Scottish Sheriff Court Decisions

HAMILTON SHERIFF COURT
Sheriff Principal B A Lockhart	SD160/12   JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART   in appeal by stated case   in causa   SOUTH LANARKSHIRE COUNCIL   Pursuers and Respondents;   against   EDWARD GEORGE   Defender and Appellant

 

Act: Ms N Weir, Solicitor, Motherwell

Alt: M O'Hanlon, Solicitor, East Kilbride

 

 

HAMILTON: 23 July 2013

The Sheriff Principal, having resumed consideration of the cause, answers the four questions posed by the sheriff in this stated case in the negative; accordingly refuses the appeal and adheres to the sheriff's interlocutor of 11 October 2012 wherein she granted an order for recovery of possession by the pursuers of the subjects at 17 Parkfield, East Kilbride G75 8FD and found the defender liable in the expenses of the action; finds the defender and appellant liable to the pursuers and respondents in the expenses of the appeal as assessed and ordains the sheriff clerk at Hamilton to fix a diet of assessment thereof.

 

NOTE
Background to the appeal

[1] This summary cause, in which the pursuers seek recovery of possession of subjects at 17 Parkfield, East Kilbride called for proof before the sheriff in Hamilton Sheriff Court on 11 October 2012. Both parties were represented by solicitors. At the call over in the morning it was intimated that the matter would be proceeding to proof. There were three witnesses for the pursuer - two were present and the arrival of the police officer from the STOP Unit was imminent. The defender was present and there were four witnesses for the defender present. Due to pressure of court business, parties were advised that the hearing in the proof would commence at 2pm that day.

[2] The sheriff then records in her stated case

"The case called at 2pm for the proof to commence. At that stage Mr O'Hanlon advised that he found himself in some difficulty. His client was not in attendance. He had earlier encountered his client outside the building; the client was described as being slumped over, upset, stating that he did not wish to proceed and that the pursuer could take possession of the property. The client thanked his agent, apologised for any trouble caused, shook his hand and left. Mr O'Hanlon said that his client had cooperated in the preparation for the proof thus far and he was unaware of what the client's difficulty appeared to be. Mr O'Hanlon indicated that he was at somewhat of a loss as to what to do. The court allowed him an opportunity to see if his client had by this time (14.17hours) returned. After enquiry Mr O'Hanlon advised that his client had not returned but he had spoken with his client's partner who had retuned. She advised that the defender had no intention of returning to court; that over lunchtime he had taken alcohol; that he had been drinking for a period of time; was depressed and on medication and had gone to attend at his father's grave.

 

[3] Mr O'Hanlon made a motion to have the proof discharged and to fix a peremptory diet. This would allow him to make some enquiry.

 

[4] The motion was opposed Ms Weir acknowledged Mr O'Hanlon's difficulties. However having regard to the reported instruction from the client to his agent that the defender did not want to proceed with the proof there was no point in discharging and fixing another diet.

 

[5] Furthermore Ms Weir made a motion craving the court to grant decree by default in terms of rule 22.1 of the Sheriff Court Summary Cause Rules.

 

[6] Ms Weir's motion was opposed. Mr O'Hanlon submitted that court should be reluctant to grant decree by default without further enquiry.

 

[7] The court considered the matter. The case had a long procedural history. A minute to recall decree had previously been granted. It appears that the defender gave instructions to his agent that he did not wish to proceed with the case and he consented to repossession. He then left the court. He had chosen to imbibe alcohol over lunchtime. He did not provide his agent with any other instructions. On enquiry of his partner the information was the defender would not be returning to court. Mr O'Hanlon wished to attempt to preserve his client's position and, no doubt, wished to make his own enquiry. However in the circumstances I took the view that the client's final instructions to his agent, before departing the court, was that he was no longer defending the case and agreed to repossession. The defender did not appear to wish to insist upon or advance any argument about reasonableness. In terms of rule 22.1 the court is entitled to exercise its discretion and deal with the matter. In all the circumstances of the case I decided to grant the pursuer's motion for decree by default."

 

[3] It is against that discretionary decision by the sheriff that the defender now appeals. I heard parties on this appeal in Hamilton Sheriff Court on 10 July 2013.

[4] The motion was opposed.

Submissions for the defender and appellant
[5] Solicitor for the defender indicated that it was the nub of his submissions that it was not reasonable for the sheriff to grant the order. It was accepted that the defender on 18 May 2011 had been convicted at Hamilton Sheriff Court of a contravention of section 4(2)(a) of the Misuse of Drugs Act 1971, namely that on 23 February 2011 at 17 Parkfield, East Kilbride, the defender did produce a controlled drug, namely cannabis...in contravention of section 4(1) of the said Act. The defender was fined £200. It was further accepted that at that time the defender was the tenant of the subjects at 17 Parkfield, East Kilbride.

[6] It was further accepted that the conditions of the defender's tenancy contained in the said schedule of the Tenancy Agreement the following:

"Part 2.6 'you must not use or allow the house to be used for illegal or immoral purposes nor should you or any person living with you or visiting you permit criminal offences in or in the locality of your house.'

 

Part 3.3 'you, those living with you and your visitors must not:- ...use your house or allow it to be used for illegal or immoral purposes...misuse, abuse or sell controlled drugs...'

 

Part 3.5 'you, those living with you and your visitors, must now bring into your house any form of controlled drugs...'

 

[7] I was referred to the pursuer's third inventory of productions item 9 which contained five photographs of the offending cannabis plants. It was submitted that this was a very amateurish and incompetent attempt to grow cannabis. It was submitted that these plants could never have grown. It was explained that for growth there was a requirement for a hydroponics system with specialised lights. On this occasion only a domestic light bulb was being used. This was not a typical cannabis production factory. It was an amateurish attempt for the defenders own personal use. This was confirmed in his evidence to the police. It was accepted that he was trying, albeit incompetently, to try to grow cannabis. It was further accepted that this was enough for the criminal charge and he had no alternative but to plead guilty. It was submitted this was not supply of drugs. The attempted cultivation was for his own use and was plainly an incompetent attempt.

[8] It was submitted that the sheriff did not have the opportunity of considering this defence. It was pointed out that in paragraph 7 of her note, having taken the view that the defender's final instructions to his agent before departing the court were that he was no longer defending the case and agreed to repossession, she stated "the defender did not appear to wish to insist upon or advance any argument about reasonableness". It was the submission on behalf of the defender that the sheriff could not abrogate her responsibility to consider reasonableness.

[9] It was accepted that what happened as narrated by the sheriff was accurate.

[10] It was accepted that the defender was in default, but I was referred to Macphail as follows:

"14.12 The sheriff should take account of the principles in which an appeal court will exercise its discretion to repone a party against decree by default which is explained below...where the default consists of failure to attend a diet the court has to consider all the circumstances including whether a further intimation should made to the absent party.

 

14.15 The appeal court will not open up as a matter of course a decree which has been allowed to go by default. It is for the appellant to satisfy the court that decree should be recalled. On the other hand where decree by default has been pronounced against the defender the appeal court is most reluctant in any case in which prima facie there appears to be a proper defence put forward to allow decree to pass against the defender without investigation of that defence...very often accordingly when the appeal court is satisfied that there is proper issue upon which the defaulting party is entitled to a judicial determination, the party is reponed...these considerations, however, are subordinate to the overriding consideration that the court must do what the ends of justice require."

 

[11] I was referred to the case of Canmore Housing Association Limited v Scott 2003 SLT (Sh. Ct. 68) there was a failing by the Housing Association where there was a failure by the housing association to appear at the peremptory diet and the sheriff without making further enquiry granted decree of dismissal by default I was referred to sections of the judgment as follows:

"[6] In my opinion the decree of default must be recalled because the sheriff did not have before him sufficient material upon which to exercise his discretion to grant it.

 

[7] I consider that when a party fails to appear or to be represented at a diet and the sheriff is unaware of the reason for the absence, it is usually appropriate to fix a peremptory diet rather than to proceed at once to decree by default. If the sheriff grants degree by default without being appraised of the relevant facts, there is a risk that an appeal court, to which an explanation has been tendered, may decide that decree must be recalled in the interests of justice...unless, however, there is something material before the sheriff which entitles him to find that there is some good reason for granting decree by default on the grounds of a parties failure to appear or be represented, the prudent course, in my opinion is that the sheriff should give the party a further opportunity to appear, and thus give himself an opportunity to reach a reasoned decision, before pronouncing such a decree.

 

[9] The appeal court will not open up as a matter of course a decree which has been allowed to go by default: it is for the appellant to satisfy the court that the decree should be recalled."

 

[12] It was said in this case that the sheriff had erred in two respects. First, it was said that she had erred in fixing a peremptory diet without further investigation the reason for the disappearance of the defender. Secondly she had not considered the question of reasonableness. It was submitted the sheriff should not have granted decree by default without further enquiry as to the reason for the defenders non‑appearance and also without investigation of whether a prima facie defence had been stated.

[13] I was also referred to Robson on Residential Tenancies, 3^rd Edition para 11-18

"...the sheriff must address the question of reasonableness rather than it be assumed to have been satisfied. This is an issue which has been clearly established in case law...

 

11-19 The sheriff must be satisfied about overall reasonableness before granting a possession order under one of the grounds in Part II of Sch.5. It involves taking into account every relevant circumstance affecting the interests of the parties, such as their conduct and any possible hardship which might result if the order were to be made, as well as the interests of the public."

 

[14] It was clear from the words of her note "The defender did not appear to wish to insist upon or advance any argument about reasonableness" that the sheriff had not considered the question of reasonableness.

[15] If I was with the solicitor for the defender on the question that the sheriff had not reasonably exercised her discretion in failing to make further enquiry about the absence of the defender and to consider the reasonableness of the defence, I still required to be satisfied that there was a prima facie defence available which required enquiry. It was said that there was such a defence advanced by the defender. It was clear that this was an amateur attempt to grow cannabis. This consists solely of plants which did not have the capability of growth. There had no other incidents with the tenancy. In these circumstances it was submitted it was not reasonable to grant the order without enquiry into the merits of the prima facie defence stated. The sheriff ought to have granted the motion of behalf of the defender to fix a further peremptory diet to investigate this particular matter I was asked to return the case to the sheriff to allow the case to proceed.

 

Submissions for the pursuers and respondents
[16] Solicitor for the pursuers accepted that while the offence under the Misuse of Drugs Act, to which the appellant pled guilty, was not the most serious in terms of quality or value, or even type of drug. Nevertheless cultivation of drugs was a serious matter. The plants illustrated in the five photographs lodged in process were young. The defender had clearly planned the cultivation. He had acquired the equipment necessary for cultivation. He had set up the cultivation and thereafter looked after the plants for a period of weeks. It was submitted that the fact the defender may just have started out in the cultivation process when the plants were discovered by the police and the fact that he may not have not been very good at the cultivation was irrelevant. The important matter was that he deliberately set out to use the tenancy for the cultivation of cannabis. There was intention on his part to cultivate the plants and potential for the plants to grow given proper treatment. It was accepted that the plants were young and that the equipment was not particularly professional. However, the pursuer's clear policy as set out in the Tenancy Agreement was that the defender and others in the house should not misuse or abuse controlled drugs. There was a clear breach of the Tenancy Agreement. The pursuers stated policy, in seeking to protect other tenants in the neighbourhood, was to evict tenants who were convicted of production of a controlled drug.

[17] It was noted that the defender accepted that he had been in default. The issue was whether the sheriff should have granted decree by default or fixed a peremptory diet. I was referred to Canmore Housing Association Limited v Scott (supra) where Sheriff Principal Macphail stated in that case at page 69 at para 7

"...I do not suggest that the sheriff should never grant decree by default without giving the party concerned a further opportunity to appear and, as necessary, explain the default...again, where there is no appearance by or on behalf of a defender, and the pursuer's solicitor tenders a letter from the defender's solicitors intimating the defender is no longer insisting in his defence, it may be appropriate to grant decree as craved in terms of rule 16.2(2)"

 

[18] It was submitted that this example, given by Sheriff Principal Macphail, was very similar to the circumstances of the present case, where in addition to the unsatisfactory explanation for the defenders failure to appear, the sheriff was advised by the defenders agent that the defender had said that he was no longer wishing to defend the action. It could, in fact, be argued here that this was decree of default by consent. It was said that this case could be distinguished on the basis that both parties in the present case were represented in court and the defender had indicated to his solicitor at court that he did not wish to proceed and that the pursuers could take possession of the property. Having done so the defender thanked his agent, apologised for any trouble caused, shook his hand and left.

[19] It was submitted the defenders agent had made no argument at the proof diet concerning this not being a default situation in terms of the relevant court rules. It clearly was a default situation in terms of rule 22.1(1) of the Summary Cause Rules 2002 which states "If, after a proof had fixed under rule 8.3(3)(d), a party fails to appear at a hearing where required to do so, the sheriff may grant decree by default." It was submitted that it was nonsensical to argue that the defender's failure to appear for the commencement of the proof was not a default on the basis that he had been present in court earlier. It was submitted that the default was arguably worse in this situation as the defender was aware that the proof was a certainty to go ahead in the afternoon and that the court and witnesses were going to be inconvenienced. This was not a case where the sheriff had been given no explanation for the defenders non‑attendance. She had been given an explanation and, furthermore, clear instructions had been given to the defenders agent by the defender himself that he no longer wished to defend the eviction action. It was submitted the defender was aware of the consequences of his actions as he had specifically stated to his agent that the pursuers could take possession of the property. It was submitted the sheriff exercise her discretion reasonably and carried out the "balancing exercise" appropriately, having due regard to the general considerations appropriate to the matter (see paragraph 7 of the sheriff's note supra). The defenders solicitor had produced a medical report dated 16 October 2012 (five days after the proof diet) the report states "He tells me that he has been drinking approximately40 units of alcohol per day since February 2012 as a consequence of his feeling depressed...I would be grateful if you would bear this in mind in assessing his case." It was suggested that there was no suggestion that there was any mental incapacity on the part of the defender to prevent him giving proper instructions to his client.

[20] I was referred to section 16(2) of the Housing Scotland Act 2001 which provides

"Subject to subsection (1)(ability of court to adjourn proceedings for a period) in proceedings under section 14 the court must make an order for recovery of possession if it appears to the court...that-

i. the landlord has a ground for recovery of possession set out in any of the paragraphs 1-7 of that schedule and specified in the notice required by section 14 and

ii. it is reasonable to make the order."

 

It was submitted that the sheriff had before her a statement of claim/amended statement of claim, supplementary note of defence, five inventories of productions and a joint minute which had been lodged at the diet of proof. She was ready to hear the proof at 2pm and it could be assumed she was aware the substantive issues involved. It was accepted by the pursuer that the pre‑action requirements had been carried out and that the pursuer had a ground for eviction. The defender admitted his conviction for production of cannabis at his tenancy and the "public policy" aspects of the pursuer's policy for dealing with tenants involved in controlled drugs. The only issue in dispute was the reasonableness of evicting the defender in the circumstances of this particular case and the basis of the defence was a narrow one i.e. to try and minimise the seriousness of the conduct in which the defender had been involved. There was nothing in the defences to suggest any particular vulnerability of the defender, such as mental health or depression issues.

[21] With that background knowledge, the sheriff came on the bench and was informed of the defender's failure to return to court. It is clear from the sheriff's note (paragraph 7) that she considered that, in view of the fact of what she was told by the defender's solicitor, the defender was no longer insisting on his defence to the action and was agreeing to repossession. Therefore, by implication, the defender was accepting the reasonableness of the order for eviction. The sheriff states at paragraph 7 line 9

"I took the view that the client's final instructions to his agent, before departing the court, were that he was no longer defending the case and agreed to repossession. The defender did not appear to wish to insist upon or advance any argument about reasonableness."

 

[22] It was submitted that the sheriff required to go no further than this. The defender was accepted he was in default and it was reasonable in all the circumstances to grant decree.

[23] It was submitted that the sheriff had exercised her discretion in the whole circumstances reasonably. As far as the "balancing exercise" was concerned I was referred to paragraph 18.112 of Macphail as follows

"The appellate court may also intervene where, although the judge has not erred in law, misapprehended or misused the facts, considered any relevant matter, or left out of account any relevant matter, the court is satisfied that his conclusion is vitiated by an error in weighing the relevant considerations, by giving too little or too much weight to one or more of them. The weighing of the relevant considerations has been called 'the balancing exercise'. If the court is satisfied that there has been an error in the balancing exercise, or that the judges conclusion was so plainly wrong that there must have been an error, the court may interfere."

 

It was submitted that there had been no error in the balancing exercise carried out by the sheriff. Her decision was one that she was entitled to make and could not be said to be completely or plainly wrong, wholly unwarranted, manifestly inequitable, unreasonable or unjudicial. I was asked to adhere to the sheriff's interlocutor.

 

Decision
[24] I accept the submissions which have been made to me by solicitor for the pursuers. In my opinion the sheriff exercised her discretion reasonably and there was no error in the balancing exercise which she carried out.

[25] Three witnesses for the pursuers and four witnesses for the defender were present on the morning of the proof. The defender was also present. The proof was adjourned until 2pm. The defender was not present at 2pm for the proof to commence. His solicitor had earlier encountered his client outside the building. He stated he did not wish to proceed and that the pursuer could take possession of the property. The client thanked his agent, apologised for any trouble caused, shook his hand and left.

[26] These circumstances are to be seen against the background which is clear from the papers, and which would be known to the sheriff, that the defender accepted that he was in default and the only issue was whether it was reasonable to make the repossession order sought. Having failed to appear at the adjourned diet at 2pm, and having given his solicitor these instructions, in my view it was perfectly proper for the sheriff to conclude that the defender did not wish to insist upon or advance any argument about the reasonableness of making the order. Had that been his position, he would not have instructed his solicitor that he did not wish to proceed and that the pursuer could take possession of the property. The sheriff's conclusion to that effect in my view was a wholly reasonable one. I do not think in the whole circumstances it was appropriate for the sheriff to accede to the motion which was made - without instructions it may be added - on behalf of the defender to fix a peremptory diet. Accordingly, I am of the view that the sheriff was well entitled to reach the conclusion which she did and to grant decree by default in the circumstances.

[27] Esto I am wrong in that conclusion, the sheriff would then have required to consider the nature of the defence intimated and decided whether this was a prima facie defence which it was, in the whole circumstances, reasonable for the defender to have the opportunity to present. In my opinion this is no prima facie defence in this case. The pursuer's attitude to drugs in their tenancy is well‑known publicly and clearly expressed in the tenancy agreements. The defender is not permitted to offend criminally, and he is not permitted to misuse or abuse controlled drugs. One can well understand the pursuer's policy that persons who cultivate controlled drugs should be removed from their tenancies. This is the attitude of responsible landlords having regard to their other tenants. I accept the submission on behalf of the pursuers that the cultivation of drugs of any description is a serious matter. In this case the defender has planned the cultivation. He has gathered the equipment required and set up the cultivation. He has looked after the plants for a period of time. The facts that he may not been very good at what he was doing and that the plants were unlikely to grow owing to the absence of appropriate light are in my view irrelevant. The fact of the matter is that he deliberately set out to use his tenancy for what he perceived to be for the cultivation of drugs. I do not consider he has any prima facie defence.

[28] I do not accept the criticisms of the sheriff's decision in this case. I answer the four questions in the stated case in the negative and refuse the appeal. I have awarded the expenses of the appeal to the pursuers.