Scottish Sheriff Court Decisions

Act: Ms M Scott, Solicitor; Glasgow

Alt: Ms M Ram, Solicitor; Airdrie

AIRDRIE: 28 OCTOBER 2013

The Sheriff Principal, having heard parties, allows the appeal and recalls the sheriff's interlocutor of 6 June 2013 complained of; remits the cause to the sheriff's By Order Roll to proceed as accords; finds the defender and appellant liable to the pursuers and respondents in the expenses of the appeal; allows an account to be given and remits same when lodged to the auditor of court to tax and to report.

NOTE
[1] In this case the pursuers seek warrant in terms of section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970 in respect of the property at [address] and an order for removing in terms of section 5 of the Heritable Securities (Scotland) Act 1894.

[2] After sundry procedure occasioned particularly by the defender's difficulties in obtaining legal aid, the sheriff on 9 May 2013 appointed the defender, who was personally present to lodge answers to the summary application within 21 days. The sheriff continued the cause to the By Order Roll of 6 June 2013 to enable said answers to be lodged and the continued consideration of the pursuer's motion to grant decree until said diet. The defender lodged answers on 28 May 2013. In these answers the defender explained that she was endeavouring to obtain alternative financing in order to remortgage with another provider. She was eligible to participate in the government funded mortgage rescue scheme. She had three children, one of whom was under 16 years of age. She had a dependant granddaughter of four months. If the application was granted the defender and her family would be homeless and require to seek state funded accommodation. This would incur public money and cause substantial prejudice and undue hardship to the defender and her family. In such circumstances it was not reasonable to grant the application. She requested that the application be sisted for a set period to enable the defender to remortgage. At the appeal hearing before me the solicitor for the defender stated that on 22 May 2013 she wrote to the solicitors acting for the pursuers enclosing an income and expenditure analysis of the defender with a view to arranging a repayment plan. The solicitors for the pursers stated to me that they did not receive this letter.

[3] At the appeal hearing before me on 28 October 2013, the solicitor for the defender stated that on 28 May 2013 she wrote to the defender informing her that legal aid had not been granted and advising her to represent herself at court on 6 June 201 and seek a sist to await her legal aid decision. However the defender stated she did not receive that letter. In her written submissions to me it was claimed on behalf of the defender that she was not aware she had to personally attend on 6 June or that she would not be represented. It is difficult to accept that submission standing the fact that the defender was present in court on 9 May 2013 when the case was continued until 6 June 2013.

[4] When the case called before the sheriff on the By Order Roll on 6 June the defender was not present, nor was she represented by a solicitor. The sheriff granted decree by default. In the note attached to his interlocutor the sheriff states:

"This case called before me in the ordinary court at Airdrie on 6 June 2013. Mr Paul Nicolson, solicitor appeared on behalf of the pursuers. There was no appearance by or on behalf of the defender. I was informed by the pursuers agent that the defender had found herself in financial difficulties following upon the death of her husband but that the mortgage, which was the subject of the present action, had been taken out after said death and she had not been making the contracted repayments. The pursuer's agent moved me to grant decree by default with expenses as taxed. I granted the same.

The note of appeal avers in ground 3 thereof that I should have fixed peremptory diet. I would have done that if the defender's solicitor had withdrawn from acting and the defender had not been aware that the case was to call on 6 June. The defender had been personally present at the prior calling of the case and was well aware that it was to call again on 6 June. She did not attend the diet nor did she instruct representation.

In these circumstances I was of the view that a peremptory diet was not appropriate and that the pursuers were entitled to decree by default."

[5] Section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970 sets out the steps required to be taken by the court before granting an application made under this section as follows:

"(5) The court may, on an application under subsection (1B) above, continue the proceedings or make any other order that it thinks fit, but it may not grant the application unless it is satisfied that ...

(b) it is reasonable in the circumstance of the case to do so

(6) In considering an application under subsection (1B) above where the debtor appears or is represented, the court is to have regard in particular to the matter set out in subsection (7) below

(7) Those matters are -

(a)   the nature of an reasons for the default

(b)   the ability of the debtor to fulfil within a reasonable time the obligations under the standard security in respect of which the debtor is in default

(c)   any action taken by the creditor to assist the debtor to fulfil those obligations

(d)   where appropriate, participation by the debtor in a debt payment programme approved under part 1 of the Debt Arrangement and Attachment (Scotland) Act 2002; and

(e)   the ability of the debtor and any other person residing at the security subjects to secure reasonable alternative accommodation."

The sheriff accordingly, when deciding whether or not to grant an application under section 24, is required to consider inter alia: (a) whether it is reasonable in the circumstances of the case to do so and (b) the ability of the debtor and any other person residing at the security subjects to secure reasonable alternative accommodation. There is no reference in the sheriff's note to his consideration of these matters. The sheriff states that he granted decree by default on the basis that defender did not appear and had not made the contracted payments. In my opinion the sheriff erred in restricting his consideration of whether or not to grant this application to these issues. He is required to state why in the whole circumstances it was reasonable to grant decree by default. He is required to consider and to comment on the ability of the debtor and any other person residing at the security subjects to secure reasonable alternative accommodation. The defender in her answers states that she and her family would be homeless and require to seek state funded accommodation if the application was granted. It may be that the sheriff's view was that this was reasonable in the whole circumstances. However, whatever the sheriff's view, he is obliged to report that he has considered the issues set out in section 24(5), (6) and (7) and to explain fully why, in the whole circumstances, he granted decree by default..

[6] The sheriff makes no reference in his note to the contents of the answers lodged by the defender on 28 May 2013. In my view these answers contained material which he required to address in deciding whether or not it was reasonable to grant decree by default.

[7] In these circumstances I take the view that the sheriff's interlocutor of 6 June 2013 should be recalled. I shall remit the case to the By Order Roll where an early hearing should be fixed. The pursuers will no doubt then renew their motion for decree and the sheriff will require to consider that motion in light of the provisions of section 24(5), (6) and (7) of the 1970 Act.

[8] I understood from the solicitor for the defender that there are still issues with the Scottish Legal Aid Board. Be that as it may, I made it clear to the defender's solicitor, and the defender herself who was in court, that attendance would be necessary at the By Order Roll hearing which would be intimated to them when a motion for decree would be made.

[9] I was moved by solicitor for the pursuers and respondents to make an award of the expenses of the appeal to her clients. The appeal to protect the defenders interests had been occasioned by the defender's failure to attend court on 6 June 2013. She had been personally present when that diet was fixed. This award was conceded by solicitor for the defender. I have made the appropriate order.