SD766/03

ABERDEEN CITY COUNCIL v SUSAN HENDRY

Act: Mrs Falconer, Aberdeen City Council

Alt: Party

Aberdeen, 14 February 2006

The sheriff principal, having heard the defender and appellant in person and the solicitor for the pursuers and respondents, answers the first and second questions of law in the stated case in the negative, finds it unnecessary to answer the third question of law, answers the fourth question of law in the affirmative and therefore allows the appeal and recalls the decree pronounced by the sheriff on 10 February 2005; finds no expenses due to or by either of the parties in respect of the appeal; quoad ultra remits the cause to the sheriff to consider of new on 9 March 2006 at 10.00 am the incidental application for the pursuers which was before the court on 10 February 2005 and thereafter to proceed as accords.

Note

On page 2 of the stated case the sheriff sets out four reasons why he refused the in-court adviser's application at the hearing on 10 February 2005 to have the matter continued so that she could ascertain whether she was going to be given further instructions by the defender. He then states that he granted decree for repossession under rule 8.2(5). He evidently said this in response to the request made of him by both parties at the hearing on adjustments to clarify the rule under which he had granted decree. But he does not give any further explanation why he thought it correct to grant decree under this particular rule. Nor does he say whether he considered whether or not it was reasonable to grant decree - see section 16(2)(a)(ii) of the Housing (Scotland) Act 2001.

Rule 8.2(5) provides inter alia that, where the defender does not appear or is not represented, decree may be granted against the defender in terms of the summons. This begs the question at what hearing the defender is supposed to appear or be represented for the purpose of this rule. The answer is given by rule 8.2(4) read with rules 8.2(2) and (3). The effect of these is that the defender must either be present or be represented at the hearing held on the calling date or at a continuation of this hearing on a date which has been fixed by the sheriff.

In the present case the defender did not fail to appear or to be represented at a hearing within the meaning of rule 8.2(5) since 10 February 2005 was not the calling date nor was it the date to which the hearing had been continued in terms of rule 8.2(3). Here it will be recalled that the action had been sisted on 1 July 2004, and the hearing on 10 February 2005 was fixed to consider the pursuers' incidental application for recall of the sist and for decree for recovery of possession with expenses. It is true that the defender was not present or represented at that hearing. But since it was not a hearing within the meaning of rule 8.2(5) I do not think that the sheriff was entitled to grant decree in terms of this rule which, as noted, was the rule upon he which he explicitly relied to the exclusion of any other rule.

It follows in my opinion that the sheriff erred in law and I have answered the fourth question of law in the stated case accordingly.

The defender and the in-court adviser were both present in court (as was the pursuers' solicitor) when I fixed the re-hearing of the pursuers' incidental application to take place on 9 March 2006.