Scottish Sheriff Court Decisions

HAMILTON SHERIFF COURT
Sheriff Principal B A Lockhart	B390/12 JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART   in causa PERSIMMON HOMES First Pursuers and Respondents And CHARLES CHURCH DEVELOPMENTS Second Pursuers and Respondents against BJR REALISATIONS LIMITED First Defenders And SEAN DONAGHEY Second Defender and Appellant

Act: Mr Joel Conn, Solicitor,

Alt:Mr Paul McConville, Solicitor,

 

 

HAMILTON 25 September 2013

The Sheriff Principal, having resumed consideration of the cause; refuses the appeal and adheres to the sheriff's interlocutor of 15 February 2013 and 13 March 2013 complained of; finds the second defender and appellant liable to the pursuers and respondents in the expenses of the appeal and allows an account thereof to be given in and remits same when given in to the auditor of court to tax and to report.

 

 

 

NOTE:

Introduction and Background

[1] In this case the craves are in the following terms;

"(One) to grant warrant to the pursuers in terms of section 25(1B) of the Conveyancing and Feudal Reform (Scotland) Act 1970 to enter into possession of the heritable subjects known as and forming Tile Work Cottage, Station Road, Larkhall, part of Highlees Farm, Larkhall being the subjects described in the standard security by Bee Jay Rail Limited for all sums due to become due to Persimmon Homes Limited registered in the Land Register under title numbers LAN28801 and LAN47724 and to exercise in relation to the said subjects all powers competent to a creditor in lawful possession of the security subjects including the power of sale of the said security subjects.

(Two) to grant warrant to officers of court summarily to eject the second and third defenders and their tenants, relatives, servants and employees and others for whom they are responsible with their goods, gear and whole belongings furth and from the same and to make the same void and redd and to the end that the pursuers may enter thereon and peacefully possess and enjoy the same."

(Third) To find the first defenders liable in expenses, and the second and third defenders liable in expenses only in the event that they offer any opposition thereto.

 

[2] It is important to understand that in the first crave the pursuers seek to exercise a right open to them in terms of section 24(1B) of the Conveyancing and Feudal Reform (Scotland) Act 1970. The second crave is a common law crave for ejection of the second and third defenders from the property. The action was served on the first defenders, who are now in liquidation. They were at that time the heritable proprietors of the subjects and debtors in the standard security mentioned in crave one. The action was also served in the second and third defenders who were not entitled residents in terms of section 25C of the 1970 Act. They were at the time of raising the action resident in the property. The second defender continues to reside in the property. The third defender died on 27 May 2013.

 

[3] The first defenders did not enter appearance in the action. A decree in terms of crave one was granted against them on 21 May 2012. The second and third defenders had entered appearance and were represented by a solicitor at that hearing. No objection on their behalf was offered to the pursuers' motion for decree against the first defenders in terms of crave one. It should be noted that, in terms of section 24 (5) of the 1970 Act the court may not grant the application unless it is satisfied that...it is reasonable in the circumstances of the case to do so. Further, in terms of section 24(6) of the 1970 Act, before considering an application under section 24(1B) (namely for a warrant in terms of crave one) where the debtor appears or is represented, the court is to have regard in particular to the matters set out in sub section (7) below. The matters which the court is required to have regard in terms of section 24(7) include "(e) the ability of the debtor and any other person residing at the security subjects to secure reasonable alternative accommodation". It was accordingly open to the second and third defenders, when the solicitor for the pursuers sought warrant in terms of crave one, to plead before the sheriff that the warrant should not be granted because it was not reasonable in the circumstances of the case to do so, or because they did not have the ability to secure reasonable alternative accommodation at that time. As the solicitor acting for the second and third defenders consented to the warrant being granted against the first defenders in terms of crave one, the sheriff was entitled to take the view that second and third defenders did not wish to raise these issues with the court.

 

[4] On 21 May 2012 the sheriff, having granted a warrant in terms of crave one, appointed the cause to debate in respect on the pursuers pleas in law in respect of craves two and three for 23 July 2012. Exercising their warrant in terms of section 24(1)(B) of the Conveyancing and Feudal Reform (Scotland) Act 1970, the first pursuers then marketed the subjects for sale. The first pursuer's disponed the property to the second pursuers on or about 28 August 2012. The second pursuers are accordingly now the heritable proprietors of the subjects.

 

[5] The second defender now occupies the residential property known as Tile Work Cottage, Station Road, Larkhall, his wife having died on 27 May 2013. It is the pursuers' case that the second defender has no right or title to occupy the subjects. They have confirmed, through his legal agents, that he possesses no written lease for the property. The second defender's solicitors have narrated that he "Pays rent to Highlees Farm Company, and has done so since the start of 1999". The pursuers are unaware of who "Highlees Farm Company" may be. The heritable proprietors of Tile Work Cottage were the first defenders who took entry on 17 September 1999. The first pursuers have confirmed with the liquidator of the first defenders, Robert Wallace that he has received no rental payment from the second defender nor receives any rental payments from "Highlees Farm Company". The second defender is neither tenant nor a sub-tenant of the first defenders.

 

[6] In these circumstances the pursuers sought an order ordaining the second defender to vacate the subjects under pain of ejection. Any lease was a pretended one and provided no real right in the property.

 

[7] The second defender makes various averments about a minute of agreement which he claimed he entered into with his wife in respect of the property with William Douglas Wightman and Jessie Simpson Wightman. It is the second defenders case on record that he and his wife occupied the property in terms of said minute of agreement. Whatever the position may be about that minute of agreement, it was the first pursuers' position that, as standard security holders in the standard security, they did not consent to the lease of the subjects. Accordingly no right had been vested in the second defender.

 

[8] As I understand the position diets of debate fixed for 21 May 2013, 23 July 2012, 26 August 2012, 10 October 2012 were discharged. At the debate on 20 December 2012 the solicitor for the second and third defenders verbally sought leave to raise the question of the competency of the action. He first sought to raise the matter without a plea in law to that effect, but then made a motion for leave to amend at the bar by adding a plea to the competency. The sheriff refused this motion and also refused leave to appeal. The debate then proceeded.

 

[9] The debate could not be concluded on 20 December 2012 and was continued until 11 January 2013. On that date solicitor for the second and third defenders sought to lodge an 18 page Minute of Amendment. The sheriff refused to consider the minute of amendment on the grounds that it came too late and without adequate explanation. She also accepted the pursuer's argument that there would be prejudice to them if it was allowed and this could not be compensated for by an award of expenses.

 

[10] It was conceded by solicitor for the second and third defenders that there was nothing on the record as it stood to allow them to argue a defence to the pursuers' case in respect of crave two. The sheriff was moved on behalf of the second and third defenders to assign an evidential hearing to enable the question of reasonableness to be argued in terms of section 24 of the 1970 Act. In response, it was said on behalf of the pursuers that any decree of ejection against the second and third defenders would not be a decree in terms of section 24 of the 1970 Act, but would be a decree at common law against non- authorised tenants. No such proof was accordingly necessary. The sheriff considered the pursuers' submissions were well founded. She accordingly granted decree in terms of the second crave.

 

[11] It is proper that at this stage I record what the sheriff said in her note. Having observed that previous diets of debate had been fixed for 21 May 2012, 23 July 2012, 22 August 2012 and 10 October 2012, and had not proceeded, the sheriff stated;

"4 The case called before me for said diet of debate on 20 December 2012...

5 On the unopposed motion of the solicitor for the pursuers I allowed a supplementary note of submissions and supplementary list of authorities for the pursuers to be lodged at the bar. These had been prepared upon receipt of the draft submissions for the second and third defenders who verbally sought leave to amend their pleadings to raise the question of the competency of the action. This was opposed by the pursuers. Having heard parties I refused the defenders motion and also refused their motion for leave to appeal. The matter of the competency of the action had never been raised at any time since the action was raised. The defenders had been represented at numerous callings of this case and had never raised the point and indeed had not objected to decree as first crave being granted. The only reason advised for this coming at such a late time was that there had been problems with legal aid being granted and it was only when "fresh eyes" looked at the matter whilst preparing for debate that it was considered necessary. It was in the interests of justice to grant the motion. However it appeared to me that this came too late.

6. The pursuers' agent thereafter proceeded with the debate and elaborated on his draft submissions. There was insufficient time for him to complete his submissions and accordingly the diet of debate was continued to 11 January 2013. Due to the events that took place on that date I do not need to summarise the pursuer's submissions.

7. On 11 January 2013 the solicitor for the defenders sought to lodge a Minute of Amendment. This was opposed by the pursuers. Having heard parties I refused to allow the Minute of Amendment. The defenders submitted that they were merely expanding their case and not changing their primary argument. It was said that the pursuers' submissions at the last hearing had drawn the defenders attention to the need to amend. It was said that at said hearing certain valid points had been made on behalf of the pursuers which had caused the defender's solicitor to review his pleadings.

8. The solicitor for the pursuers maintained that the Minute of Amendment did not amount to an expansion of the defenders existing position, but sought to delete the defender's existing position and advance a new defence on a completely new factual basis. The pursuers' position had been clear from the outset and it was said that nothing new had been advanced in the earlier hearing before me. Having considered the terms of the Minute of Amendment I considered that the pursuers' argument was well founded. Further the defender's agent conceded that there was no defence to the action on the basis of the defender's original pleading. The same arguments as before were advanced as to why this was coming so late.

9. Again I considered the Minute of Amendment came too late and without adequate explanation. I also accepted the pursuer's argument that there would be prejudice to them if it was allowed and this could only be compensated for by an award of expenses in their favour.

10. In view of the concession made by the defender's solicitor that there was nothing on record for them to argue in defence of the pursuers' case, the pursuers moved for decree as second crave with expenses as taxed. The defender sought to have an evidential hearing assigned to enable the question of "reasonableness" to be argued in terms of section 24 of the 1970 Act. On behalf of the pursuer's it was argued that any decree for ejection against the second and third defenders would not be a decree in terms of section 24. It was submitted that it would be a decree at common law against non-authorised tenants. I considered that the pursuer's submissions were well founded and accordingly granted decree in terms of crave 2..."

 

[12] A detailed note of appeal was lodged on behalf of the second and third defenders. At the appeal hearing before me on 30 August and 4 September 2013 the appeal concentrated on three issues:-

(1) Did the sheriff had err in her refusal to hear solicitor for the second and third defenders on the competency of the action on 20 December 2012.

(2) Esto the sheriff did err, was crave two competent in this summary application.

(3) Esto it was competent, did the sheriff exercise her discretion unreasonably in refusing to allow the defenders to lodge a minute of amendment on 11 January 2013.

I deal with these issues in turn.

 

(1) Did the Sheriff err in refusing to hear Solicitor for the Second and Third Defenders on 20 December 2012 on whether Crave 2 was competent in this action.

[13} It was argued on behalf of the appellant that, in refusing to hear argument for the second and third defenders on the issue of competency of crave 2 on 20 December 2012, the sheriff deprived the second and third defenders of a fair hearing at common law. In addition I was referred to article 6(1) of the European Convention on Human Rights which states inter alia:-

"In the determination of his civil rights and obligations...everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

 

It was submitted that the sheriff was obliged to allow the second and third defender a fair hearing. In refusing to hear argument on the question of competency on 20 December 2012, the sheriff deprived the second and third defenders of a fair hearing and thus acted unlawfully by acting in a manner incompatible with the second and third defenders convention rights under article 6(1). It was also submitted that the issue of competency was pars iudicis and the sheriff refused to treat it as such. It was submitted that by doing so the sheriff had erred in law.

 

[14] I take the view the sheriff erred in refusing to hear the solicitor for the second and third defenders on the question of the competency of crave 2 in this action. This is not a matter in which she had a discretion. If a crave in an action is incompetent it is effectively null and any order pronounced by the court in respect of that crave has no effect. The sheriff ought to have considered any submissions the solicitor for the second and third defenders wished to make on the question of competency when this matter was raised with her.

 

[15] I was asked by solicitor for the appellants to remit the cause to the sheriff for consideration of the question of competency. I refused to do so. Crave 2 was either competent or incompetent. If it was incompetent, it was not in the interests of justice that any further expense be expended upon it. I took the view that I should hear parties on the question of competency and rule thereon.

(2) Whether it is competent in a Summary Application, raised in terms of section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970 to include a Common Law Crave for Eviction.

 

[16] Crave 1 for the pursuers seeks warrant to enter into possession of the heritable subjects known as informing Tile Work Cottage, Station Road, Larkhall, and to exercise in relation to the said subjects all powers competent to a creditor in lawful possession of the security subjects including the power of sale of the security subjects. The basis of the action is that the debtors, namely the first defenders were in default and their obligations under the standard security. Section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970 provides inter alia.

(1B)

"A creditor in a standard security (where the land is used to any extent for residential purposes) may, where the debtor is in default within the meaning of paragraph (a)(b) or (c) of standard condition 9(1) apply to the court for warrant to exercise any of the remedies which the creditor is entitled to exercise on a default within the meaning of standard condition 9(1)(a).

 

(1C) Before making an application under sub section 1(B) above the creditor must comply with the pre action requirements imposed by section 24A of the Act.

 

(1D) An application is to be made by summary application (regardless of whether it includes a crave for any other remedy).

 

(5) The court may, on an application under sub section (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;

(a)            The creditor has complied with sub section( 1C) above.

(b)            It is reasonable in the circumstances of the case to do so. In considering an application under sub section (1B) above where the debtor appears or is represented, the court has to have regard in particular to the matter set out in sub section (7) below.

 

(7) Those matters are -

(a) The nature of and 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 one of the Debt Arrangement and Attachment (Scotland) Act 2002; and

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

 

[17] It was conceded that all the pre action requirements had been carried out by the pursuers. In this case it is the pursuer's position that the first defenders were in default and the second and third defenders who occupy the property were there without title. In terms of sub section (1D) the application requires to be made by summary application. It seems to be proper in view of the terms of section 24(5)(b) and (7)(e) which I have already set out, that the parties at the time of raising the action who were residing in the properties should be cited as additional defenders. In this case the second and third defenders at that time had an interest to be heard on (i) whether it was reasonable in the circumstances to grant the application, (section 24(5)(b), and (ii) their ability to secure reasonable alternative accommodation (section 24(7)(e).)

 

[18] It was accepted by both parties that the second and third defenders were not, at the time of raising the action, entitled residents in terms of section 24B of the 1970 Act. This would have given them the right to enter any process which was raised against a debtor by the creditor in a standard security. However, not withstanding the fact that they are not entitled residents in terms of the Act, for the reasons which I have set out above, the court requires to have regard to the interests of the current residents in the property. They are not entitled residents and therefore not obliged to be convened in the process in terms of section 24(B). However, in my view they have an interest in the proceedings in view of the terms of sections 24(5)(b) and 24(7)(e) and therefore they could reasonably make an application to be convened in the process. The second and third defenders clearly at that time accepted that they did have an interest as they entered appearance and instructed a solicitor to protect their interests.

 

[19] It was open to the second and third defenders to lodge answers to the summary application to the effect that decree should not be granted in respect of crave 1 because it was unreasonable in the whole circumstances or because they did not have the ability to secure reasonable alternative accommodation. The fact that they did not seek to raise any of these issues and in fact, through their solicitor, consented to decree to warrant being granted in favour of the pursuers, does not mean they did not have an interest to be brought into this summary application.

 

[20] It would appear to follow logically that, having obtained the necessary warrant in terms of section 24(1B) of the 1970 Act, the pursuers should be entitled in the same action, the current residents in the premises having being called as defenders, to have a crave for ejection of the second and third defenders from the property considered. The problem, however, is the provisions of section 35(1) of the Sheriff Court (Scotland) Act 1971 which provides;

"The definition of "summary cause" contained in paragraph (i) of section 3 of the Sheriff Courts (Scotland) Act 1970 shall cease to have effect, and for the purposes of the procedure and practice in civil proceedings in the Sheriff Court there shall be a form of process, to be known as "summary cause" which shall be used for the purposes of all civil proceedings brought in that court, being proceedings of one or other of the following descriptions namely;-...(C) Actions ad factum praestandum and actions for the recovery of possession of heritable or movable property, other than actions in which there is claimed in addition, or as an alternative, to a decree ad factum praestandum or for such recovery, as the case maybe, a decree for payment of money exceeding five thousand pounds in amount (exclusive of interest and expenses)."

 

It was accordingly argued on behalf of the second and third defenders, that, having obtained their decree in terms of crave 1 under section 24(1) of the 1970 Act the pursuers should then have abandoned this action and raised a separate summary cause for the recovery of heritable property as required by section35(1)(c) of the 1971 Act.

 

[21] In terms of section 24(1D) of the 1970 Act an application for the warrant first craved in this case required to be made by summary application. The sub section continues

"regardless of whether it includes a crave for any other remedy". The question which has arisen in this case is whether it is competent to conjoin the application for a warrant in terms of section 24(1), which is made by summary application procedure, with a crave for ejection following thereon in that process. It is the appellant's position that it is necessary to raise a separate summary cause for recovery of heritable property in view of the terms of section 25(1)(c) of the Sheriff Court (Scotland) Act 1971. This result would seem unfortunate as it would result in duplication of processes and additional expense.

 

[22] This issue was considered in Macphail Sh.Ct Practice 3^rd Edition at paragraphs 23.11 and 12 where the learned author stated;

"23.11 Difficulties have arisen where a pursuer has sought to combine in one initial writ a crave for a remedy which by statute is allocated to a particular form of process, such as a summary cause or a summary application and in additional or alternative crave for a further remedy which is incompetent in that form of process. None of the proposals for resolving these difficulties appears to be entirely satisfactory. Differing views have been expressed as to the procedure to be followed where a pursuer seeks both to recover the possession of heritable property and to obtain a further remedy other than a decree for payment of £1,500 or less, such as damages exceeding £1,500, or interdict against resumption of occupation. In one case it was held that an ordinary action for ejection and interdict was incompetent. The sheriff accepted that the action would also have been incompetent if raised as a summary cause. The sheriff indicated that the pursuers' appropriate course would have been to raise two separate processes: an action for recovery of possession by way of a summary cause, and a separate action for interdict by way of an ordinary cause, with the possibility that the additional expense this entailed might be minimised by remitting the summary cause to the ordinary roll and conjoining it with the interdict action. In another case, where the pursuer raised an ordinary action craving (1) declarator of irritancy and (2) removing, the latter crave was held to be incompetent and it was observed that the action should have been raised as a summary cause and remitted to the ordinary roll.

23.12 It seems difficult to reconcile these decisions with the former practice of the court in dealing with extraordinary removings, which contained craves for declarator of irritancy and for removing. Such actions are regularly brought without objection as ordinary causes, and are competent, though rare, in the Court of Session. The problem arises from the inclusion in section 35(1)(c) of the single exception as to the pecuniary crave which exceeds the summary cause limit. It is submitted that the exception was specified only because such a crave would be beyond the scope of summary cause procedure as specified in section 35(1)(a), and that the object of its inclusion was to make it clear that it is competent to raise as a summary cause an action craving recovery of possession with an additional or alternative pecuniary crave within the summary cause limit. Its inclusion does not necessarily imply that it is incompetent to bring an ordinary action with a crave for recovery of possession and other craves beyond the scope of summary cause procedure, and there appears to be no useful purpose to be served by reading section 35(1)(c) in that way. Rules as to forms of procedure are not ends in themselves, but are intended to secure the attainment of justice between the parties consistent with the public interest. It is submitted that the interpretation of section 35(1)(c) which is proposed above would not infringe either the interests of parties or the public interest, and is to be preferred to an interpretation which requires multiplication or complexity in procedure."

 

I respectfully agree with the learned author's interpretation of section 35(1)(c) of the Sheriff Court (Scotland) Act 1971. It is undoubtedly to be preferred to an interpretation which requires multiplication and complexity in procedure. In particular, I agree that rules of procedure are not ends in themselves, but are intended to secure the attainment of justice between the parties consistent with the public interest.

 

[23] It was submitted on behalf of the appellant that the court could not look behind the terms of section 25(1)(c) of the Sheriff Court (Scotland) Act 1971. The crave for removing should have been raised as a separate action and that action should have been a summary cause. It was further submitted on behalf of the appellant that this was an attempt by the pursuers to convene different defenders with different interests and against whom different remedies were sought in one action. I was referred to Sinclair v The Caithness Flagstone Company Limited and Another 1898 25R 703, The Belmont Laundry Company Limited v The Aberdeen Steam Laundry Company Limited (1898) 1F45, Hook v McCallum 1905 7F 525 and The Rose Street Foundry & Engineering Company v John Lewis & Sons Limited 1917 SC 341, Fleming v McGillivray 1946 SC 1 and Grunwald v Hughes & Others 1965 SLT 209, Turnbull v Flame 1966 SLT 24.

I do not think these cases are helpful. This is not an attempt to convene different defenders with different interests and against whom different remedies are sought in one action. The whole action has a common thread. The pursuers, who are the creditors in a standard security, crave a warrant to exercise their rights on default. It is a necessary corollary of obtaining such a warrant that they should be in a position to remove the current residents from the property unless they have a legal right to remain. In my opinion, for the reasons I have already given, the second and third defenders were properly cited in this action for their interest. They accepted they did have an interest as they entered appearance through their solicitors. It appears to me proper, expeditious and economic to have all issues involving these parties dealt with in one action. Otherwise the defenders will have to pay twice for defending two separate actions. Similarly the pursuers will have to pay twice for raising two separate actions when the subject matter and the evidence are essentially the same.

 

[24] Reference was made to the case of Tamroui v Clydesdale Bank 1997 SLT St.Ct.20. In that case the lenders obtained a decree in terms of the 1970 Act. They then sought to take possession of the property. They had no knowledge of the pursuer's presence until the Sheriff Officers arrived to enforce the lenders warrant. The pursuers sought interim interdict against being removed from the subjects. The sheriff properly granted interim interdict and stated that an action for removing was necessary in the circumstances. It was not enough merely to have a warrant under section 24. He opined that a summary cause in terms of section 35(1)(c) of the 1971 Act should have been brought. That would appear to me to be correct. The pursuers had only obtained a warrant under section 24 of the 1970 Act. They did not have a decree of removing and required to raise a further action to obtain one.

 

[25] In the situation in which they found themselves in this action, the pursuers first require to obtain a warrant under section 24 of the 1970 Act. Having obtained that warrant, they then require to obtain the authority of the court to remove residents from the property who they claim have no right to be there. The evidence and the arguments open to the residents in both actions will be the same. Solicitor for the respondents claimed that this was a valid composite action. I was referred to the sections in Macphail which I have quoted in paragraph 22 hereof. I was also referred to Higgins, Enforcement of Heritable Securities para 11.2 where the learned author stated:-

"Although there is little doubt that Tamroui & Cameron was correctly decided, the Repossessions Group of the Scottish Government recommended that the law as decided in Tamroui should be codified and enshrined in primary legislation to provide certainty and draft legislation has been prepared.

 

Until the passing of the Home Owners and Debtor Protection (Scotland) Act 2010, it was possible for tenants in the same position as Mrs Tamroui to seek to be reponed and then sisted as a party minuter to the action. The introduction of summary application procedure and recall procedure in residential cases means that, in the short term, tenants in such a situation must again meet attempts to evict them, where the 1988 Act procedure has not been followed, by means of interdict." There is a footnote to that statement," although it is possible that a sheriff might exercise his discretion to allow a tenant to enter the process in the action by the creditor against the debtor."

 

That is exactly what has been done in this case and it is clearly procedure which commends itself to the learned author.

 

[26] It was submitted that the prevailing modern practice was to relieve a party of the consequences of mere technical irregularity. I was referred to Paxton v Brown 1908 SC406 per Lord President Dunedin at page 414:-

"I am well aware that the whole tenancy of modern times is not to turn an action out of court on a technical plea....I think that here the modern practice of not multiplying actions and not putting parties to unnecessary expense comes to our help."

 

I was also referred to MacPhail para 13.50:-

"...the statutory provisions discussed above prescribe the circumstances in which a case which has been properly raised and correctly assigned to the appropriate role of civil causes may or must be transferred to another role. They do not deal with a situation in which an action which can only be properly raised under one form of process has been raised in error under the wrong form of process. There appear to be two views of such a situation. One view is that the action is total nullity upon which no further procedure can follow. The other, less drastic view, is that the sheriff has an inherent power to transfer the action to the correct role, which he may exercise where the defender has suffered no prejudice by the error and the error has been formal rather than substantial or the procedural rule to contravene has been directory rather than mandatory."

 

It was submitted that the appropriate test as regards transfer between roles or dispensations is whether the defender and appellant has or will suffer any prejudice by raising of the action in the "wrong" fashion or by it being subsequently transferred. In this case it was suggested that no prejudice would be suffered. The defenders in fact had benefitted by having one less action raised against them. Both summary application and summary cause procedures had a common bond in that they were both supposed to proceed summarily and expeditiously.

[27] I was further referred to the dicta of Sheriff Principal Caplin in Borthwick v Bank of Scotland 1985 SLT Sh.Ct.49 at 51:-

"The whole position must be viewed in light of modern practice which is generally to relieve a party of the consequences of mere technical irregularity due to accident or inadvertence". As Lord President Dunedin observed in Paxton v Brown..."the whole tenancy of modern times is not to turn an action out of court on a technical plea."

Both under the Ordinary Cause Rules and the Summary Cause Rules the court has wide powers to afford relief in respect of error both in formal pleading requirement and otherwise. Given as the foregoing authorities seem to establish that the sheriff has an inherent power to correct technical irregularity in respect of the role in which a particular case appears this in my view is a case where such power can be reasonably be exercised. I realise of course that procedure in the modern summary cause is more radically different from ordinary cause procedure than was formally the case. However the principle is plain. The sheriff has a discretion to remove a case from a role where it has no right to be, when it can properly proceed on a different role. If such a power exists it can be aptly exercised in a case such as this where there has been a simple former error which has caused the defenders no prejudice. The application has been presented to the sheriff within the time prescribed by statute. The nature of the application and the remedy sought have been made perfectly clear to the defenders. They have been effectively cited to court..."

Although the quotations which I have recorded in this paragraph and paragraph 26 refer to relieving parties of the consequences of a technical irregularity due to accident or inadvertive as opposed to a decision on the part of the pursuers to raise an action in a particular form, it appears to me that the general approach should be the same. The prevailing modern practice is to relieve a party of the consequences of mere technical irregularity.

 

[28] Finally I was referred to Joint Administrators of Prestonpans (Trading) Limited

- Petitioners 213SLT 138 where Lord Malcolm held that the court may permit an action to proceed in limited circumstances even if the action should have proceeded in alternative fashion and on a different role. Lord Malcolm stated at para 12:-

"bearing in mind that incompetency is a matter pars judicis, the implication of the above is that his lordship did not consider that the use of an improper form of process disabled the court from dealing with the substance of the matter...."

He continued at para 16 "In the present circumstances, when no prejudice, inconvenience or unfairness would flow from persisting with the current petition, it would be unfortunate if the petitioners were required to begin again before the same court, albeit in a different form of process, with all the consequential extra expense and delay. Many will be of the view that the court should be the master over forms of process, not vice versa.

 

I respectfully agree with these views, which are applicable to this case.

 

[29] I asked solicitor for the defender and appellant what prejudice his client would suffer if crave 2 was taken as part of the summary application, as opposed to a separate summary cause action. His only substantive reply was that the expenses in a summary cause were somewhat less than the expenses in a summary application. The question of expenses at the end of the day is one for the presiding judge. It would be open to the sheriff to award expenses on the summary cause scale in respect of the procedure under crave 2 if he or she thought that appropriate. However, that has to be balanced against the important point that the expenses of being involved in two separate processes would outweigh the small difference in expenses between the two types of process. All the authorities to which I have referred point to the conclusion that the pursuers should not require to begin again before the same court, albeit in a different form of process, with all the consequential extra expense and delay. I see no fundamental incompetence and indeed many practical benefits, of the procedure which the pursuers have adopted in this case. I am not prepared to take the view that the action in its current form is competent. I comment that it would have been open to the pursuers to move the sheriff, after crave 1 had been dealt with, to remit crave 2 to the summary cause roll. However, I do not consider this to be essential. The exercise of the sheriff's discretion on expenses at the end of the case would relieve any prejudice.

 

[30] I am fortified in my view that crave 2 is competent in this action by a consideration of the current law on noncompliance with statutory provisions. This is set out in the case of Regina v Soneji and Another 2005 3WLR 303 which dealt with approach to time limits. The case considered whether time limits should be considered "mandatory" or "directory". In the speech of Lord Carswell at paragraph 61-68 he said;

"61 The distinction between mandatory and directory provisions, which was much discussed in judicial decisions over many years, has gone out of fashion and has been replaced as Lord Steyn has said, by a different analysis, "directed to ascertaining what the legislature intended should happen if the provision in question was not fully observed..."

I also refer to the provision of Lord Steyn in Project Skye Blue Inc v Australia Broadcasting Authority [1998] 194CLR 355 where Lord Steyn said;

"A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision would be invalid... in determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute."

 

[31] I cannot believe that the purpose that parliament intended that there should be two separate actions in the circumstances which have arisen in this case - a summary application to obtain a warrant in terms of section 24(1) of the 1970 Act and a separate action, that warrant having being obtained, raised as a summary cause to actually recover possession. There is no doubt that in cases for recovery of possession which do not involve an initial procedure of obtaining a warrant under section 24(1), a summary cause would be the appropriate form of action. However, when a warrant has been obtained, it accords with common sense that the second crave for ejecting those who continue to occupy the premises, notwithstanding the existence of the warrant, should be in the same action. All defences available to them under the various statutory provisions would be open to them in the conjoined action. As I have already said, the evidence which the defenders would adduce regarding crave 1in respect of the provisions under sections 24(5) (b) and 7(e) would be duplicated if there was a second action in respect of crave 2.

 

[32] For the reasons I have already given, I consider it was appropriate for the pursuers to call the second and third defenders for their interest in respect for their crave for a warrant in terms of section 24(1) of the 1970 Act. All the parties involved are convened. Parliament surely could not have intended parties to conclude the summary application, deal with payment of expenses in that action, and then require the pursuers to raise a further summary cause action involving the same parties and the same evidence where a whole new further set of expenses would be incurred.

 

[33] I accordingly reach the conclusion that it is competent for the pursuers in this summary application to have a first crave in terms of section 24(1) of the 1970 Act against the debtor who is in default and to call for their interest as the current occupiers the second and third defenders, and thereafter, in this same summary application process to have a second crave for ejection at common law. The question of expenses at the end of the process would be a discretionary one for the sheriff.

 

(3) The Sheriff's refusal of the Appellant's Minute of Amendment which was lodged at the continue debate on 11 January 2013.

 

SUBMISSIONS FOR THE SECOND DEFENDER AND APPELLANT

[34] It was accepted that the matter of whether or not an amendment be allowed was one for the sheriff's discretion. It was only open to the appeal court to intervene on the grounds set out in para 18.111 of Macphail where it is noted that sheriff's decision required to be "completely" "plainly wrong","wholly unwarranted", "manifestly inequitable","unreasonable" or "unjudicial.

 

[35] On the question of amendment I was referred to Macphail Sh.Ct. Practice 3^rd Ed. Para 10.14 as follows:-

"An amendment which is competent may be refused if the sheriff in the exercise of his discretion considers that it is in the interests of justice to do so. It is thought that the general rule may be stated thus. Amendment should be allowed if it is necessary for the purpose of determining in the existing cause the real question in controversy between the parties and if allowance would not result in injustice to the other party not capable of being compensated by a reward of expenses and attachment of any other conditions which seem just. The critical issue is usually whether the opponent of the party seeking leave to amend would be unfairly prejudiced by allowance of the amendment. Among the factors which the sheriff may take into account when determining how to exercise his discretion are the stage which the action has reached and the nature of the amendment. Both these features will often indicate the nature of the prejudice would cause to the other party and inform the conditions which the sheriff might, in his discretion, attach in allowing the amendment."

 

Solicitor for the appellant stated that he would make submissions under two heads

(a)   the stage of proceedings when the amendment was made and

(b)   prejudice.

 

(a)Stage of the proceedings. It was correct to say that the debate on 20 December 2012, which was continued to 11 January 2013 was the fifth diet of debate which had been fixed. However, it was stated that it would be more accurate to describe these "debates" as procedural hearings. The action had been proceeding for a number of months (the initial writ was returned after service on 17 April 2012) - not a number of years. This was the first diet of debate which had proceeded. It was submitted that, while there was no automatic right to allow amendment, it was often the case where, after one party had heard the others submissions, leave to amend was sought to answer these submissions. It was submitted that the Minute of Amendment which was lodged on 11 January 2013 was a very significant document extending to eighteen pages. It was however, submitted that the material therein merely expanded on a number of issues. It was in the interests of justice that the amendment should be allowed.

 

(b)Prejudice. The record had been amended in October 2012 as the first pursuers had sold their interest in the property to the second pursuers. The question of prejudice only arose then as far as the second pursuers were concerned. It was submitted that either the second pursuers obtained the property knowing that it was the subject of contentious litigation, or they had acquired it without that knowledge. In the latter case -which was highly unlikely - prejudice to the second pursuers would come from whatever failure to disclose to them there had been. It was submitted that the sheriff had misdirected herself on the question of prejudice. It was the appellant's position that the sheriff had exercised her discretion unreasonably in refusing the amendment. I should allow it to be received.

 

SUBMISSIONS FOR THE RESPONDENT

 

[36] It was submitted that the sheriff had exercised her discretion reasonably in refusing the Minute of Amendment. It came too late and without adequate explanation. It was submitted that there had been a significant shift in the defence in the amendment presented. Solicitor for the respondent replied to the two points raised as follows:-

(a)        Stage of Process - It had been suggested that this was not really the fifth diet of debate. However, the fact of the matter is that the previous four diets were diets of debate and he had attended in a position to proceed on each occasion. This was a mature process. The facts of this case were straight forward. The appellant had been given ample time to prepare his defence.

(b)        Prejudice - It had been suggested that the second pursuers knew the position regarding the ongoing litigation. Solicitor for the pursuers confirmed that that was the case. However, at the time missives were concluded for the purchase of the property in October 2012, the pleadings in the case for the defenders were unsustainable. This was eventually conceded by the second and third defenders in court on 11 January 2013. As far as the second pursuers were concerned when they purchased the property, the debate was one they were going to win. Issues of prejudice which arose from further delay - this was a piece of land which they were hoping to develop and the defender was legally aided and any costs were unlikely to be recovered. The action had been brought into court in April 2012, and as at January 2013 it was conceded that the defence pled was without foundation. There was clear prejudice to the pursuers.

 

[37] Solicitor for the respondents referred to the sheriff's review of the submissions made on the minute of amendment in paragraph 7 to 9 of her report. He adopted the sheriff's reasoning with the following expansions:-

1. Having previously declined to permit a single sentence of amendment on the grounds that it came too late in proceedings and sought to introduce new matters, it was entirely reasonable of the learned sheriff to decline to exercise her discretion in regards to an eighteen page minute of amendment which

(i)          Would have rendered wasted the previous day of debate.

(ii)        Would have rendered wasted most procedure since the second and third defenders and appellants concluded their adjustments on 17 May 2012.

(iii)       Abandoned the current defence.

(iv)       Introduced a whole new defence, on a whole new set of fact, supporting an entirely different purported lease (no longer a written lease but an oral lease with written communings on rent) and further

(v)        Contradicted a number of factual averments in the existing pleadings (such as what rent had been paid and the rates of payment at different times).

 

2. There was no reason why such averments could not have been made at an earlier stage. They related to a purported lease that the defenders and appellants say had existed for almost two decades. Similarly, there was no reason for the defenders and appellants to be ignorant of the criticisms made to their existing pleadings. They had the pursuers and respondents note of arguments since May 2012

 

3. The proposed minute of amendment was significant and would have required a prolonged period of investigation and answer. It was still likely that the matter would return to debate. There were new irrelevancies and lack of specification in the Minute of Amendment, including inter alia:-

·   Reference to a letter of 23 August 2004 which was not lodged (bottom of page 3) as well as many new but inspecific references to dealings with Mr Wightman the former director of the first defenders. No averments were made in regard to specific communings with the first defender which company had been infeft proprietor since 1999.

·   Reference to dealings with and payments to "Highlees Farm Co" throughout a period where the defenders and appellants seemed to accept that the said entity was not the infeft proprietor, with no explanation as to why "rent" would be paid to someone other than the landlord (second full paragraph on page 4). There were no averments to the current status of that alleged partnership, despite averring three partners and accepting one - a company - was now dissolved (bottom of page 2 to top of page 3).

·   A bold assertion that the purported lease should be construed as "a lease of one year's duration" with no supporting averment as to why it should be that duration over any other. Given the issues of formality of writing in regards to leases differ depending upon duration, such an issue of duration is of paramount importance (top of page 5).

·   An assertion that the 4.7 hectares of land occupied was merely a house and "a garden of pleasure ground" (relevant for the consideration as to whether more than 2 acres was agricultural - as the pursuers and respondents submit - and thus whether the subjects are excluded from being considered for an assured tenancy) (penultimate paragraph of page 6).

·   A new esto argument that the subject should be considered as "an agricultural holding" (top of page 10).

·   A "reasonableness" defence relating to the third defender and the appellant's ill health (bottom of page 10) though no plea in law supporting such an averment.

 

It was submitted in the circumstances the sheriff correctly refused to allow the reception of such a flawed document so late in the proceedings. It was further pointed out that the amendment sought by the defenders and appellants was further in the context that the parties had only recently concluded an 8 week amendment process in which the defenders and appellants (despite having opposed the motion to amend so as to seek a significant time for answers and adjustment) did not answer at all.

 

[38] It was submitted that the sheriff had correctly applied the test in regards to considering such late amendment. Macphail narrates at paragraph 10.14 that a competent amendment "may be refused if the sheriff in exercise of his discretion considers it is in the interests of justice to do so," such as whether the non-amending party would be "unfairly prejudiced", "the stage which the action has reached", and "the nature of the amendment." The sheriff was further required to consider whether any injustice to the other party was capable of being compensated by an award of expenses. It was submitted that the sheriff correctly refused the amendment in consideration of the stage reached being a mature stage, and the nature of the amendment being a significant departure from the previous averments and arguments. It was suggested that expenses would not compensate for the delay occasioned by this amendment. The defenders and appellants were legally aided and clearly in penury. They were unable to make payment of expenses to the pursuers and respondents. The pursuers and respondents were developers and the second defender and appellant's continued presence in the subjects would halt their ability to progress the housing development planned for the subjects. The delay could not be compensated by an award of expenses which in any event would not be recoverable. The amendment was not necessary to determine the real controversy between the parties in that it sought to introduce an entirely new controversy, namely that this is an oral lease rather than a written lease previously argued.

 

DECISION

 

[39] In my opinion the submissions on behalf of the pursuers and respondents are well founded. I am not prepared to interfere with the sheriff's exercise of her discretion. There was clearly material before her to entitle her to take that view. The action so far as laid against the second defender is in essence an action of removing. It came into court for the first time on 17 April 2012. The second defender effectively rewrites his case in the 18 page minute of amendment presented at the continued debate on 11 January 2013. This is not an appropriate way to proceed in an action for the recovery of heritable property. I conclude that the sheriff was entitled to take the view that the amendment came too late and that it was not in the interests of justice that it should be allowed. It is clear, for the reasons given by the pursuers, that they would suffer prejudice if the minute of amendment was allowed.

 

CONCLUSION

 

[40] In the event I consider the sheriff erred in refusing to consider the question of the competency of crave 2 when it was raised with her. A sheriff should not pronounce an interlocutor in an action where issues of its competency have not been resolved. The sheriff can notice the incompetency, or it can be brought to the sheriff's attention by parties. In this case it was brought to the sheriff's attention by the appellants. In my opinion, the sheriff was obliged to deal with it. I take the view that, the issue of competency having been raised, it is appropriate that I should deal with it at this stage rather than remit the cause to the sheriff to decide on the question of competency. I have set out in some detail in this note my reasons for reaching the conclusion that crave 2 is competent in this action.

 

[41] However, I consider that the sheriff, in the exercise of her discretion, was entitled to refuse to receive the 18 page minute of amendment which was presented on behalf of the appellant on the second day of the fifth diet of debate on 11 January 2013 for the reasons I have set out in para 39 hereof.

 

[42] Although the pursuers and appellants have succeeded in having the question of competency ventilated before me, they have not succeeded in their submission that the action is incompetent. They have failed to persuade me that the sheriff exercised her discretion unreasonably for refusing to allow the minute of amendment to be received. In these circumstances I take the view that the appellants have failed in this appeal and I have awarded expenses of the appeal to the pursuers and respondents.