".

[27] The seventh and final part of counsel's submissions was based on the terms of rule 24.1 and would, he argued, provide a complete answer to the question of competency independently of the submissions he had already made. Rule 24.1, in terms, only applies to a decree granted under rule 7.1 or 8.2 (5), (6) or (7). Counsel argued that the decree granted in this case was not one granted under those rules.

[28] Rule 7.1, so far as relevant for present purposes, is in the following terms:

"7.1 - (1) Subject to paragraphs (4), (5) and (6), where the defender has not lodged a form of response on or before the return day -

(a) the action shall not require to call in court on the calling date; and

(b) the pursuer must lodge a minute in Form 17 before the sheriff clerk's office closes for business on the second day before the calling date.

...

(4) Where no form of response has been lodged in an action -

(a) for recovery of possession of heritable property;... the action shall call in court on the calling date and the sheriff shall determine the action as he thinks fit."

For counsel's submission it was necessary to observe the terms of rule 7.2, which, so far as relevant for present purposes, is in the following terms:

"7.2 - (1) If the defender admits the claim, he may, where competent -

(a) make an application for a time to pay direction... or a time order by competing the appropriate part of the form of response contained in the defender's copy summons and lodging it with the sheriff clerk on or before the return day; or

(b) lodge a form of response indicating that he admits the claim and intends to apply orally for a time to pay direction... or time order."

(2) Where the defender has lodged an application in terms of paragraph (1) (a), the pursuer may intimate that he does not object to the application by lodging a minute... stating that he does not object to the defender's application and seeking decree.

(3) If the pursuer intimates in accordance with paragraph (2) that he does not object to the application -

(a) the sheriff may grant decree on the calling date;

...

(5) Where the pursuer objects to an application in terms of paragraph (1) (a) or the defender has lodged a form of response in accordance with paragraph (1) (b), the action shall call on the calling date when the parties may appear and the sheriff must decide the application and grant decree accordingly.

(6) The sheriff shall decide an application in accordance with paragraph (5) whether or not any of the parties appear.

... "

[29] Before considering the terms of rule 8.2 it is necessary to note also 8.1. These rules are contained within Chapter 8 dealing with a defended action and, so far as relevant for present purposes, are in the following terms:

"8.1. - (1) If the defender intends -

(a) to challenge the jurisdiction of the Court or the competency of the action;

(b) to defend the action (whether as regards the amount claimed or otherwise); or

he must complete and lodge with the sheriff clerk on or before the return day the form of response contained in the defender's copy summons including a statement of his response which gives fair notice to the pursuer.

...

8.2. - (1) Where the defender has lodged a form of response in accordance with rule 8.1 (1) the action will call in court for a hearing.

...

(4) The defender must either be present or be represented at the hearing.

(5) Where the defender -

(a) does not appear or is not represented; and

(b) the pursuer is present or is represented,

decree may be granted against the defender in terms of the summons.

(6) Where at the hearing -

(a) the pursuer does not appear or is not represented; and

(b) the defender is present or represented, the sheriff shall dismiss the action and may grant decree in terms of any counterclaim.

(7) If all parties fail to appear at the hearing, the sheriff shall, unless sufficient reason appears to the contrary, dismiss the action and any counterclaim."

[30] As already noted, the defender lodged a form of response on 18 February 2005. In doing so he had, following the instructions under "SECTION B", deleted the boxes which did not apply. He deleted Boxes 2 and 3. Box 2 provides for the defender to admit liability for the claim and attend at court to make an application to pay by instalments or deferred lump sum. Box 3 provides, inter alia, for the defender to dispute the claim or the amount due and attend at court and further provides the defender the opportunity to state whether he challenges the jurisdiction of the court or the competency of the action or that he intends to defend the action or only to dispute the amount due. It also provides for the defender to state his defence or any counterclaim.

[31] The defender had left Box 1 operative. That provides for the defender to admit liability for the claim and make a written application to pay by instalments or by deferred lump sum. In terms, the defender stated thereby that he did not intend to defend the case but admitted liability for the claim; that he wished to make a written application about payment; and he completed the application for time to pay at page 7 giving details of his offer, income and expenditure.

[32] Counsel argued that the decree could not have been granted under any of the subparagraphs (5), (6) or (7) of rule 8.2 because these subparagraphs only apply where the defender has lodged a form of response in terms of rule 8.1 (1) stating that he intends to either challenge the jurisdiction of the court or the competency of the action or to defend the action or state a counterclaim. The defender in his form of response had explicitly stated that he did not intend to defend the action and that he admitted liability for the claim. Accordingly, this was not a decree that could be recalled on the basis that it was granted under rule 8.2 (5), (6) or (7).

[33] The remaining question was whether the decree was granted in terms of rule 7.1. That rule is set in Chapter 7, which deals with undefended actions. Specifically, rule 7.1, as already noted, applies where the defender has not lodged a form of response. Accordingly, as the defender has lodged a form of response in which he admits the claim, states that he does not intend to defend the action and applies for time to pay, the decree granted in this case cannot be granted under 7.1. It was evident that in so far as the defender admitted the claim and made a written application for time to pay the court was proceeding in terms of rule 7.2 (1) (a) and that decree was granted either under subparagraph (3) or (5). In any event it was not granted under rule 7.1. In these circumstances this was not a decree that can be recalled in terms of rule 24.1. The minute is therefore incompetent on that ground and should be dismissed.

Submissions on behalf of the minuter.

[34] For the minuter, Miss Kelly began her submissions by explaining that the defender and the minuter were married but had been separated for some time. At the date the action was raised the defender was not living at the house. The minuter was living at the house with two sons and a four-year-old grandson. It was said that it was the minuter, and not the defender, who had completed the application for a time to pay order and returned it to the court. On 29 March 2005, when decree had been granted, neither the defender nor the minuter was present. The minuter seeks to recall the decree as a qualifying occupier in terms of sections 14 and 15 of the 2001 Act. The minuter was a qualifying occupier within the definition contained in section 14 (6). In terms of section 15, 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". She understood there to be no dispute that, as the defender's wife, she was a qualifying occupier within the definition of the Act.

[35] Miss Kelly firstly sought to argue that the provisions within rule 24 of the Summary Cause Rules anent recall of decree were analogous to the reponing procedures under the Ordinary Cause Rules wherein rule 8.1 (1) provided:

"In any cause... the defender may apply to be reponed by lodging with the sheriff clerk, before implement in full of a decree in absence, a reponing note setting out his proposed defence and explaining his failure to appear".

Although that rule only referred to "defender" she suggested that the authorities demonstrate that a party who is entitled to be sisted to an action can repone a decree in absence. By analogy, this should apply to the recall provisions under the Summary Cause Rules. The procedures are similar insofar as there is a requirement for a form to be lodged with the court providing a proposed defence and an explanation for failing to appear. A hearing is assigned. The only difference, she suggested, was that the sheriff had a discretion to exercise under the Ordinary Cause Rules but had no discretion under the Summary Cause Rules. Reference was made to Macphail, where, under the authority of Pearson & Jackson v Allison, it states at paragraph 7.24:

"Although the rules refer only to an application by the defender, a party other than the defender, who is entitled to be sisted as a party to the action, may apply to be reponed."

She sought to draw a general principle from the dicta of Lord Justice-Clerk and Lord Neaves that if a party can be sisted, that party can also be reponed. Reponing is a beneficial enactment to be largely interpreted. This approach had been followed in Barrie v Hosie and British Anchor Pottery Co Ltd v J & W Cowan & Co.

[36] The solicitor for the minuter argued that this approach can be adopted with summary causes. In City of Edinburgh Council v Porter Sheriff Scott had been addressed on the earlier reponing note authorities and held that their application could be applied in consideration of a minute of recall under rule 24.1. He stated at paragraphs 24-26:

"[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 the 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."

Miss Kelly submitted that Sheriff Scott was correct and urged me to adopt the same approach in the instant case. She dismissed the decisions in North Lanarkshire Council v Kenmure, City of Glasgow Council v Murray and A & E Russell Ltd v General Maintenance International because, in each case, the Sheriff Principal had not been addressed on the reponing note authorities and sought to distinguish them on the ground that had he been so addressed then in each case the decision would have been different.

[37] So far as the pursuers' argument was concerned that only a party acting in a representative capacity was allowed to be reponed in place of a defender, Miss Kelly submitted that it just so happens that these are the cases which came before the court. She disputed that that was indicative of any limit in principle. She argued that the courts have adopted an expansive approach when considering reponing notes. She sought support from the terms of section 15 of the 2001 Act, which provided that a qualifying occupier should be allowed to be sisted as a party whether in a representative capacity or not. She submitted that the authorities do not turn upon the question of discretion but rather upon who is entitled to the remedy.

[38] So far as the seventh point for the pursuers was concerned, Miss Kelly argued that the decree of ejection was not granted under rule 7.2. She conceded that perhaps the payment element of the decree was granted under that rule. However, she argued that the decree is separable into constituent parts: Ali v Ali 1999 SLT 943. Therefore, if the decree for payment had been granted under rule 7.2 then that part was not able to be recalled. She also then referred to Highland Council v Roberts 2004 Housing LR 12. This was a decision of Sheriff Mackie in which he was satisfied, following Ali v Ali, that the decree for ejection was separable from the decree for payment but in light of the decision of the Sheriff Principal that was binding upon him in that sheriffdom he refused a minute for recall. A discussion was entered into in relation to the report of this case which, from the heading, seems to suggest that it was a decision of Sheriff Principal Sir S S T Young Bt, QC. However, while it is reported on the basis of a stated case, there is no report of any decision having been made by the Sheriff Principal. This matter was of little moment insofar as counsel for the pursuers did not dispute in principle that the constituent parts of the decree were severable.

[39] Miss Kelly submitted that decree of ejection must have been granted under rule 7.1. She maintained that it was still an undefended action despite Box 1 having been completed and returned in the form of response admitting the claim. It must be treated as a case in which no form of response had been lodged and the action was therefore an undefended one and decree must have been granted in terms of rule 7.1 (4). There was no other rule under which the decree could competently have been granted. Rule 7.2 only relates to actions for payment. It cannot therefore be a decree granted under that rule. If, on the other hand, it was accepted that the form of response had been lodged, decree must have been granted under rule 8.2. Admission of the claim does not constitute a defence to an action. Decree must have been granted therefore, she argued, in terms of rule 7.1 (4) at least so far as eviction was concerned. The minuter only seeks to recall that part of the decree relating to eviction.

[40] Miss Kelly finally observed, in relation to the concern that had been expressed that qualifying occupiers, if allowed to recall decrees in which they had not been sisted as a party, could use this remedy with the result that excessive delay may be encountered in actions for recovery of possession, that this was the first case since Porter in which this matter had been raised. She was unaware of any other cases in Scotland where this had arisen. Accordingly, the mischief that was feared might occur in such cases had not materialised.

Response on behalf of the pursuers

[41] In a brief response, counsel explained that this hearing had proceeded with appropriate citation of authority as it had been identified as an opportunity to clarify the conflicting decisions in Porter and North Lanarkshire Council. He suggested that there were three issues, namely: (1) whether the correct principles for considering reponing notes in ordinary actions been identified; (2) whether they can be applied by extension to consideration of minutes of recall in summary causes; and (3) whether this was a decree granted under rule 7.1.

[42] Dealing briefly with the first issue, he reiterated that the representative capacity of those seeking to be reponed was clearly emphasised in Pearson & Jackson. Lord Justice-Clerk Moncrieff, at page 474, referred to the applicant being called into court "as her husband's representative". Lord Neaves, at the same page, stated: "There ought to be ways and means, in every Court, by which one who represents a deceased litigant may be reponed and heard before the case is finally decided". In Macphail, following the passage quoted on behalf of the minuter at paragraph 7.24, there follows a summary of parties that have been allowed to be reponed: "Thus, a defender's executrix, a trustee for a defender's creditors, and a former partner of the defenders' firm have been reponed". This shows the limit to which it has been taken. In this case the minuter seeks to come in to the action on her own behalf.

[43] Turning to the second issue, even if it were accepted, which counsel did not concede, that there was a broader principle that allowed parties other than those in a representative capacity to be reponed, the argument for the minuter is no logical basis for extension to summary causes. Under the Summary Cause Rules there is no discretion open to the court to grant a minute of recall. Provided it is competent, it must be granted. However, in ordinary actions the court is given a discretion. This is an important distinction. In these circumstances, where the Summary Cause Rules do not provide for the exercise of discretion, it would be no surprise if the Court of Session should prescribe more restrictive rules. That one is the analogue of the other does not entail that the same common law rules apply. It is intended to be different. Furthermore, counsel argued that the extension of "defender" in rule 8.1 (1) of the ordinary cause rules did not require as great a leap as it would under the Summary Cause Rules.

[44] There had been three decisions of Sheriffs Principal. The decision of Sheriff Principal McInnes in North Lanarkshire Council v Kenmure was under the current Summary Cause Rules. The decision of Sheriff Principal Bowen in City of Glasgow Council v Murray and that of Sheriff Principal Macleod in A & E Russell Ltd v General Maintenance International were under the old Summary Cause Rules. All three decisions run contrary to the minuter's argument. To each, Miss Kelly submitted that had the decisions on reponing notes in ordinary causes been cited then the decisions of the Sheriffs Principal would have been different. However, counsel argued that in these cases it was not thought necessary to cite the Ordinary Cause Rules and cases on reponing. That casts doubt on whether such rules and authorities are applicable. The only case suggesting such a leap is that of Sheriff Scott in City of Edinburgh Council v Porter. That leap, made in paragraph 33, was not justified in view of what the sheriff had just said at paragraph 32.

[45] Turning to the third issue, counsel did not dispute that the ejection and payment parts of the decree are separable. However there was no suggestion from the form of response that it was a response to only part of the claim. He doubted whether it was competent, in any event, to lodge a form of response to only part of the action. However, this was a form of response lodged to the action in its entirety. This present action was one where a form of response had been lodged. It is unnecessary to identify where else under the rules decree could have been granted. It is sufficient that it was not granted under rule 7.1 or 8.2 (5), (6) or (7). The rules do not necessarily provide a complete set of pigeonholes. Some procedures are under the rules, others are under common law. In any event the pursuers had only sought and obtained a decree for eviction and expenses. Decree for payment was not sought. Rule 7.2 gives detailed provisions for cases in which a time to pay direction or order is sought. Rule 7.2 (7) provides the procedure in the event that the pursuer fails to proceed in accordance with either of paragraphs (2) or (4) and allows the sheriff discretion to dismiss the claim. Equally, the sheriff has power to grant decree.

Decision

[46] It was agreed, rightly, that the recall of decree must be dealt with before sisting the minuter as a party to the action. Only if the decree is recalled would the court then go on to consider the minuter's application to be sisted.

[47] I shall deal firstly with counsel's seventh submission because if the decree granted in this case is not a decree to which the provisions of rule 24.1 apply then the minute for recall is not competent and that would be an end to the matter.

[48] It is appropriate to observe at this point that although this was an action for both eviction and payment, only decree for eviction was granted. Decree for payment was not sought and that crave was dismissed. Accordingly, insofar as the minuter attempts to recall a decree, it can only relate to the eviction decree.

[49] It is also pertinent to observe that a heritable action for eviction is commonly combined with an action for payment. It was agreed before me that in such cases the constituent parts of a decree for both eviction and payment are separable. The Summary Cause Rules do not easily embrace combined actions. While there are rules dealing with applications for time to pay in payment actions, which provide either for a time to pay application to be accepted by the pursuer and granted without the case calling in court or, if the pursuer objects to it, for the application to call in court and for decree to be granted accordingly, these rules are compartmentalised. Heritable actions cannot proceed to decree in the same way as payment actions and irrespective of whether a time to pay application is lodged in the case where both eviction and payment is sought, the case must call in court. Accordingly, a pursuer in such a combined action commonly does not formally object to the time to pay application presumably because the case must in any event call in court and the application is decided at the calling if that is the only point in issue.

[50] I do not accept counsel's argument that it is not competent to lodge a form of response to only part of an action. Insofar as it is accepted that a decree for both eviction and payment can be separable into its constituent parts, I think it is equally competent for a defender to seek time to pay in relation to the payment claim while not seeking to defend the heritable claim. There may be good reason for a defender taking such a position in a particular case. The defender may already have vacated the tenancy, as here, and have no interest therefore in defending the heritable eviction claim but he may wish to be allowed to pay the arrears of rent by instalments. It seems to me that whether the form of response is to be treated as directed at the whole action or at only part of it is a matter of interpretation in each case, not a question of competency.

[51] The form of response provided to parties as prescribed in the rules does not fit easily into a combined action. Box 1, which has been left operable in this case, countenances the situation where the defender admits liability for the claim but wishes to make a written application about payment. It is clear, in my view, from the fact that he has not provided any proposed defence and has merely given his financial details seeking payment by instalments of £160 per fortnight that this is a response only in relation to the payment aspect of the action. It does not become a response to the heritable eviction crave merely because the defender leaves operable that part of Box 1 that states he does not intend to defend the case but admits liability.

[52] Accordingly, this form of response can only be construed as a response to the claim for payment. So far as the eviction crave is concerned, no statement has been provided to give the pursuers fair notice of his defence. It must therefore be concluded that the defender does not, by this form, intend to defend or oppose eviction. In terms of rule 7.1 (4) a heritable action must still call in court. That is what occurred in this case and subsequently decree was granted for eviction. Thus, the only sensible conclusion I can reach is that when granting decree, the court granted decree in terms of rule 7.1. In these circumstances the submission on behalf of the pursuers falls to be rejected as this is not a decree granted under rule 7.2. No payment decree was sought by the pursuers or granted. Therefore, there can be no question of decree having been granted under rule 7.2. However, even if such a payment decree had been granted I consider that it would have been granted separately under rule 7.2, and therefore not capable of recall. That would not prevent the eviction decree, even if granted at the same time, being granted under rule 7.1. It would be quite competent in my view to separate the basis upon which the eviction and payment decrees are granted whether at the same or different times.

[53] The only two decisions to which I was referred that bear directly upon the Summary Cause Rules 2002 and the issue in this case are that of Sheriff Principal McInnes in North Lanarkshire Council v Kenmure and Sheriff Scott in City of Edinburgh Council v Porter. These decisions, as has been noted, are conflicting. The decision of Sheriff Mackie in Highland Council v Roberts, while a decision under the 2002 Rules, does not raise the same issue because that case involved an application for recall of decree by the defender.

[54] The decision of Sheriff Principal McInnes in North Lanarkshire Council is based directly on a construction of the Summary Cause Rules and in particular rule 24.1. The decision of Sheriff Scott in Porter relies upon an interpretation of the authorities on reponing notes lodged under the Ordinary Cause Rules. It is perhaps unfortunate that the decision in North Lanarkshire Council was only brought to the attention of Sheriff Scott minutes before he was to give his own decision, which would only have allowed him limited consideration thereof. Sheriff Scott considers that Sheriff Principal Macleod would have adopted a different interpretation of the word "defender" in A & E Russell Ltd if the earlier cases under reponing notes had been cited to him and Sheriff Scott dismisses the decision of Sheriff Principal McInnes for the same reason.

[55] I agree with the submission of counsel for the pursuers that there is a contradiction of logic insofar as Sheriff Scott, at paragraph 32, emphasises that the competency of the minutes for recall 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 while thereafter, at paragraph 33 goes on to interpret rule 24.1 in the same beneficial manner that the court has considered reponing notes in ordinary actions. It seems to me that the analogy between minutes of recall and reponing notes is misconceived. Reponing notes involve the exercise of discretion whereas minutes of recall, if competent, must be granted. It does not appear to me that it is necessarily useful to consider decisions under reponing notes when the court is able to exercise a discretion and when decisions are based on the decision to exercise such discretion. Thus, for example, Sheriff-Substitute Hay in British Anchor Pottery Co Ltd says in terms: "I therefore exercise my discretion, and repel the pursuers' objection to the competency of the reponing note". That the analogy is misconceived is reinforced in my view by the fact that in none of the three decisions of Sheriffs Principal in North Lanarkshire Council, A & E Russell Ltd and City of Glasgow Council v Murray was it considered relevant to cite authorities on reponing notes.

[56] Even if such authorities on reponing notes, contrary to what I have just stated, were to be relevant in construing the provisions dealing with minutes of recall in summary causes, I am not persuaded that the minuter in this case can be equiperated with those who have been allowed to be reponed in the authorities that were cited to me. In Pearson & Jackson v Alison the defender's wife was allowed to be reponed as his executrix. In Barrie v Hosie the trustee appointed by the defender under a trust deed granted by him, in which he was given the right to defend any actions on behalf of the defender, was allowed to be reponed in the defender's place. In British Anchor Pottery Co Ltd a former partner was allowed to be reponed as representative of a dissolved partnership, which representation was specifically authorised by section 38 of the Partnership Act 1890.

[57] In the present case the minuter makes application for recall on her own behalf and not on behalf of the defender. I agree with counsel that the Lord Justice-Clerk and Lord Neaves in Pearson & Jackson clearly proceeded upon representative capacity as the reason to repone the executrix of the defender, not upon whether she was entitled to be sisted as a defender in the action. Accordingly, in Barrie v Hosie, Sheriff Hunter, insofar as he considered that their Lordships had set down a test based on whether the party seeking to be reponed would have been entitled to be sisted as a defender, is in error. It seems to me on the basis of those authorities that, in cases dealing with reponing notes, the court must construe "defender" in rule 8.1 (1) of the Ordinary Cause Rules as including parties that are in some representative capacity of the defender. It is a huge leap, in my considered view, to construe those authorities as being capable of a wider principle that would extend to parties such as the minuter as a qualifying occupier where that minuter was representing his own interests distinct from that of the defender. It is insufficient to justify the wider application to suggest that no such cases have come before the court. The fact of the matter is the solicitor for the minuter was quite unable to cite any authority in which a third party was allowed to be reponed in an ordinary action on his own behalf in the same capacity that the minuter seeks to do so in this application.

[58] While the solicitor for the minuter did not argue to the contrary, I agree with counsel for the pursuers that nothing turns upon the different phraseology in the Summary Cause Rules 2002 wherein rule 24.1 refers to "party" when its predecessor, rule 19 of the Summary Cause Rules 1976, referred to "defender". In my view the difference in language does not signal any inference that the law had been altered for the reasons that counsel suggests; in any event there would be a presumption against alteration.

[59] In my view rule 24.1 applies only to pursuers, defenders and third parties who have come into the action. Sheriff Principal McInnes in North Lanarkshire Council states at paragraphs 7 and 8:

"7... 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, for example 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..."

I respectfully find myself in complete agreement with Sheriff Principal McInnes for precisely the reasons stated by him.

[60] In this case the minuter had received appropriate notice as a qualifying occupier prior to the action being raised. She was well aware that the action had been raised because, I am told, it was she who completed and returned the form of response. She had, therefore, every opportunity to apply to be sisted as a party to the proceedings under section 15 of the 2001 Act, but did not do so. Decree of eviction was pronounced against the defender and that decree was subsequently extracted before this minute of recall was lodged by the minuter. There can be no doubting in these circumstances that the proceedings were at an end, certainly after the extract decree was issued. As the minuter had not become a party to the proceedings by then it is not competent for her to recall the decree against the defender now.

[61] It is entirely logical that rule 24.1 should be construed on its own terms and more restrictively than the terms of rule 8.1 of the Ordinary Cause Rules. Rule 24.1 affords the court no discretion in the event that a competent minute for recall of decree is presented whereas the court has discretion whether to allow an ordinary decree to be reponed against. I respectfully disagree with Sheriff Scott's assertion that in drafting the Summary Cause Rules the Court of Session must be taken to have been aware of the authorities on reponing when these are based on a different rule. While I agree with him that the effect of reponing in ordinary causes and recall in summary causes is much the same, the route by which that effect is achieved is completely and significantly different.

[62] I am told that the undesirable consequences that Sheriff Scott feared might result from his decision have not in fact materialised. That may be so. Nevertheless, it might equally be observed that it would be contrary to the thrust and tenor of rule 24.1, which allows a party to seek to recall a decree on one occasion only, that there might be countenanced a string of minutes for recall by successive qualifying occupiers, which the court would have no discretion to refuse, leading to considerable delays in landlords seeking repossession in many cases where they were justly entitled to do so. It would also run contrary to the expeditious and summary nature of such proceedings that the Summary Cause Rules are designed to achieve.

[63] For these reasons I hold that it is incompetent for the defender's wife to recall the decree granted against the defender even though she is a qualifying occupier within the meaning of the 2001 Act and would have been entitled to be sisted as a party to the action if she had lodged such an application during the currency of the proceedings. Although irrelevant to the issue, her failure to have done so is unexplained.