Scottish Sheriff Court Decisions

SD3300/07

JUDGMENT

OF

SHERIFF PRINCIPAL

JAMES A TAYLOR

in the cause

West of Scotland Housing Association Ltd

RESPONDENTS & PURSUERS

against

Robert Daly

APPELLANT & DEFENDER

GLASGOW, 23 November 2009.

The Sheriff Principal, having resumed consideration of the cause, Answers the question posed in the stated case in the affirmative; Refuses the appeal; Finds the appellant and defender liable as an assisted party to the respondents and pursuers in the expenses of the cause; Modifies said liability to nil in terms of Section 18(2) of the Legal Aid (Scotland) Act 1986.

NOTE:

[1] The appellant and defender (hereinafter "the defender") is a tenant of the respondents and pursuers (hereinafter "the pursuers"). The pursuers raised an action for recovery of possession of heritable property based upon the defender's rent arrears. Decree was granted in absence on 9 December 2008. The defender then consulted a Citizens Advice Bureau who lodged a minute for recall of the decree in terms of Rule 24.1 of the Summary Cause Rules 2002. A hearing was fixed by the sheriff clerk for 10 March 2009. The defender did not appear at the hearing. When the case called on 10 March 2009 the sheriff refused the application for want of insistence.

[2] The pursuers then sought to enforce the decree. Following upon enforcement proceedings a further minute for recall was lodged with the sheriff clerk who fixed a hearing on the minute for recall for 6 May 2009. At the hearing the sheriff refused the minute as incompetent. Against that decision an appeal was marked to myself and the sheriff duly prepared a stated case. At the hearing of the appeal the pursuers were represented by Ms Sirc, solicitor and the defender by Mr Collins, Advocate.

[3] The reason given to the court at the appeal hearing before me for the defender's failure to attend the hearing for the minute for recall was that the defender was never informed by the Citizens Advice Bureau of the date of the hearing. He had relied upon the Citizens Advice Bureau either attending on his behalf or arranging representation. I was informed that no fault should attach to the defender for not having been present or represented at the hearing.

[4] Parties were agreed that the interlocutor of 10 March 2009, which recorded that the application for recall of the decree was refused for want of insistence, was incompetent. Notwithstanding the absence of the defender, the sheriff ought to have granted the application and recalled the interlocutor. The sheriff did not have regard to the peremptory terms of Rule 24.1.(7) which provides that at the hearing fixed under Rule 24.1.(5) the sheriff "shall recall the decree".

[5] Although parties were agreed that it had not been open to the sheriff to refuse the minute for recall they were not agreed on the effect of the incompetent interlocutor. Mr Collins, in a very carefully constructed argument, urged me to hold that where Rule 24.1.(1) states that "a party may apply for recall...on one occasion only" I should interpret this as meaning that a party could obtain a recall of a decree on one occasion only. Mr Collins submitted that such a submission provided a purposive interpretation of the rules. In one sense that is the effect of Chapter 24 as once a party has applied for a recall, the sheriff clerk has assigned a hearing and service on the other party has been effected, the applicant must obtain a recall. However, to hold as Mr Collins submitted, namely that I should re-write Rule 24.1.(2) to provide that a party could only obtain a recall of a decree on one occasion only, is in my opinion going too far. It involves disregarding the concept of making application. Mr Collins' submission requires one to hold that there is no application for recall until the minute applying for recall has been granted. In my opinion that cannot be correct. It would be open to a party to apply for recall in terms of Rule 24.1.(1) and for the sheriff clerk to fix a hearing in terms of Rule 24.1.(5) but for the party seeking recall to thereafter fail to serve the minute seeking recall. Were I to follow Mr Collins' submission the minute applying for recall would not have constituted an application. Yet there would be a minute for recall in the process. In such circumstances it is difficult to hold that the minute applying for recall does not exist. In any event, I do not consider there to be any need for me to introduce such conceptual difficulties.

[6] Mr Collins referred me to Sureweld (UK) Ltd v DS Baddeley (Engineering) Ltd 1987 SCLR 332, Alpine House Ltd v Links 1990 SLT (Sh Ct) 87 and Reid Furniture Company Ltd v Coll 1999 SLT (Sh Ct) 23. He urged me to follow the approach taken by Sheriffs Principal MacLeod and Hay in Sureweld and Alpine House and not to follow the approach adopted by Sheriff Principal Bowen in Reid Furniture.

[7] In Sureweld the court at first instance allowed the application for recall of the decree to drop from the roll when there was no appearance on behalf of the minuter. Thus the minute for recall was not disposed of at the hearing fixed by the sheriff clerk. Accordingly, when the case came before him following an inept incidental application which had been properly refused by a sheriff, Sheriff Principal MacLeod felt able to remit the case back to the sheriff in order that the hearing of the minute applying for recall of the decree could take place. That course of action is not one which is open to me, even if competent, as the minute for recall was refused for want of insistence when the case called on 10 March 2009. It is not the interlocutor of 10 March 2009 which is under appeal. Perhaps for good reason no submission was made that by appealing the interlocutor of 6 May 2009 holding the second minute for recall to be incompetent, the interlocutor of 10 March 2009 refusing the first minute for recall for want of insistence, was brought under review. I must respectfully disagree with what Sheriff Principal MacLeod said in the second complete sentence on page 334 of the report. There, the Sheriff Principal states "Since decree had not been recalled, it should have been patent that application for its recall had not been made." With the greatest of respect to my predecessor but one, I do not consider the position to be so self‑evidently axiomatic. In my opinion there is a difference between lodging a minute for recall of a decree and then appearing at the subsequent hearing to move the minute seeking recall. In Sureweld there had been an application made by way of minute for recall as provided in the rules and a hearing had been fixed. A hearing could not have been fixed in the absence of an application. Thus I cannot see how it can be said that simply because the hearing did not take place that there had been no application.

[8] In Alpine House Ltd it was the pursuer who, having failed to appear, lodged a minute for recall of the decree of absolvitor which had been granted. The pursuer then failed to appear at the hearing of the minute for recall. As in Sureweld, and unlike the instant case, the minute for recall was treated as dropped. In common with the instant case, a second minute for recall was then lodged. The similarity continues in that the sheriff at first instance in Alpine House Ltd refused the second minute as incompetent just as the sheriff did in the instant case. When analysing Sureweld, Sheriff Principal Hay focused on the sentence in Sheriff Principal MacLeod's judgment to which I have referred in the preceding paragraph. Sheriff Principal Hay concluded that what Sheriff Principal MacLeod meant was: "If the decree has not been recalled it follows that the application for its recall has not been made. The basis of this view must, I think, be that application for recall of the decree embraces not only lodging the minute for recall with the sheriff clerk and paying the appropriate fee, but also attending at court and moving for the minute to be granted and the decree recalled." With that analysis I must respectfully differ.

[9] As I have already stated I cannot agree that the concept of "applying" for recall involves not only lodging the minute for recall but also attending the subsequent hearing. To so hold is to do damage to the words in Rule 24.1.(1). That rule firstly provides that a party may apply for recall of a decree. It then explains the manner in which application must be made. It provides that such an application is made by lodging a minute with the sheriff clerk in Form 30. Once the minute in proper form has been lodged, application has been made. Without an application the sheriff clerk cannot fix a hearing.

[10] It would in my opinion have been clearer if Rule 24.1.(2) had expressly provided "A party may lodge a minute for recall of a decree in the same action on one occasion only." However I believe that since one can only apply for recall of a decree by lodging a minute for recall I am perhaps overly critical of the draftsman. In any event, I am of opinion that a sensible interpretation can be placed upon the rule without the conceptual difficulties required to give effect to Mr Collins' submission. I am fortified in the view to which I have come by the terms of Sheriff Principal Bowen's judgment in Reid Furniture. At paragraph 25D Sheriff Principal Bowen says "I have difficulty in seeing how there ceases to be an application should the defender subsequently fail to appear to move the minute." Having been invited to do so, my immediate predecessor, declined to follow both Sureweld and Alpine House Ltd. Mr Collins submitted that given the view expressed by Sheriff Principal Bowen in the above quotation it was inconsistent therewith to then refuse the appeal. Mr Collins drew my attention to the disposal adopted by Sheriff Principal Bowen. As in Sureweld and Alpine House Ltd there had, in Reid Furniture, been two minutes for recall of the decree. Like Sureweld and Alpine House Ltd, the first minute was not disposed of in that it was allowed to drop from the roll without a hearing. A second minute for recall was then lodged. Sheriff Principal Bowen held that the second minute for recall was incompetent but nonetheless refused the appeal when that competence was challenged. Whilst at first it may appear as if Sheriff Principal Bowen's analysis and the outcome are inconsistent, I sense from the final paragraph in his judgment that he felt obliged to take the course which he did because there was no order made in respect of the first minute for recall. In the final paragraph of his judgment he points out that the first minute for recall ought never to have been allowed to drop from the roll. The procedure adopted by Sheriff Principal MacLeod of remitting the case back to the sheriff to deal with the undisposed first minute for recall did not commend itself. By inference Sheriff Principal Bowen's opinion was that the rules did not permit him to remit the case back to the sheriff to deal with the undisposed of minute for recall first lodged with the sheriff clerk. The possible apparent inconsistency is thus a product of the Sheriff Principal finding himself in a position in which he felt he ought not to have been put.

[11] Mr Collins submitted that expenses should follow success. Ms Sirc submitted that if I found in favour of the defender I should find no expenses due to or by either party. The basis for the submission I did not fully understand. It is with some hesitation that I make a finding of expenses against the defender albeit that the defender has not been successful in the appeal. Mr Collins advanced a very coherent if ultimately unsuccessful argument. On the other hand, Ms Sirc's submission was extremely brief in that she did no more than submit that the sheriff had not erred and therefore I should refuse the appeal. My discussion with Ms Sirc spent more time dealing with what I might do with regard to the expenses of the appeal than in dealing with the substance of the appeal. However I have come to the view that there should be an award of expenses made against the defender as an assisted party and that I should modify these expenses to nil all as moved by Mr Collins.