Scottish Sheriff Court Decisions

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

 

SD1463/09

JUDGEMENT

of

SHERIFF PRINCIPAL C A L SCOTT, QC

in the cause

South Lanarkshire Council

Pursuers

against

 

Ellen McKenna

Defender

                                                                        

 

 

 

Glasgow, 29 November 2013.

 

The sheriff principal, having resumed consideration of the appeal, Refuses same; Answers the questions posed by the sheriff in the stated case in the negative; Adheres to the interlocutors of the sheriff dated 22 April and 5 November 2010; Finds the defender liable to the pursuers in the expenses of the appeal procedure; Allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and to report thereon.

 

 

 

 

 

NOTE:-

 

[1] This appeal arises from two distinct decisions taken by the sheriff in the context of a summary cause action for recovery of possession of a house let on a short Scottish secure tenancy under sections 34 to 37 of the Housing (Scotland) Act 2001. In advance of the appeal hearing, both sides had prepared extensive and detailed written submissions.

 

Appeal - Part 1

Defender's submissions

[2] Counsel for the defender initially directed his arguments towards the manner in which the sheriff had dealt with the term of the lease and the notice to quit issued by the pursuers under his decision of 22 April 2010. Utilising his written submission as an aide memoire, counsel for the defender drew the court's attention to the relevant statutory provisions within the 2001 Act. He stressed that section 36 of the Act regarding recovery of possession was the critical provision. In that regard, the position of the pursuers was to the effect that the provisions of section 36 had been fulfilled and that, accordingly, they were entitled to decree without reference to any issues such as reasonableness or proportionality.

 

[3] Counsel for the defender dealt with the provisions of section 36(5). That subsection compelled the court to make an order for recovery of possession where certain conditions had been met. The line of defence before the sheriff was that the pursuers ought not to be entitled to decree since the court could not be satisfied that tacit relocation was not operating (section 36(5)(b)). It had been submitted that the operative date set out within the notice to quit served by the pursuers was not an "ish date" of the tenancy.

 

[4] Counsel for the defender took up this aspect of his submission in greater detail under reference to page 6 of his written submission. It was to be noted that the sheriff had been called upon to consider an argument on behalf of the defender that the notice to quit served by the pursuers on 13 July 2009 had been invalid because it bore to take effect on a date that was not an ish of the tenancy. It was further argued that if the notice to quit was invalid, tacit relocation continued to operate. That being so, the requirement contained in section 36(5)(b) was not met and, accordingly, decree for eviction could not be granted under section 36.

 

[5] The sheriff had recorded that certain matters were not in dispute as between the parties. Firstly, it was accepted that to be valid a notice to quit had to take effect on an ish date and that there was no room for equitable considerations in relation to that requirement - precision was required. Instead, the parties had joined issue, before the sheriff, on the question of whether the date upon which the notice to quit bore to take effect, viz. 5 September 2009, was an ish of the tenancy.

 

[6] In terms of the 2001 Act, it was pointed out on behalf of the defender that there were two ways in which a short Scottish secure tenancy (hereinafter referred to as a "short SST") could come into existence. A short SST might be created in terms of section 34 of the Act or an existing Scottish secure tenancy (hereinafter referred to as an "SST") might be converted to a short SST by way of section 35 of the Act.

 

[7] Inter alia, section 34(1) provides that:

 

"(1) A tenancy of a house is a short Scottish secure tenancy if -

(b) it is for a term of not less than 6 months..."

 

In arriving at the date specified within the notice to quit, the pursuers had utilised that period for the purposes of calculating the ish. However, the main argument presented by counsel for the defender was that they had been wrong to do so. The defender's original SST had become a short SST by virtue of section 35(1). Whilst it was stressed that no issue was taken quoad the conversion procedure per se, counsel for the defender sought to characterise sections 34 and 35 as being of separate effect particularly in regard to the term of the resultant tenancy in each case. He maintained that the six month minimum provision found within section 34(1) could not be applied to a conversion under section 35 and that the term which pertained to the defender's SST prior to conversion persisted when it came to the defender's short SST following conversion.

 

[8] The original term or duration in the present case was 2 weeks and counsel submitted that that sort of period ought to have been applied when it came to the notice to quit rather than the 6 month period. Whereas in terms of section 64(4)(c) a landlord required to serve a notice specifying the term of the tenancy for a "new" short SST, the provisions of section 35 were, argued counsel, silent when it came to any obligation upon a landlord to inform the tenant as to what would be the post-conversion term of the lease. Counsel contended that the absence of such a provision supported his argument to the effect that, under section 35, the existing term of the lease prevailed and was not supplanted by the 6 month period referred to in section 34.

 

[9] In further support of the defender's position, counsel maintained that the provision relating to a term of not less than 6 months in section 34(1)(b) could not be applicable to short SSTs brought into existence by operation of section 35 where the two counterparts of that provision, viz. section 34(1)(a) and (c) could not be deemed applicable. Counsel also submitted that section 35(4) which states that: "Subsections (5) and (6) of section 34 apply to a tenancy which becomes a short Scottish secure tenancy by virtue of this section." was of significance in that, whatever else, it made no reference to section 34(1). Counsel suggested that the specific reference to subsections (5) and (6) of section 34 amounted to a deliberate exclusion of reference to section 34(1) on the part of the draughtsman.

 

[10] There was also an additional consideration, according to counsel, when it came to the precise date for expiry of the tenancy since, even if the pursuers had correctly utilised the term of not less than 6 months in framing the notice to quit, that, in itself, did not provide a satisfactory answer to the problem. The formulation "not less than 6 months" did not create a specific date upon which the tenancy was to come to an end. Whilst the pursuers had actually served a notice upon the defender specifying that the converted short SST endured until 5 September 2009, counsel for the defender criticised the provenance of any such specific date. He submitted that it was not open to a landlord to proceed with what he described as the unilateral imposition of a term date. There had been no consensus as to when that date was to be and that, in itself, undermined the validity of the notice to quit.

 

[11] Therefore, in summary, the defender in this part of the appeal challenged whether the statutory conversion to a short SST under section 35 of the 2001 Act had altered the term of the lease. On the hypothesis that it had not, it was argued that the notice to quit had been inept. Counsel for the defender also highlighted what he contended had been an ambivalent approach on the part of the pursuers to whether it was the statutory conversion which, according to them, altered the term or whether, in this particular case at least, the term of the defender's lease had been altered by the notice issued by the pursuers.

 

[12] At page 10 in his written submission, counsel for the defender also criticised the sheriff's reference to section 34(7). The sheriff had recorded that the intention of these provisions was to provide a period of support for a tenant with the proviso that the landlord might recover possession of the property upon the expiry of not less than 6 months after the conversion of the tenancy to a short SST. The sheriff took the view that such a period, viz. 6 months, enabled a landlord to put in place support services for a certain albeit limited time. Counsel for the defender's basic proposition was that there was no proper foundation to the link drawn by the sheriff between section 34(7) and the 6 month period. The subsection itself was entirely silent regarding that period.

 

Appeal - Part 1

Pursuers' submissions

[13] Counsel for the pursuers invited the court to refuse the appeal when it came to the alleged ineptitude of the notice to quit and to adhere to the earlier of the sheriff's interlocutors. It was submitted that the ish had been set by the act of conversion to a short SST. Under reference to his written submissions, counsel for the pursuers maintained that on a proper construction of sections 34 and 35 of the 2001 Act, all short SSTs were to be treated consistently as being subject to the minimum term of 6 months.

 

[14] It was argued that under both sections, the statute plainly intended that the stipulated period of 6 months should act as a form of balance or compensation for the ensuing lack of security of tenure affecting a short SST tenant. Counsel submitted that it was not intended that a converted short SST could be for less than 6 months when a short SST originally created as such could not. It would amount to discrimination against converted short SST tenants in that they would be denied the benefit of what counsel described as the 6 month rule. It was contended that, as a consequence of the foregoing, the notice to quit was, indeed, properly served on the defender in 2009.

 

[15] However, counsel for the pursuers also advanced a subsidiary argument. He submitted that even if the pursuers were wrong about the statutory interpretation point and a section 35 conversion did not affect the term of the lease then, nevertheless, in the present case, having been notified that she was to be the subject of a lease enduring for 6 months, the defender was affected by the operation of personal bar. A converted short SST having come into being for a period of 6 months, the pursuers themselves could not then have retracted upon the statutory arrangement.

 

[16] Moreover, counsel pointed to section 35(5) of the 2001 Act which was in the following terms:

 

"Where a Scottish secure tenancy becomes a short Scottish secure tenancy by virtue of this section, a tenant who is aggrieved by the conversion may raise proceedings by summary application."

 

Counsel submitted that the notice served upon the defender had been declaratory of the statutory effect of the legislation. The specific procedure laid down to challenge the conversion to a short SST had not been adopted by the defender. Accordingly, under the general principles of consistency, legitimate expectation and fairness to the defender herself, the pursuers were under an obligation to proceed upon the basis of the ish stated within the statutory notice, viz. 5 September 2009.

 

 

Decision regarding sheriff's interlocutor dated 22 April 2010

[17] In my view, the submissions of counsel for the pursuers are to be preferred. Section 35(1) is clear in its terms, viz. "A Scottish secure tenancy of a house becomes a short Scottish secure tenancy by virtue of this section immediately on the landlord serving on the tenant a notice under subsection (3)". It provides for immediate statutory conversion from SST to short SST. Accordingly, it seems to me that counsel for the defender's submissions criticising a lack of consensus as between landlord and tenant regarding the ish are misguided. In the context of a converted short SST, contractual negotiation, particularly regarding the term of the tenancy does not come into play.

 

[18] Similarly, in my opinion, the fact that section 34(1)(a) and (c) do not have application in respect of short SSTs brought into existence by operation of section 35 does not avail the defender. The interpretation section of the Act, section 111, is very clear; "short Scottish secure tenancy" is to be construed in accordance with section 34. Counsel for the defender took no issue with the terms of section 35(4) which states that "Subsections (5) and (6) of section 34 apply to a tenancy which becomes a short Scottish secure tenancy by virtue of this section."

 

[19] It will be seen that section 34(5) is in the following terms:

 

"At the ish of the tenancy it may continue -

(a) by tacit relocation, or

(b) by express agreement, and the continued tenancy is a short Scottish secure tenancy despite subsection (1) not being satisfied."

 

Section 34(5) makes specific reference to the ish of the tenancy. A short SST must be for a term of not less than 6 months. As observed supra, section 34(5) applies to a tenancy which becomes a short SST by virtue of section 35 (ie a converted short SST). Accordingly, in my view, it is beyond doubt that, on a proper reading of the statutory provisions, the conversion under section 35 did, indeed, alter the term of the defender's lease. Contrary to the submission of counsel for the defender, post-conversion, the term of the lease could not and did not continue to be based upon a 2 week rolling arrangement.

 

[20] I was particularly struck by the prima facie contradiction inherent in any short SST tenant arguing that the consequential lack of security of tenure should be compounded by the tenant being deprived of a term statutorily guaranteed to endure for a minimum of 6 months. I have concluded that counsel for the defender's submission in this regard was contrived to suit his client's purposes in avoiding eviction rather than accurately representing the clear thrust of the statutory provisions. As counsel for the pursuers submitted, it would be patently prejudicial to treat section 34 short SST tenants differently from those whose tenancies happened to have been the subject of conversion under section 35. The submissions advanced on behalf of the defender provided no explanation for such deferential treatment. I am satisfied that no such explanation could be found and that both the intent and effect of the legislation is to create a tenancy (a short SST) which endures for a period of not less than 6 months whether such tenancy arises by virtue of section 34 or section 35 of the 2001 Act.

 

[21] Moreover, contrary to the submission of counsel for the defender, I detect no illegitimacy when it comes to the notice served on the defender under section 35(3). Counsel criticised what he characterised as the unilateral imposition of a 6 month term on the part of the pursuers, viz. from 5 March 2009 to 5 September 2009. The term specified complied with the 2001 Act provisions. It would have been otherwise had a lesser term of, say, 3 months been specified. In specifying the 6 month period, the pursuers were, in my view, merely applying the letter of the law. Once again, there was no scope for bilateral agreement provided the term did not undercut the 6 month period specified in section 34(1)(b) of the Act.

 

[22] In any event, counsel for the pursuers' subsidiary argument is also well founded. Had the defender been truly aggrieved by the conversion of her existing tenancy to a short SST with a minimum term of 6 months, it was specifically open to her to mount a challenge by way of summary application. (Section 35(5) refers). She did not do so. I consider that a challenge to the period of ish at this stage in the context of eviction proceedings should not be entertained by the court, the defender having already declined the statutory vehicle of challenge open to her under the 2001 Act.

 

Appeal - Part 2

Defender's submissions

[23] The second part of the defender's argument on appeal is introduced at page 16 in her counsel's written submission, having been summarised in grounds 7 and 8 within the note of appeal. Reference also requires to be made to question in law number 4 for the defender which was the subject of an incidental application allowed on 28 March 2013. This part of the defender's argument concerns a proportionality challenge under article 8 of the Convention.

 

[24] In the course of the appeal hearing, extensive reference was made by both counsel to the cases of Pinnock and of Powell. Both these cases had been considered and determined by the Supreme Court following upon the debate giving rise to the sheriff's decision of 5 November. In Pinnock, the Supreme Court reaffirmed that:

 

"Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end." (Paragraph 45).

 

Whilst Pinnock concerned a claim for possession brought against a demoted tenant under Chapter 1A of Part IV of the Housing Act 1996, in Powell, Lord Hope of Craighead DPSC confirmed that the abovementioned proposition applied to all cases where a local authority seeks possession in respect of a property that constitutes a person's home for the purposes of article 8. (See Powell at paragraph 3).

 

[25] Accordingly, for the purposes of this appeal, the defender's right, in principle, to raise the question of proportionality was not the subject of any controversy. Indeed, counsel for the pursuers stressed that, for their part, there never had been any dispute in the current proceedings about whether, in principle, a defence of disproportionality based on article 8 could be a relevant defence to the action.

 

[26] Counsel for the defender addressed the proportionality review in probationary tenancy cases at pages 20 to 23 in his written submission. Under reference to a passage in Lord Phillips' opinion in Powell, counsel submitted that special considerations ought to apply to tenancies which were "probationary in nature". It was submitted that such considerations were equally applicable to short SSTs under the Housing (Scotland) Act 2001 which were subject to the possibility of conversion under section 37 of that Act. Counsel's argument proceeded on the basis that those tenancies were also "probationary" in nature and were, therefore, analogous to the English concept of introductory tenancies. It was also maintained that the provisions of section 34(7) of the 2001 Act regarding the provision of support with a view to enabling conversion (under section 37) to take place, were a matter of significance for the application of any proportionality test.

 

[27] It was further contended on behalf of the defender that the decisions in Pinnock and Powell and that of the Extra Division in the present proceedings empowered the argument that the pursuers' decision to initiate eviction proceedings failed the proportionality test. Counsel for the defender submitted that the pursuers required to demonstrate that the termination of the tenancy was, in one way or another, founded upon the proposition that the defender had proved unsatisfactory; that she had failed in her probation. Counsel founded upon the absence of any such indication.

 

[28] Returning to section 34(7) and section 37 of the 2001 Act, counsel for the defender criticised the pursuers' failure to provide support. That, he submitted, was the sort of alternative measure which might have been adopted and by which the relevant legitimate end of the pursuers could have been achieved. It would have involved less severe interference in or restriction of the defender's right to respect for her home. In conclusion, counsel for the defender submitted, with reference to grounds 7 and 8 of the note of appeal and question in law number 4, that eviction of the defender would be contrary to article 8 of the Convention, that decree could not be granted under section 36 of the 2001 Act and that, therefore, the appeal should be allowed and the action dismissed.

 

Appeal - Part 2

Pursuers' submissions

[29] In reply, counsel for the pursuers founded upon the high threshold for a plea of disproportionality and quoted various passages from the decision in Pinnock. He also highlighted Lord Hope's observations in Powell at paragraph 35 onwards, together with Lord Phillips' remarks at paragraph 94.

 

[30] In his written submission at paragraph 47, counsel for the pursuers set out the legal criteria which he maintained were necessary for the defence of disproportionality. He distinguished the defender's use of the concept of "necessity" within ground of appeal number 8. It was not, counsel argued, a question of judging whether removal from the tenancy was "necessary", nor a matter of requiring the pursuers to prove that such removal was necessary. Any challenge directed towards the proportionality of the pursuers' conduct required to be mounted in accordance with the well-established elements of that concept.

 

[31] Counsel for the pursuers stressed the restricted nature of the defender's objections to the proportionality of her removal from the tenancy. He characterised them as no more than abstract statements of general principle. It was, counsel submitted, wholly illegitimate for the defender to seek to shift the burden onto the pursuers. The onus lay with the defender when it came to identifying and explaining why her personal circumstances made her a special case. Moreover, it was submitted that the defender's line of argument sought to imply into sections 34 to 37 of the 2001 Act, a requirement or prerequisite for proof of anti-social behaviour which plainly was not to be found within those statutory provisions. In the context of the reference to the Inner House of the Court of Session, no invitation had been advanced to the court regarding the need for any such requirement were the provisions to be compatible with article 8. Further references to various observations in Powell followed.

 

[32] In distinguishing between an SST and a short SST, counsel submitted that in relation to a short SST, the legislative intent was that to recover possession, the landlord did not require to prove anything about either the behaviour of the tenant or the proposed management of the property. In contrast to an SST, reasonableness was not a consideration quoad a short SST when it came to the passing of decree. Moreover, counsel for the pursuers submitted that the fact that short SSTs can be used in practice to place an unsatisfactory tenant "on probation", did not entail a statutory right to security of tenure absent proof of further anti-social behaviour. Counsel then moved on to deal with the application of the criteria for establishing disproportionality, the mitigation of any prejudice to the defender as a consequence of the passage of time and summary disposal in the context of disproportionality. His arguments in respect of those themes are to be found at paragraphs 92 to 114 within his written submission. I simply refer to those arguments for their terms.

 

Discussion

[33] At the heart of the opinion of Lord Hope in Powell lies the following passage:

 

"So, as was made clear in Pinnock, para 53, there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre-requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock. The court need be concerned only with the occupier's personal circumstances and any factual objections she may raise and (in the light only of what view it takes of them) with the question whether making the order for possession would be lawful and proportionate." (See Powell at para 37).

 

[34] Similarly, in the opinion of Lord Phillips, who agreed with Lord Hope's analysis, certain salient features emerge. The local authority is not required to advance a positive case to the effect that an order for possession will accord with the requirements of article 8.2; it will be presumed that the local authority is seeking possession in order to further the performance of its housing duties unless the tenant raises a challenge; it will only be "in very highly exceptional cases" that it will be appropriate for the court to consider a proportionality argument; and the threshold that the local authority has to cross is relatively low.

 

[35] At paragraph 33 in Powell, Lord Hope noted that, when it came to the form and content of any proportionality review, the "basic rules" were not now in doubt. "The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable." Therefore, I agree with counsel for the pursuers' submission to the effect that a plea of disproportionality is not entitled to consideration unless averred in terms which show that it is "seriously arguable".

 

[36] With regard to ground of appeal 7, I also agree with counsel for the pursuers' submission that the issue is not whether the defence of disproportionality is available. The key question, as counsel argued, is whether anything has been said on the defender's behalf such as would relevantly invoke the principle. In relation to proportionality, the supplementary note of defence is, at best, wholly unspecific. Indeed, counsel for the pursuers' characterisation of the defender's averments as amounting to no more than abstract statements of general principle is, indeed, correct. Therefore, in my opinion, the defender, in the race to consideration of a proportionality argument, has fallen well before the first hurdle. Beyond consideration of the abstract, there is nothing in her case which is capable of being seriously argued. Counsel for the pursuers described this as the "central demerit of the defences". I agree with that assessment.

 

[37] That, in itself, is sufficient to dispose of this part of the appeal. However, I require to express a view on other aspects of the arguments put forward by counsel for the defender.

 

[38] At paragraph 41 in Powell, Lord Hope referred to "a statutory regime that has been deliberately designed by parliament for sound reasons of social policy, so as not to provide the occupier with a secure tenancy..." The statutory regime under the Housing (Scotland) Act 2001, inter alia, serves to remove the security of tenure associated with an SST. The thrust of the argument put forward by counsel for the defender was that short SSTs were "probationary" in nature and were, accordingly, analogous to introductory tenancies in England, which were, of course, the subject of consideration in the Pinnock and Powell cases.

 

[39] I am not satisfied that short SSTs under the 2001 Act are truly analogous to the English concept of introductory tenancies. However, in any event, on the hypothesis that they may be, I do not consider that counsel for the defender's reliance upon Lord Phillips' remarks in Powell (paragraphs 89-94) truly serves his purpose. Firstly, Lord Phillips was very clear in stating (at paragraph 92) that "...the judge should summarily dismiss any attempt to raise a proportionality argument unless the defendant can show that he has substantial grounds for advancing this." In the present case, the defender has shown no such substantial grounds.

 

[40] Secondly, Lord Phillips was of the view that "...if a tenancy has given rise to complaints by neighbours of anti-social behaviour the authority does not need to be in a position to prove that these are well founded in order to justify terminating the tenancy." That, to my mind, goes some way towards undermining any argument to the effect that for a short SST to be terminated, the local authority would require to substantiate that the tenant had "breached his probation".

 

[41] However, in my opinion, the overriding legislative intent of the 2001 Act provisions is that to recover possession of a short SST the landlord is not obliged to establish any particular feature about the behaviour of the tenant or the management of the property. To place such an obligation upon the landlord would, in my view, "...imply a degree of protection back into the statute..." The Supreme Court in Pinnock held that any such implication would be wrong unless it were necessary, for example, because the Convention required it.

 

[42] A fundamental contention of the defender's case was that where a housing authority did not positively prove, for instance, anti-social behaviour during the currency of a short SST, then any eviction proceedings must fail the proportionality test. Inherent in that argument lies the proposition that an unexceptional tenant (under a short SST) is to be afforded an automatic right to reconversion to an SST. There is no provision for such an eventuality within the 2001 Act. Had it been the legislature's intent to insert such a provision it could have been achieved by explicit and straightforward statutory language.

 

[43] Counsel for the pursuers submitted that merely because short SSTs might be used in practice to place an unsatisfactory tenant "on probation", that possibility did not carry with it a statutory right to security of tenure absent judicial proof of any further anti-social behaviour. In my opinion, that submission must be regarded as sound. Were it not so, the statutory integrity of a short SST would be diluted with its very purpose and effect being called into question. In any event, counsel for the pursuers rightly observed that, the case having previously been referred to the Inner House (see [2012] CS1H 78), the defender ought to have taken that opportunity to secure the court's guidance on this very issue. After all, the Inner House had specifically considered what duty, if any, exists upon a public authority to give reasons for seeking possession of houses held under short SSTs. It appears that no attempt was made by the defender's advisors to persuade the court that proof of further anti-social behaviour was a prerequisite when it came to termination of a short SST.

 

[44] Returning to the grounds of appeal and, in particular, ground of appeal 8, it is my view that the terms of section 34(7) of the 2001 Act are of no consequence for the purposes of the appeal. That subsection creates an obligation upon the landlord in relation to the provision of housing support services but only in so far as the landlord "considers appropriate". On the hypothesis that no support services were invoked in the defender's case, it does not, in my opinion, follow that "...the pursuers' need to address anti-social behaviour at the defender's tenancy has been met by conversion itself, without the necessity of eviction." (Ground of appeal 8 refers). I should also mention what I perceive to be an overall inconsistency when it comes to the defender's arguments. In part 1 of this appeal, inter alia, counsel for the defender argued that the six month period following upon conversion to a short SST under section 35 of the Act could not prevail. However, it seems to me that for the purpose of counsel's argument quoad the lack of housing support services under section 34(7) the application of the minimum term of six months would be tantamount to essential. Therefore, once again, it is difficult to resist the impression that the proportionality argument for the defender is itself nothing more than a contrivance designed to avoid eviction.

 

[45] Of course, counsel for the pursuers founded upon the period of time during which the defender has succeeded in remaining in occupation of the property. He advanced submissions directed towards the mitigation of any prejudice to the defender owing to the passage of time. I have also found favour with those submissions as they appear between paragraphs 103 and 111 in counsel's written note of argument.

 

[46] Accordingly, I agree with counsel for the pursuers' contention that part 2 of the appeal ought to be refused and that for all of the foregoing reasons. For the avoidance of doubt, as I understood counsel for the defender's submissions, no discrete argument was advanced in support of ground of appeal 9.

 

Appeal - Part 3

[47] This part of the appeal proceeded upon the introduction of a new question in law number 5 in the following terms:

 

"...given that the respondents failed to inform the appellant, in advance of raising these proceedings, of their reasons for seeking her eviction, should the action have been dismissed?"

 

That question had not been raised before the sheriff. However, counsel for the defender conceded that should the court find favour with the pursuers' arguments anent part 2 of the appeal then part 3 of the appeal was, as he put it, "of no separate significance". It follows, therefore, that this part of the appeal also fails. In any event, I was persuaded by counsel for the pursuers that there were no considerations arising from question in law number 5 such as would impact upon the validity of the eviction process in this case. As counsel for the pursuers pointed out, the section 36 notice had been served. That was all that was required. Counsel for the pursuers submitted that it was "as plain as plain could be" that the Inner House (in the context of the reference to it) had pronounced that there was no obligation upon a landlord to give reasons beyond the terms of the statutory notice in question. Counsel for the pursuers argued that it was the Inner House's job to interpret the case of Powell and that it had handed down its interpretation. That was an end of the matter. I agree with the submissions advanced by counsel for the pursuers.

 

[48] The defender has failed in this appeal. I have, therefore, found her liable in the expenses.