SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS
AT STORNOWAY
A51/06
JUDGEMENT
of
SHERIFF
PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
in the cause
COMHAIRLE NAN EILEAN SIAR
Pursuers and Respondents
against
PAUL COLLINS
Defender and Appellant
|
Act:
Mr Gavin Lawson, solicitor, Comhairle Nan Eilean Siar
Alt:
Mr Donald MacKenzie, solicitor, The MacKenzie Law Practice, Inverness
Stornoway: 27th February 2007
The
sheriff principal, having resumed consideration of the cause, sustains the
appeal and recalls the interlocutor of the sheriff dated 31 October 2006;
grants the reponing note for the defender and appellant and accordingly recalls
the decree in absence pronounced by the sheriff on 28 August 2006 so far as not
implemented; finds the pursuers and respondents liable to the defender and
appellant in one half of the expenses of (1) the hearing before the sheriff on
30 October 2006, and (2) the appeal, and allows an account thereof to be given
in and remits the same, when lodged, to the auditor of court to tax and to
report; quoad ultra remits the cause to the sheriff to proceed as
accords.
Note
[1] In this case the pursuers and respondents
are the owners of the Barvas Industrial Estate on the Isle of Lewis. By a lease dated 2 and 22 May 2002 they let Units 1 and 3 on
the estate to the defender and appellant.
With the consent of the pursuers, he subsequently assigned his interest
as tenant under the lease to the Xaverian Missionaries in terms of a minute of
assignation of lease dated 2 July, 29 August and 22 September 2003.
[2] In article 4 of the condescendence the
pursuers aver that following this assignation the defender was employed by the
Xaverian Missionaries to carry out vehicle restoration in connection with a
project to restore Land Rovers for use in Africa. It is said that the project came to an end in
or about 2005 and that the defender was permitted by the Xaverian Missionaries
to continue to occupy the subjects. In
article 5 it is said that in or about March 2006 the pursuers became aware that
the subjects were being kept in poor condition, that vehicle shells were being
dumped around the estate, restricting access and creating a nuisance to other
tenants and that complaints were received from various parties. In article 6 it is said that on 30 May 2006
the pursuers wrote to the Xaverian Missionaries to advise them that they were
considered to be in material breach of their obligations under the lease and
that thereafter solicitors acting for the Xaverian Missionaries wrote to the
pursuers on 15 June 2006 to confirm that their clients agreed to the
termination of the lease. It is said
that it was agreed that the lease would terminate on 30 June 2006.
It is further said that these same solicitors wrote to the defender on 15 June 2006 advising him of the
position and that he should remove any personal belongings from the
property. The pursuers themselves then
wrote to the defender on 23 June 2006
advising him that vacant possession of the subjects would revert to them on 30 June 2006 and that he was obliged
to vacate the subjects, together with his property, on or before that date.
[3] The action was raised on 13 July 2006 when the court granted warrant to
cite the defender in the usual terms. In
terms of crave 1 the pursuers sought a declarator that the defender had no
right, title or interest to occupy the subjects and decree ordaining him
summarily to remove himself from them under pain of ejection. In support of this crave the pursuers averred
in article 7 that the defender had failed to vacate the subjects on or before
30 June 2006, and in article 8 they averred that he refused or at least delayed
to vacate the subjects and that the action was accordingly necessary.
[4] In terms of crave 2 the pursuers sought to
have the defender interdicted from occupying the subjects or storing property
on any part of the Barvas Industrial Estate.
I shall have more to say about this particular crave in due course.
[5] The initial writ was returned to the
sheriff clerk, ostensibly after service, on 25 August 2006.
It was accompanied by a certificate of citation signed by the pursuers'
solicitor in the following terms:
I, Gavin Lawson, hereby certify that upon the 19th
day of July 2006 I duly cited Paul Collins, defender, to answer the foregoing
writ. This I did by recorded delivery
post to the defender's solicitors (same being authorised to accept service on
the defender's behalf).
The
certificate has attached to it a recorded delivery receipt as proof of posting
to the defender's solicitors. In
addition there is with the initial writ a copy of a letter dated 7 July 2006 from these solicitors to
the pursuers. In this letter the
solicitors stated that they had been consulted by the defender and his wife who
had passed to them various items of correspondence regarding their occupation
of the subjects at Barvas Industrial Estate.
The letter ended with the following paragraph:
We have advised our clients that the Council may, in the
meantime, decide to commence proceedings for recovery of possession and in that
event you may care to note that we are authorised to accept service of any
Writ.
Notwithstanding
the terms of this last paragraph, it is not in dispute that the defender's
solicitors in fact took no positive step to confirm their acceptance of service
on behalf of the defender following the raising of the action.
[6] On the same date as the initial writ had
been returned to the sheriff clerk the pursuers' solicitor minuted for decree
in absence against the defender in respect that he had failed to lodge a notice
of intention to defend. On 28 August 2006 the sheriff clerk
depute certified that no notice of intention to defend had been lodged, and on
the same day the sheriff granted decree in absence against the defender.
[7] On 29 September 2006 a reponing
note was lodged on behalf of the defender in terms of rule 8.1(1) of the
Ordinary Cause Rules 1993 which provides in short that in an action such as
this a 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. Rule 8.1(3) then provides that the sheriff
may, on considering the reponing note, recall the decree so far as not implemented
subject to such order as to expenses as he thinks fit.
[8] In the section of the reponing note which
deals with the defender's explanation for his failure to appear reference is
made to the letter dated 7 July 2006
from his solicitors to the pursuers and to a further letter dated 18 July 2006 from the pursuers'
solicitor to the defender's solicitors.
The material part of this letter reads as follows:
I refer to previous correspondence between yourselves and
my colleague ..... I note from your letter
of 7 July 2006 that you have advised that you are authorised to accept service
of any writ raised by the Council in relation to proceedings for the recovery
of possession of Units 1 and 3 Barvas Industrial Estate, Isle of Lewis. I therefore enclose service copy writ,
citation and inventory of productions for your attention.
It
is not in dispute that this letter was sent by recorded delivery post and that
enclosed with it were the service copy of the initial writ and warrant and the
appropriate forms 04 and 07 addressed to the defender, and in the course of the
appeal hearing his solicitor accepted that, if all these documents had been
sent to him personally by recorded delivery post, then there would have been
valid service upon him.
[9] It is against this background that the
defender goes on in the reponing note to aver:
The pursuers have not effected service nor attempted to
serve the writ upon the defender. The
letter of 18 July from the pursuers' agents enclosing a copy of the writ and
warrant did not constitute proper service of the writ. To effect proper service in this way it is
necessary for the pursuers' agents to send the principal writ and warrant to
the defender's agents and for the defender's agents to endorse on the face of
the principal writ their acceptance of service on the defender's behalf and
then to return it to the pursuers' agents.
The date of such endorsement of service marks the commencement of the 21
day period of notice. The copy writ
which accompanied the letter of 18 July from the pursuers' agents was treated
by the defender's agents as being merely a courtesy copy ahead of proper
service of the writ either by post or sheriff officer upon the defender
personally or upon his agents in the manner described above. The defender contacted his agents immediately
upon receipt of a copy of the extract decree which was intimated to him under
cover of a letter to him from the pursuers' agents of 14 September 2006. Esto
the defender's agents were wrong in their understanding that the letter from
the pursuers' agents of 18 July 2006 did not constitute proper service of the
action, the defender ought to be relieved of the consequences of his agents'
failure to lodge timeously a notice of intention to defend, there being no
fault whatsoever attaching to the defender in this regard.
[10] The defender then sets out his proposed
defence to the action in the following terms:
The tenants' interest in the subjects was re-assigned
from the Xaverian Missionaries to the defender with effect from March
2005. At that time at a meeting between
the defender and Fr Tom Welsh and Fr John Convary of the Xaverians it was
agreed that the lease would be re-assigned to the defender. On the day of that meeting Fr Tom Welsh spoke
on the telephone with Mr Munro Gold, head of Sustainable Communities for the
pursuers and he approved the re-assignment of the lease to the defender. The defender thereafter re-assumed the
tenant's rights and obligations in the lease between the parties ....... The pursuers consented to said
assignation. The defender is in right of
occupation of the subjects until 30
April 2007. Separatim, the pursuers make no
averments on which to base the crave for interdict.
(With
reference to the penultimate sentence of this excerpt, it should be noted that
the date of expiry of the original lease is stated therein to be 30 April 2007).
[11] Parties were heard by the sheriff on 30 October 2006, and evidently after
considering the matter overnight he refused the reponing note by interlocutor dated
31 October 2006. It is this interlocutor which is the subject
of the present appeal. In support of his
interlocutor the sheriff wrote a helpful note, and it is unnecessary to set
this out in full here. In short, the
sheriff concluded that there had been proper service upon the defender and that
adequate grounds had not been made out to persuade him to repone the defender
in the present case.
[12] The first ground of appeal is that the
sheriff misdirected himself in law in holding that there had been proper
service of the initial writ. In support
of this, the defender's solicitor submitted that it was not enough to
constitute valid citation of the defender that the pursuers' solicitor should
have sent the various documents, including the forms 04 and 07, to the office
of the defender's solicitors rather than to the defender himself. The defender's solicitors having stated that
they were authorised to accept service of any writ, the correct procedure would
have been for the pursuers' solicitor to send the principal initial writ to
them and for them to have endorsed upon it a holograph docquet indicating their
acceptance of service on behalf of the defender. Only in this way would there have been proper
service on the defender. Reference here
was made to Macphail's Sheriff Court Practice (3rd Edn) paragraph 6.05, Green's
Litigation Styles page E3021, Lewis' Sheriff Court Practice (7th Edn) page 72,
Dobie's Sheriff Court Practice page 116, Dobie's Sheriff Court Styles page 72
and Busby v Clark 1904 7F162.
[13] In response, the pursuers' solicitor
submitted that the procedure whereby a defender or his solicitor might accept
service by endorsing a holograph docquet on the principal initial writ only
applied in cases in which it was sought to effect informal service upon the
defender, in other words outwith the provisions of the Ordinary Cause
Rules. In the present case there had
been formal service upon the defender, the service copy of the initial writ and
warrant of citation and forms 04 and 07 all having been sent to the defender's
solicitors in terms of rule 5.2(1). In
this situation, said the pursuers' solicitor, it was not necessary that the
defender's solicitors should have endorsed a holograph docquet on the initial
writ in order to constitute valid service upon the defender.
[14] In my opinion the submissions for the
defender on this branch of the case are to be preferred. As already indicated, it is not in dispute
that, if the documents which were sent to the defender's solicitors had been
sent to the defender himself, then there would have been valid service upon the
defender. Likewise, if instead of
sending these documents to the defender's solicitors the pursuers' solicitor
had sent them the principal initial writ and they had then returned this having
endorsed upon it a holograph docquet accepting service on behalf of the
defender, then no more would have been required to convene him as a party to
the action. But the difficulty for the
pursuers is that neither of these things happened. Instead, the documents referred to in rule
5.2(1) were sent by recorded delivery by the pursuers' solicitor to the office
of the defender's solicitors. In so
doing the pursuers' solicitor appears to me to have overlooked the provisions
of section 3 of the Citation Amendment (Scotland) Act 1882 which, so far as
material, provides:
In any civil action .......
any summons or warrant of citation of a person, whether as a party or
witness, or warrant of service or judicial intimation, may be executed in
Scotland ...... by sending to the known residence or place of business of the
person upon whom such summons, warrant, or judicial intimation is to be served,
or to his last known address, if it continues to be his legal domicile or proper place of citation
....... a registered letter by post containing the copy of the summons or petition
or other document required by law in the particular case to be served, with the
proper citation or notice subjoined thereto, or containing such other citation
or notice as may be required in the circumstances, and such posting shall
constitute a legal and valid citation ......
[15] In terms of section 1 of the Recorded
Delivery Service Act 1962 and rule 5.3(1) posting by the first class recorded
delivery service is now an alternative to sending a registered letter by
post. But, whichever method is employed,
the fact remains that, in order to have constituted a legal and valid citation
of the defender in the present case under section 3 of the 1882 Act, the
documents referred to in rule 5.2(1) would have had to have been sent to the
defender's known residence or place of business or to his last known address,
if this continued to be his legal domicile or proper place of citation. Plainly this did not happen and it follows in
my opinion that there was no legal and valid citation of the defender and hence
that the sheriff did indeed misdirect himself in law in holding that there had
been proper service upon him.
[16] Before passing from this aspect of the case,
it is perhaps worth pausing to consider for a moment why, when a solicitor
accepts service on behalf of a defender, it is necessary that the solicitor
should take the positive step of endorsing a docquet on the principal initial
writ that he accepts service on behalf of the defender. The explanation is that, before decree in
absence may be granted in an action in the sheriff court, there must be
evidence before the court to satisfy the sheriff that there has been a valid
citation of the defender. In the majority of cases this will be in the form of
a certificate signed by an officer of the court to the effect that citation has
been effected by one or other of the forms authorised by the law (which did not
happen in this case). As an exception to this general rule, the court will also
recognise that there has been a valid citation where there has been endorsed on
the principal initial writ a holograph acceptance of service by the defender or
his solicitor (which again did not happen in this case). If the acceptance has been signed by the defender
himself, it is self-evident that he must be aware of the action that has been
taken against him. And if it has been signed by his solicitor, the court is
entitled to assume in light of his status as an officer of the court that he
has been instructed by the defender for the purposes of that particular
action. But a letter written by the
solicitor to a prospective pursuer or his solicitor some time before an action
is raised to the effect that he has been authorised to accept service on behalf
of his client does not by itself offer the court the same assurance that, if
and when the action is actually raised, he remains instructed by the defender.
[17] The sheriff having erred in law on this
question, the matter is at large on appeal - see Macphail at paragraph
7.38. In his note the sheriff expressed
the opinion that, if the writ had not been properly served upon the defender,
then the reponing note would have to be granted. Likewise, the defender's solicitor submitted
that, if there had been no proper service upon the defender, then he would have
to be reponed. I do not agree. If this were an action in which the defender
sought reduction of the decree in absence pronounced by the sheriff upon the
ground that there had not been valid citation of the defender, then I can
understand that the court would have no alternative but to grant the
reduction. But this is not the course
which the defender in this case has chosen to follow. On the contrary, he has applied to be reponed
in terms of rule 8.1(1) and, this being so, the matter is at my discretion and
I am entitled to take account of all the circumstances and to balance one
consideration against another in deciding whether to allow the reponing note -
see Forbes v Johnstone 1995 SLT 158
at page 162B.
[18] The defender's
solicitor further submitted that the reponing note should be granted on the
basis of the arguments which he had advanced in support of the second, third
and fourth grounds of appeal which are in the following terms:
2.
Esto the Sheriff
was correct in holding that there had been proper service of the Initial Writ,
he erred in the exercise of his discretion by failing to differentiate between
the actings of the Defender and those of his agents and thereby failed to give
proper consideration to the matter of whether the Defender should be relieved
of the consequences of his agents' misunderstanding of the law in relation to
service of the Writ and the consequent failure timeously to lodge a Notice of
Intention to Defend.
3.
The Sheriff erred in preferring the account of the
Pursuers in relation to the crucial and disputed issue of whether there had
been a re-assignation of the Lease to the Defender without hearing evidence on
the matter.
4.
The Sheriff failed to consider whether on the face of
the averments in the Initial Writ, the Pursuers were entitled to decree for
interdict.
[19] While he was, strictly speaking, correct in
his opinion that the receipt by his firm of the letter from the pursuers'
solicitor dated 18 July 2006 with its contents did not of itself constitute a
valid citation of the defender himself, I cannot help thinking that the
defender's solicitor was perhaps a little unwise, to say the least, in having
apparently taken the view that nothing need be done to protect the defender's
interests against the possibility that his opinion might turn out to be
ill-founded. In the course of his
submissions in support of the second ground of appeal he indicated that it had
been his decision that there had been no proper service upon the defender and
hence nothing for him to do following the receipt of the letter of 18 July 2006
and its contents. I have no reason to
doubt this and I readily accept that no criticism can be made of the defender
himself in relation to this aspect of the matter. But, while he may have an entirely
satisfactory explanation for his failure to appear, it does not follow
necessarily that he should be reponed since, as indicated, I have to take into
account all the circumstances including his proposed defence and not merely his
explanation for his failure to appear.
[20] Before considering the submissions of the
defender's solicitor in support of the third ground of appeal, I should refer
to various letters, the terms of which were incorporated in articles 4, 5 and 6
of the condescendence and copies of all but one of which formed part of the
pursuers' inventory of productions, no. 5 of process. No. 5/6 of process is a copy of a letter
dated 4 April 2006 from the pursuers' solicitor to the Xaverian Missionaries in
which it was stated, inter alia:
In terms of clause 8(1) of said lease, the tenants are
obliged to use the premises for purposes of vehicle restoration and for no
other purpose whatsoever. It is the
understanding of the Comhairle that the subjects are currently being used for
the purposes of a vehicle breaker's yard.
Further, in terms of clause 8(2) of the lease the tenant undertakes not
to use the premises for any purposes which may be an nuisance or annoyance or
cause disturbance to the owners or occupiers of any adjoining or neighbouring
properties. It is the understanding of
the Comhairle that dumping of vehicle shells is being carried out within the
estate. The condition of the whole
estate is poor as a result and complaints from other tenants have now been
received.
[21] No. 5/7 of process is a copy of a further
letter from the pursuers' solicitor to the Xaverian Missionaries dated 30 May
2006. In this the writer referred to his
previous letter of 4 April 2006 and stated, inter
alia:
I enclose recent photographs which as you will note show
that areas of the industrial estate outwith the subjects are in an unacceptable
condition due to being used for the storage of scrap vehicles and parts
thereof. Further, access to other units
in the estate is being restricted. It is
also the Comhairle's understanding that the subjects have been and continue to
be used for a purpose which is an annoyance and disturbance to tenants of
neighbouring properties in the estate, contrary to clause 8(2) of the lease. Finally it is the Comhairle's understanding
that the various breaches of the tenants obligations, as described above, have
continued for some time and have in fact increased in recent weeks.
I would therefore advise that the Comhairle consider you
as tenants to be in material breach of your obligations under the lease. In terms of clause 24 of the lease I hereby
give notice that if the various breaches of your obligations under the lease
are not remedied on or before 9 June 2006, the lease shall be terminated with
immediate effect at that date.
With
this letter there are copies of various photographs which show a variety of
vehicles in a greater or lesser state of disrepair lying in what is presumably
the vicinity of the subjects of lease.
[22] Nos. 5/8 and 5/9 of process are identical
copies of a letter dated 15 June 2006 from the solicitors for the Xaverian
Missionaries to the pursuers in which the writers referred to the pursuers'
solicitor's letters of 4 April and 30 May 2006 and confirmed that the Xaverian
Missionaries wished to terminate the lease.
[23] According to the inventory of productions,
no. 5/9 of process ought to have been a copy of the letter dated 15 June 2006
from the solicitors for the Xaverian Missionaries to the defender to which
reference was made in article 6 of the condescendence. Evidently a second copy of the letter of the
same date from the solicitors to the pursuers has been produced instead. But nothing of significance turns on
this.
[24] No. 5/10 of process is a copy of a letter
dated 23 June 2006 from the pursuers' solicitor to the defender in which the
writer stated:
I understand that you are currently in occupation of the
Comhairle's premises at units 1 and 3, Barvas Industrial Estate. It is my understanding that you are or have
been an employee of the current tenants, the Xaverian Missionaries, and occupy
the premises on that basis.
As I understand you are aware, the lease in favour of the
tenants will terminate on 30 June 2006.
The tenants are obliged to vacate the premises on or before that date
and to remove all their property from the subjects. I would advise that vacant possession will
revert to the Comhairle at that date and you are obliged to vacate the premises,
together with your property, on or before that date. I would also be grateful if you would return
any keys to the premises that may be in your possession to the Comhairle's
Sustainable Communities Department.
The tenants have confirmed that no sub-lease or
assignation of their interest in the premises has been granted by them. In any event, such an assignation or
sub-lease would require the consent of the Comhairle as landlord which has not
been given.
[25] Finally, nos. 5/4 and 5/5 of process are
copies of two letters dated 27 and 29 June 2006 respectively from
the solicitors for the Xaverian Missionaries to the pursuers in which these
solicitors confirmed that the Xaverian Missionaries had not granted any
assignations or sub-leases of the subjects of lease.
[26] In addition to the copies of these various
letters, there was also put before the sheriff at the hearing on 30 October
2006 a copy of a letter dated 27 October 2006 from the solicitors for the
Xaverian Missionaries to the pursuers.
These solicitors had evidently been advised of the terms of the
defender's proposed defence as set out in the reponing note, and in response
they confirmed that they had been advised by their clients, in short, that the
tenants' interest in the subjects of the lease had not been re-assigned to the defender
with effect from March 2005.
[27] Addressing me in support of the third ground
of appeal, the defender's solicitor explained that the defender's position was
that there had been no written re-assignation but that there had been an oral
one which had taken effect on 31 March 2005 which had been the date of the
meeting referred to in the reponing note.
The defender's solicitor accepted that no rent had been paid by the
defender to the pursuers since the date of this supposed re-assignation. He submitted that the sheriff had been wrong
to judge the credibility of the parties' respective positions on the basis of
the letter dated 27 October 2006 which neither he nor the defender had seen
before the hearing on 30 October 2006.
He complained that there had been no proper inquiry by the sheriff to
establish the truth or otherwise of these positions and he submitted that the
fact that the copy correspondence which had been produced had not been impugned
in any way by the defender as being fabricated or otherwise false ought not to
have weighed in the sheriff's mind in deciding to refuse the reponing note.
[28] In my opinion the sheriff was perfectly
correct to be critical of the defence advanced in the reponing note to the
pursuers' crave 1. It seems to me that,
if this matter were ever to get to the stage of a proof, the chances of the
sheriff believing the defender's account of the supposed re-assignation of the
lease having taken effect on 31 March 2005 must be regarded as more or less
nil. I say this for five reasons in
particular. In the first place it is
scarcely credible that, having gone to the trouble of preparing and executing a
formal minute of assignation of lease in 2003 (see no. 5/3 of process), the
parties should then have allowed a re-assignation in favour of the defender to
rest merely upon an oral agreement among the parties with nothing at all in
writing to confirm this. In the second
place, the defender has not produced a shred of evidence of anything said or
done since the date of the supposed re-assignation to confirm that it took
place. Thirdly, the letters from the
pursuers' solicitor to the Xaverian Missionaries dated 4 April and 30 May 2006
are entirely inconsistent with the proposition that there had previously been a
re-assignation of the lease in favour of the defender and it is not likely that
the pursuers' solicitor would have written these letters if there had been such
a re-assignation. Fourthly, there are
the letters from the solicitors for the Xaverian Missionaries which contradict
absolutely the proposition that there had been such a re-assignation. And finally, as indicated, the defender's
solicitor accepted that no rent had been paid by the defender since the date of
the supposed re-assignation. He offered
no explanation for this and, in the absence of this, it seems to me that the
most likely explanation must be the obvious one that no rent had been due by
the defender, there having been no re-assignation in his favour.
[29] Turning to the fourth ground of appeal, the
defender's solicitor submitted that there were no averments in the initial writ
to support the grant of interdict in terms of crave 2. In the first part of this crave it was sought
to interdict the defender from occupying the subjects, but there was no basis
in the pursuers' averments for the suggestion that, if decree were to be
granted in terms of crave 1, the defender would thereafter seek to move back
into the premises. As for the second
part of crave 2 in terms of which it was sought to interdict the defender from
storing property on any part of the Barvas Industrial Estate, it was true that
in article 5 of the condescendence there were references to vehicle shells
being dumped on the estate and other things being done in breach of the lease, but
there were no averments to suggest that the defender was responsible for these
matters and for the rest there were no other averments to support the grant of
interdict against the defender in terms of crave 2.
[30] In response, the pursuers' solicitor drew
attention to the terms of article 4 of the condescendence and submitted that it
was clear in light of what was said there that the defender had throughout been
in occupation of the subjects so that the actions referred to in article 5
could be seen to be those of the defender.
He had, said the pursuers' solicitor, previously refused to leave the
subjects over a considerable period of time and in these circumstances it was
right that interdict should have been granted against the defender in terms of crave
2.
[31] For my part, I am prepared to accept that the
pursuers' averments are apt to support the inference that it was the defender
who was responsible for the dumping of vehicle shells and other breaches of the
lease referred to in article 5 and in the two letters to the Xaverian
Missionaries dated 4 April and 30 May 2006 respectively. But interdict is a remedy which is available
against a wrong which is in the course of being committed or where there are reasonable
grounds for apprehending that a wrong may be committed in the future and,
whatever may have been done or left undone by the defender before the raising
of the present action, there does not appear to me to be any basis in the
pursuers' averments for supposing that he would do anything in breach of the
pursuers' rights as owners of the Barvas Industrial Estate following the grant
of decree against him in terms of crave 1.
[32] In summary, I consider that there is no merit
at all in the proposed defence to crave 1.
But it appears to me that the defence proposed to crave 2 is a sound
one. I do not see any provision in the
rules which would allow the defender to be reponed in relation to one only of
two craves, and I understood the pursuers' solicitor to accept that, if the
proposed defence in relation to crave 2 were held to be a sound one, then the
decree in absence granted by the sheriff would have to be recalled in
full. I have done so accordingly, albeit
with considerable reluctance in light of my opinion on the merits of the proposed
defence to crave 1. At the same time, I
dare say that the pursuers cannot be heard to complain since it was their
decision to incorporate crave 2 into their claim without relevant averments
(or, it has to be said, a sound plea-in-law) in support of this.
[33] The pursuers' solicitor submitted that, if
the appeal was successful, then the expenses of this should be expenses in the
cause. The defender's solicitor, on the
other hand, submitted that there was no reason why the normal rule should not
be followed in this case, namely that expenses should follow success. I have not found this an easy question to
resolve. The real question at the heart
of this dispute has been whether the defender has had any right to remain in
occupation of the subjects following the termination of the lease with effect
from 30 June 2006. On this question he
has plainly lost the argument and, if this had been the only question, I should
have had no difficulty in refusing the appeal.
But he has been able to avoid this outcome having won the argument on
the subsidiary question whether his proposed defence to crave 2 was a sound
one, this question having itself been raised as a result of the pursuers'
actions. He has also won the argument on
the issue of service. The result of all
this has been that, despite having lost on the principal question, he has been
successful in achieving the recall of the decree in absence. In the circumstances I think that the fairest
course would be to find the pursuers liable to the defender for one half of the
expenses of the hearing before the sheriff on 30 October 2006 and of the
appeal.
