Scottish Sheriff Court Decisions

Glasgow 03 December 2009 Sheriff Principal Taylor

Act: Mrs Browne for the pursuers and respondents

Alt: Mr Thomson for the defender and appellant

The sheriff principal, having heard parties' procurators in the appeal, Answers question one in the stated case in the affirmative and Answers part one of question two in the stated case in the negative; Allows the appeal; Assigns 19 February 2010 at 10.00 am within the Sheriff Court House, Glasgow as a diet of proof; ex proprio motu Finds no expenses due to or by either party in the appeal; Remits the cause to the sheriff to proceed as accords.

Sheriff Principal

NOTE:-

[1] This is an action by a social landlord against one of its tenants for recovery of possession of the tenanted subjects and for payment of arrears of rent. It has had a most chequered history. It first called on 27 November 2007. A diet of proof was assigned for 22 February 2008. When the case called on 22 February 2008 the defender and appellant (hereinafter "the defender") moved the court to discharge the diet to allow further time for preparation and for an investigation of the defender's position regarding housing benefit. The pursuers opposed the application. It was granted. A further diet of proof was assigned for 24 April 2008. When the case called on 24 April 2008 for proof, the defender again applied to have the proof discharged. The pursuer again opposed the application. The court granted the application to allow further time for housing benefit investigations to be carried out. A third diet of proof was assigned for 8 August 2008. Again the defender sought a discharge. This time it was refused. Parties elected not to lead evidence and proceeded to make submissions to the court. Decree in favour of the pursuers was granted. The defender appealed that decision to me. I allowed the appeal for the reasons set out in the Note to my interlocutor of 22 January 2009 and remitted the case back to the sheriff for proof. In short, it was accepted that the sheriff had not applied his mind to all the factors set out in Section 16(3) of the Housing (Scotland) Act 2007 (hereinafter "the Act"). The case again called for proof on 30 March 2009 when the parties on joint application asked the court to make an order in terms of Section 16(1) of the Act in terms of which the defender would pay a specified sum to the pursuer each month. The case called again on 25 June 2009 for proof. There was no appearance on behalf of the defender although he was represented. The defender's agent made an oral application to have the diet adjourned. Upon this being refused he resigned the defender's agency. A peremptory diet was then assigned for 21 July 2009. At the peremptory diet the defender was present. At the bar of the court the pursuers made an incidental application for summary decree. The application was granted. The defender again appealed to me.

[2] In the stated case the first question posed was whether the sheriff had addressed the correct criteria when determining the question of reasonableness in terms of Section 16(3) of the Act. I came to the view without any hesitation that the sheriff had properly addressed the question of reasonableness and in that respect her judgment could not be impugned.

[3] The second question in the stated case was in two parts. The second part asked whether it was competent to grant summary decree where a proof had already been allowed upon the stated defence but the proof had been discharged. I had little hesitation in coming to the view that it was competent to grant summary decree in such circumstances.

Rule 12.2.(1) is in the following terms:-

"A pursuer may at any time after a defender has lodged a form of response apply by incidental application for summary decree against any defender on the ground that there is no defence to the action or any part of it."

On a plain reading of the rules it is open to a pursuer to apply for summary decree "at any time after" a form of response has been lodged. It is unqualified. The fact that a proof has been allowed should not in my opinion detract from the wide terms of the rule. If a pursuer, after a defence has been stated and a proof allowed, comes to the view that the defence cannot succeed, he is not precluded from making application for summary decree.

[4] The first part of the second question posed was, "Was it competent to grant summary decree at a peremptory diet?" In my view that is not perhaps the most happily framed question. Given what I have said in the previous paragraph, the fact that application for summary decree is made at a peremptory diet does not in itself render the application incompetent, providing the rules have been complied with. Rule 12.2.(3) is in the following terms:-

"The pursuer shall intimate an application under paragraph (1) (that is an application for summary decree) by registered or recorded delivery post to every other party not less than seven days before the date fixed for the hearing of the application."

That rule is quite clear. Any application for summary decree in a summary cause requires at least seven days notice to be given to the defender and has to be intimated by registered or recorded delivery post. In this case the application was made at the bar. There was no intimation by recorded delivery post and there was no notice given to the defender. Mrs Browne for the pursuers relied upon the terms of the intimation made to the defender of the peremptory diet. The interlocutor of the court served upon the defender narrated inter alia the following:-

"Ordains the defender to appear or be represented at the heritable roll on 21 July 2009 at 10.00 am within the Sheriff Courthouse, 1 Carlton Place, Glasgow to state whether or not he intends to proceed, under certification that (sic) he is not present to (sic) represented thereat decree may be granted against him."

[5] In my opinion such a notice falls well short of the notice required in terms of Rule 12.2.(3). It is capable of being interpreted by a defender that if he is present or represented then decree will not be granted against him. Since the defender had been present and represented at the peremptory diet he had answered the interlocutor and would be entitled to believe that decree would not be granted against him. Therefore, with considerable regret but no hesitation, I felt compelled to once more allow the defender's appeal, assign yet another proof and remit the case to the sheriff to proceed as accords. In relation to the question posed in the stated case, while it is in my opinion competent to grant summary decree at a peremptory diet it was not competent at the peremptory diet in this case as due notice had not been given in terms of the rules.

[6] There was no motion for expenses and accordingly I found no expenses due to or by either party in the appeal.