SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

SD650/10

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in causa
	NORTH LANARKSHIRE COUNCIL
	Pursuers and Respondents
	against
	MRS LORRAINE CAIRNS
	Defender
	and
	JASON CAIRNS
	Minuter and Appellant

 

For the minuter an appellant ; Mr P McConville, In House Adviser, Hamilton

 

For the pursuers and respondents; Mr Nairn, Solicitor, Motherwell

 

 

HAMILTON 24 April 2012

 

The Sheriff Principal having resumed consideration of the cause, refuses the appeal and answers the six questions of law in the stated case in the negative. Accordingly adheres to the Sheriff's interlocutor of 23 January 2012 complained of; finds no expenses due to or by either party in respect of the appeal.

 

NOTE:

 

BACKGROUND TO THE APPEAL

 

1.                  This case involves recovery of heritable property by the pursuers in respect of the failure by the defender to pay rent. The minuter is a "qualifying occupier" of the premises in terms of section 14(6) of the Housing (Scotland) Act 2001 ("the 2001 Act") as he is a member of the tenant's family aged at least 16 years. It was explained to me that the minuter was the defender's son. He was currently aged 18 and unemployed. On 22 April 2010 the pursuers served notices in terms of section 14(2) and (4) of the 2001 Act of their intention to issue proceedings on the defender and the minuter on the basis that the defender was currently in arrears of rental in respect of the subjects at 180 Liberty Road, Orbiston.

 

2.                  In terms of the said section 14(4) of the 2001 Act the pursuers are required to specify the ground on which the proceedings for recovery of possession are to be raised. The notices in this case indicate the ground on which proceedings were to be raised were arrears of rental and that proceedings might be raised at any time during the period of six months beginning 31 May 2010. Proceedings were raised by the pursuers and respondents against the defender on 22 June 2010. The statutory provisions had accordingly been obtempered. In due course the proceedings were served on the defender.

 

3.                  Decree of ejection was granted on 18 October 2010. That decree was recalled on the application of the defender on 22 November 2010. Decree passed again against the defender on 20 December 2010. On 23 January 2012 (some thirteen months later) the minuter sought to have that decree of ejection which had passed against the defender recalled under the procedure laid down in Rule 24 of the Act of Sederunt (Summary Cause Rules) 2002. At that time there had been no application to have the minuter sisted as a party to the proceedings in terms of section 15 of the Housing (Scotland) Act 2001 which provides

"Where a qualifying occupier applies to the court to be sisted as a party to proceedings under section 14, the court must grant the application."

 

4.                  Rule 24.1 of the Summary Cause Rules makes provision for recall of a decree. In particular rule 4.1(5) provides;-

"On the lodging of a minute for recall of a decree, the Sheriff Clerk must fix a date, time and place for a hearing of the minute."

The Sheriff Clerk fixed a hearing on the minute for recall of decree at the instance of the minuter to take place in Hamilton Sheriff Court on 23 January 2012.

 

5.                  On that date the Sheriff dismissed the minute as incompetent and refused to recall the decree.

 

6.                  In his stated case the Sheriff records that the pursuers had accepted that the minuter was a qualifying occupier. He had had notice of the original proceedings as outlined above on 22 April 2010. The appropriate notice had been given to him in terms of section 14(2) and (4) of the 2001 Act and in these circumstances the pursuers were entitled to raise proceedings against the defender. There was no obligation on the pursuers to serve the proceedings on a qualifying occupier - only to give notice in terms of section 14(2) and (4) of the 2001 Act. It would have been open to the minuter to have been sisted to the original proceedings in terms of section 15 of the 2001 Act, but the minuter had chosen not to do so. He was accordingly not a party to the proceedings and was not entitled to lodge a motion of a minute of recall. The Sheriff took the view that service on the minuter of the notice of proceedings as a qualifying occupier satisfied his convention rights. If the minuter chose not to apply to be sisted as a party to the proceedings, under the Summary Cause Rules he was not entitled to apply for recall of the decree.

 

7.                  The Sheriff then continued;

 

"I decided that the Minute fell to be dismissed as incompetent, the Minuter not being a party to the proceedings. I did not consider that Rule 24 could be read in the way proposed by the Minuter.

 

I followed the decision of the Sheriff Principal in North Lanarkshire Council v Kenmure 2004 HousLR 50 and of the Sheriff in Stirling Council v Neil 2005 HousLR 108, and concluded that, on a proper construction of Rule 24, the Minuter was not a party for the purposes of the rule and was not entitled to apply for recall of the decree. While the Home Owner and Debtor Protection (Scotland) Act 2010 had amended the Conveyancing and Feudal reform (Scotland) Act 1970 so as to allow a person in an analogous position of the proposed Minuter to enter proceedings, the Summary Cause Rules had not been amended in a similar way. It was not possible, in my opinion, to read the rule in a way which would provide the result contended for by the Minuter. I did not consider that the analogy between reponing procedure and a Minute for Recall of decree was of assistance to the Minuter. As Sheriff Robertson observed in Stirling Council v Neil at paragraph 64, Reponing Notes involve the exercise of discretion, whereas Minute of Recall, if competent, must be granted. I note in passing that although the version of OCR 8.1 to which Sheriff Robertson was referred appears to have been overtaken by the 2004 Act of Sederunt, Sheriff Robertson was directed to paragraph 7.24 of the Second Edition of Macphail, which, by reference to Pearson & Jackson v Allison (1871) 9M.473 proceeds as follows:

"Although the rules refer only to an application by the defender, a party other than the defender, who is entitled to be sisted as a party to the action, may apply to be reponed.

 

The 2004 Act of Sederunt, it seems to me, in that respect did no more than make specific provision for what was already understood to be the law. As far as satisfaction of the Minuter's Convention Rights were concerned, as Mr Carson had observed, the Minuter had had the opportunity on two occasions to be sisted as a minuter, and had failed to apply. That opportunity provided, in my opinion, just satisfaction of his Convention Rights under Article 6 and 8. The Minuter had not availed himself of those opportunities."

 

It is against that judgement that the appellant now appeals.

 

 

GROUNDS OF APPEAL

 

8.                  The minuter and appellant lodged the following grounds of appeal:-

"1 The Sheriff must, in terms of s3 of the Human Rights Act 1998, so far as it is possible to do so, read and give effect to subordinate legislation, in this case the Act of Sederunt (Summary Cause Rules) 2002, Rule 24 thereof, in a way which is compatible with the Minuter's Convention Rights.

2. The Sheriff erred in law by refusing the Minuter's Minute for Recall of Decree as incompetent.

3. The Sheriff has failed to act in a way which is compatible with the Minuter's Convention Rights, being those enshrined in Articles 6(1) and 8 of the European Convention on Human Rights, to a fair and public hearing, and to respect for the Minuter's private and family life and his home.

4. The Sheriff erred in law by failing to follow the reasoning of Sheriff Scott in City of Edinburgh Council v Porter 2004 Hous.L.R.46, which reasoning would have been compatible with the minuter's Convention Rights.

5. The Sheriff erred in law by rejecting the Minuter's argument that the Act of Sederunt (Ordinary Cause Rules) 1993 as amended, anent Reponing, being Rule 8.1 thereof and the recall of decree procedure contained within the Conveyancing and Feudal Reform (Scotland) Act 1970 at s24B, were analogous to the Summary Cause Recall of Decree procedure and that the disparity between how these regimes operated was an unfair breach of the Minuter's Convention Rights under Article 6(1).

 

SUBMISSIONS FOR THE APPELLANT

 

9.                  It was the primary submission of Mr McConville for the appellant that the word "party" in rule 24.1(1) should be held to include the minuter. He pointed out that this provision stated;

"A party may apply for recall of a decree...by lodging with the Sheriff Clerk a minute in Form 30, explaining the party's failure to appear..."

The minuter had not sought previously to lodge a minute for lodge of a decree in these proceedings and it was accordingly open for him to do so in January 2012.

 

10.             Mr McConville recognised that he was faced with the decision of Sheriff Principal McInnes in North Lanarkshire Council v Kenmure supra. He appreciated that, unless this decision by the Sheriff Principal was distinguished, it was binding upon the Sheriff on 23 January 2012. In that case Sheriff Principal McInnes stated;

"The question is whether it was open to the Sheriff in the circumstances of this case to recall that decree in terms of chap 24 of the Summary Cause Rules 2002.... Rule 24.1 appears to apply only to pursuers, defenders and third parties who have become parties to the action. It does not appear to apply to a potential third party who never became involved in the action at all prior to its disposal by the granting of decree. Third parties who have had the action served on them out with the United Kingdom have a reasonable time after they had knowledge of the decree against them to lodge a minute for recall. The whole tenor of that rule insofar as it relates to third parties, appears to be directed to a situation in which they are parties to an action allbeit that they are neither a pursuer nor a defender. I do not accept that third parties are restricted to those parties who have been brought into the action by a third party notice. That phrase should be construed broadly so as to include parties who have been sisted as parties at their own instance eg in terms of the Housing (Scotland) Act 2001, S15.

[8] On what appears to me to be a proper construction of rule 24.1 William Kenmure was not a third party for the purposes of that rule and was not entitled to apply for recall of a decree. I accept that, if he was a qualifying occupier, he had a right to apply to be sisted as a party to the proceedings under s15 of the 2001 Act. But once these proceedings were completed he was no longer able to exercise that right... Section 15 of the 2001 Act also appears to contemplate proceedings which have been commenced but which have not been completed. There appears to be no good reason, either in that section or in rule 24.1 why the court should be able, still less obliged to, to recall an otherwise competent decree granted against a party to the proceedings at the behest of a person claiming to be a qualifying occupier who had played no part in, nor been a party to the proceedings prior to completion - especially if the application is made long after decree was granted. For these reasons I have allowed the appeal."

It was submitted that the above decision could be distinguished. It was pointed out that the Sheriff Principal refers to s15 as "appearing" to contemplate ongoing proceedings. The use of that word implied that the Sheriff Principal was not certain upon that point. In any event, it was the minuter and appellant's position that the Human Rights Act 1998 ("The 1998 Act") was engaged and this permitted the Kenmure case to be distinguished as no reference was made to that Act in the submissions to the Sheriff Principal.

 

11.              The 1998 Act provides at s3(1):-

"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights."

Section 1(1) of the Act defines "The Convention Rights" as those set out, inter alia in articles 2 to 12 and 14 of the Convention. Section 1(3) provides that the articles are set out in schedule 1 to the Act.

Article 6.1 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...."

Article 8.1 states:-

"Everyone has the right to respect for his private and family life, his home and his correspondence.

Article 8.2 states:-

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

It was submitted that article 6 makes it clear that the minuter and appellant was entitled, in determination of his civil rights "to have a fair and public hearing". It was submitted that the refusal by the Sheriff on 23 January 2012 to permit the minuter to recall the decree deprived the minuter of a fair hearing in determination of his civil rights. The minuter became aware of his precarious position upon service on the defender of a notice intimating the date of her removal, and that of her family, from the property. By refusing to permit the decree to be recalled, the Sheriff thus deprived the minuter of his article 6.1 rights. If the Sheriff had recalled the decree and then granted decree of new, having heard parties submissions, then this would have been in accordance with the minuter's article 6.1 rights. In addition, had such procedure been followed, then it would have been open to the minuter, subject to the grounds of the Sheriff's decision to grant decree, to appeal. However, the refusal of the Sheriff to grant the minute for recall of decree deprived the minuter of the opportunity to have a hearing as envisaged by the Act and the Convention.

 

12.              In addition article 8 was engaged. The minuter, as a result of the decree, was to be deprived of the home which he shared with his mother, the defender. It was submitted that this was being interfered with by public authority (the pursuers). It was submitted that there ought, in terms of the article, to be a determination by the court that his rights under article 8.2 have been considered, the application to the court by the minuter having been made. The Sheriff's refusal to grant the minute for recall of decree thus deprived the minuter of his article 8.2 rights as the court had not determined whether or not interference with his rights in article 8.1 are

"such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others."

 

13.              It was submitted for the purposes of section 3(1) of the 1998 Act, the Housing (Scotland) Act 2001 and the Summary Cause Rules must be read and given effect in a way which was compatible with the convention rights.

 

14.              I was referred to the case of City of Edinburgh Council v Porter 2004 HousLR46. In that case Sheriff R J D Scott in Edinburgh dealt with the same issue as had arisen in the Kenmure case, but reached a different conclusion from that of Sheriff Principal McInnes. The Kenmure case was cited to Sheriff Scott, but he considered that it was not decided correctly. In that case the pursuer sought to recover possession of a property from a tenant. Decree was granted on 21 February 2003. The defender subsequently lodged a minute for recall which was refused as incompetent. A member of the tenant's family, who was a qualifying occupier in terms of ss14 and 15 of the Housing (Scotland) Act 2001, thereafter sought to be sisted as a party to the proceedings and lodged a minute for recall of the decree. The local authority argued inter alia that only a defender could competently lodge a minute for recall.

 

15.              Sheriff Scott held:-

"(1) that there was no obstacle to the applicant seeking to be sisted as a party, the words "a party" in rule 24.1 should be interpreted to include a person, such as the applicant, who would be entitled to be sisted as a party to the proceedings; the effect of reponing in ordinary cases, and recall in summary causes and small claims, was much the same, with the person being reponed or seeking recall, being restored to the position he would have been in if the decree had not been granted (para 25); (2) that there was no merit in the submission that the applicant's minute for recall was incompetent: the approach taken in Pearson & Jackson v Alison (1871) 9 M 473 which referred to the statutory provisions allowing reponing as "a beneficial enactment, which is to be largely interpreted", should be followed in interpreting rule 24.1 : if Parliament had made provision to enable qualifying relatives to be sisted in proceedings, and the word "party" was to be taken to include such a person, it was appropriate to read rule 24.1 as entitling a qualifying relative to apply for recall of decree which had been granted in his absence, albeit that it might not have been a decree in absence as far as a party called as a defender was concerned, thus the decree in the present case might have been a decree under rule 8.3(3) so far as the defender was concerned but it was a decree under rule 7.1 so far as the applicant was concerned; the rule stated that "a party may apply for recall on one occasion only", not that there should be more than one minute for recall in an action, and as the applicant had not previously applied for recall, he could now do so (paras 33 and 35); and application granted.

The Sheriff observed, that although conscious this decision might have undesirable consequences if sustained as there might be a number of qualifying relatives in any one case resulting in landlords facing a series of hearings covering more or less the same ground, landlords could prevent this happening by implementing their decree, but whether hasty enforcement of decrees for recovery of heritable property by non-private landlords was desirable, was another matter (para 36).

Accordingly it is possible to read the Housing (Scotland) Act 2001 and the Summary Cause Rules in a way compatible with the Minuter's Convention Rights by following the reasoning and interpretation of Sheriff Scott.

In more detail Sheriff Scott considered the above points as follows;

The Sheriff refers at para 23 to the analogy with Ordinary procedure and reponing where " the fundamental ground for interpreting the words "a defender" as including the person seeking to be reponed rested on the fact that that person, in each case, was entitled to be sisted as a defender in the action".

At para 24 he stated:-

"The makers of the Summary Cause Rules must be taken to have been aware of these authorities and that the rules relating to reponing in ordinary actions have been interpreted in such a way as to permit a person who would be entitled to be sisted as a defender in an action to be reponed against a decree in absence. Here, the legislation clearly lays down that in summary cause proceedings for recovery of possession of a house subject to a Scottish secure tenancy a qualifying occupier is entitled to be sisted, not as a defender perhaps, but as a party to the proceedings. The legislative intention seems clear. Once sisted as a party, as a party minuter or a defender, a qualifying occupier must surely be entitled to put forward whatever facts or legal arguments are available to him to resist the crave for recovery of possession."

At para 25 he stated:-

"The effect of reponing, in ordinary causes, and recall, in summary causes and small claims, is much the same. The person reponed, or the person seeking recall, is restored to the position he would have been in if decree had not been granted. It seems to me, therefore, that the words "a party" in rule 24.1 should be interpreted to include a person, such as the applicant, who would be entitled to be sisted as a party to the proceedings."

The Sheriff went on to state:-

"[33] In Pearson and Jackson v Alison, Lord Neaves, at (1871) 9M, p 474, referred to the statutory provision allowing reponing as "a beneficial enactment, which is to be largely interpreted". In my opinion, the same approach should be taken to the interpretation of rule 24.1. If parliament as made provision to enable qualifying relatives to be sisted in proceedings, and the word "party" in the rule is to be taken to include such a person, then it is appropriate, in my view, to read the rule 24.1. as entitling a qualifying relative to apply for recall of a decree which has been granted in his absence, albeit that it may not have been a decree in absence as far as a party called as a defender is concerned. In other words, the decree in this case may have been a decree under rule 8.3(3) as far as the defender was concerned, but it was a decree under rule 7.1 as far as the applicant was concerned.

[34] Minutes before I was due to give my decision in this case, I was passed a copy of a decision by Sheriff Principal McInnes dated 2 April 2004, in a case of North Lanarkshire Council v Kenmure, in Hamilton Sheriff Court. I gave parties an opportunity, which they took, of addressing me further in the light of that decision. In my respectful opinion, the same can be said of that decision as I have said of A & E Russell Ltd v General Maintenance International, namely that the sheriff principal would have adopted a different interpretation of the word "defender", where it occurred in what was rule 19 of the Summary Cause Rules, if the earlier cases, founded on by the solicitor for the defender, had been before him. The rule is "a beneficial enactment, which is to be largely interpreted".

[35] I do not consider that there is merit in the submission that because there has been an earlier minute for recall in this case the appellant's minute is incompetent. The rule does not say, "there will be no more than one minute for recall in an action". It says that "a party may apply for recall on one occasion only". This party, the applicant, has not previously applied for recall and in my opinion may do so now.

[36] I am conscious that this decision, if sustained, may have undesirable consequences. There may be a number of qualifying relatives in any one case. Given that minutes for recall, if competent, must be granted, landlords could face a series of hearings covering more or less the same ground. They could, of course, prevent that happening by implementing their decree, but whether hasty enforcement of decrees for recovery of heritable property by non-private landlords is desirable is another matter.

[37] Be that as it may, my decision is that the crave of the minute for recall must be granted. There is then no obstacle to the applicant seeking to be sisted as a party and I have no discretion in that matter. He will therefore be sisted as a party and called upon to state his defence."

It was submitted that the reasoning and analysis of Sheriff Scott should be adopted in this case.

 

16.              In summary it was the minuter and appellant's case that the Minuter's Convention Rights were engaged. The statutory provisions required to be read in a way compatible with the Convention. Sheriff Scott's decision in the City of EdinburghCouncil v Porter provided a clear way in which the statutory provisions could be read in a way compatible with the Convention Rights. The decision in Kenmure could be distinguished as the Sheriff Principal was not addressed on the implications of the Human Rights Act. Both Ordinary Cause and Mortgage with repossession proceedings offer analogous processes. There was no valid reason why, in what could be almost identical circumstances, a minuter under summary cause proceedings should not have the same rights as a defender or party with a statutory title or interest in an ordinary action, or a defender or "entitled resident" in a mortgage repossession case.

 

SUBMISSIONS FOR THE RESPONDENT

 

17.              It was submitted that the central issue to be decided in this appeal was the interpretation of the word "party" in rule 24.1 of the Summary Cause Rules 2002 (SCR). The appellant had contended that the word should be given a broad meaning to include not just an actual party to the action, but also a qualifying occupier who could have joined it but did not. It had been argued that the appellant's construction should have been preferred as it was uniquely compliant with the European Convention on Human Rights (ECHR).

 

18.              It was the respondent's case that the words of Rule 24.1, read in the context of the Summary Cause Rules 2002 ("SCR") as a whole, did not support such a broad reading. The word "party" is used consistently in the SCR to refer only to pursuers or defenders who have actually joined or been joined to the action. It was submitted the appellant's reference to ECHR was irrelevant since neither proposed interpretation infringed his fundamental rights and neither can therefore be preferred on these grounds. Consideration of rule 8.1 of the Ordinary Cause Rules or the position of an entitled resident in terms of Home Owners and Debtor Protection (Scotland) Act 2001 was not relevant to the current question, as both are applicable only to quite different situations from that with which this appeal is concerned.

 

19.              While it was conceded that the term "party" was not defined in the SCR, it was submitted it was used frequently and consistently to refer only to those persons who are actually taking part in the proceedings as either pursuer or defender, whether as a result of their being named in the original summons or as a result of the operation of rule 11 or 14. It was submitted that the opinion of Sheriff Principal McInnes in North Lanarkshire Council v Kenmure supra endorsed that interpretation. He considered this to represent the normal use of the word "party" particularly when read within the context of SCR as a whole.

 

20.             It was submitted that this reasoning was correct and should be followed. The SCR was clear and consistent in its use of the term: unless and until an individual has achieved the status of a "party", they remain referred to in the rules simply as a "person". There were numerous examples to support this point in the SCR, but it sufficed to consider the use of the term in Rule 14, which was particularly pertinent to this case;

"Rule 14.1 (Additional defender)

(1) Any person who has not been called as a defender may apply by incidental application to the Sheriff for leave to enter an action as a defender, and to state a defence.

(2) An application under this rule must specify:-

(a)the applicant's title and interest to enter the action, and

(b) the grounds of the defence which he proposes to state.

(3)On the lodging of an application under this rule:-

(a) the sheriff must appoint a date for hearing the application, and

(b) the applicant must forthwith serve a copy of the application and of the order for a hearing on the parties to the action.

(4) After hearing the applicant and any party to the action the sheriff may, if he is satisfied that the appellant has shown title and interest to enter the action, grant the application.

(5) Where an application is granted under paragraph 94) -

(a) the applicant shall be treated as a defender, and

(b) the sheriff must forthwith consider whether any decision already taken in the action on the issues in dispute between the parties requires to be reconsidered in light of the terms of the application."

It was submitted that this rule dealt with the method by which an individual such as the Appellant became a party to the action. The distinction between a "person" who has the right to join the action and the "party" who is already part of it was particularly clear (e.g. 14.1. (1) or 14.1(4). It should also be noted that Rules 14.1(4) and (5) would be rendered absurd, if "party" were to be read to include others who might join the action, but had not done so. To efface the distinction between "person" and "party" would have this effect throughout the SCR - other particularly bizarre examples could be found at Rule 8.5 and 10.1(2).

 

21.              It was therefore submitted that the apparent ambiguity in interpretation suggested by the appellant disappeared when the normal meaning of the word "party" was considered in the context with its use throughout the SCR, as upheld in Kenmure, i.e. persons who were actually taking part in the proceedings as either pursuer or defender, however joined to the action.

 

22.             Solicitor for the respondents referred to the Human Rights Act 1998. It was accepted that Sheriff Principal McInnes in Kenmure was not directed to any human rights argument, but this did not provide any reason to deviate from his judgement. It was submitted that the interpretation of the Sheriff Principal did not contravene any of the appellant's fundamental rights in terms of ECHR. So far as relevant, article 6 of the ECHR states:-

"(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

The appellant's right to a fair and public hearing is safeguarded by the requirements in ss14 and 15 of the Housing (Scotland) Act 2001 that a Notice of Proceedings be served on him and that the Sheriff must allow him to become a party to the action, should he apply to become one in terms of Rule 14.1 of the SCR. There is no requirement in terms of article 6 that an individual be allowed an opportunity to appeal or recall a decision made at a hearing.

 

23.             Further, the necessary court procedure having been followed in this case, there had been no breach of article 8 of the ECHR. Article 8 does not provide an unqualified right - paragraph 2 provides for the circumstances under which the right my be interfered with:

"(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

To the extent that there had been any interference with the appellant's right to respect for his home by a public authority, such interference had been in accordance with the law. The requirement that such interference be necessary in a democratic society was met by the Sheriff who heard the original application having to be satisfied that it was reasonable to grant decree in all the circumstances, as he was in this case.

 

24.             It was accordingly submitted that neither article was contravened by the interpretation of Rule 24.1 described on behalf of the respondent and upheld in Kenmure. It followed that there was no need to turn to any other reading in order to conform to s3 of the Human Rights Act 1998 and, to the extent that any other reading was possible, s3 could not require that reading to be preferred.

 

25.             Solicitor for the appellant then referred to the submissions for the appellant regarding rule 8.1 of the Ordinary Cause Rules. He noted that appellant had submitted that, had this action been raised as an ordinary cause, he was a person who would be entitled to repone in terms of 8.1 of the Ordinary Cause Rules. It had been suggested that Rule 8.1 was analogous to rule 24.1 of the SCR and that this provided a further basis upon which to prefer the appellant's interpretation of the latter rule. This reasoning was considered in City of Edinburgh Council v Porter 2004 Hous LR46, where it was supported, and Stirling Council v Neil 2005 Hous LR108, where it was rejected. Both cases referred to the Kenmure case, but the Neil case contained by far the fuller consideration of that judgement and also contained an analysis of Porter. It was submitted that the Neil case was correctly decided and that Sheriff Robertson's observations on the comparison with rule 8.1.and his consideration of the Porter judgement be followed.

There was a fundamental difference between the reponing procedure and the recall procedure, in that the former allows the Sheriff discretion and the latter does not. This distinction was not referred to in the Porter judgement and, further, the Sheriff's reasoning on the analogy between the two procedures was not consistent. On these points, Sheriff Robertson stated in Neil (at para 64).

"I agree with the submission of counsel for the pursuers that there is a contradiction of logic insofar as Sheriff Scott [delivering his judgement in Porter], at para 32, emphasises that the competency of the minutes for recall depends not on the terms of any rule relating to ordinary causes but on the terms of rule 24.1 of the Summary Cause Rules while thereafter, at paragraph 33 goes on to interpret rule 24.1 in the same beneficial manner that the court has considered reponing notes in ordinary actions, It seems to me that the analogy between minutes of recall and reponing notes is misconceived. Reponing notes involve the exercise of discretion whereas minutes of recall, if competent, must be granted. It does not appear to me that it is necessarily useful to consider decisions under reponing notes when the court is able to exercise discretion. Thus, for example, Sheriff Substitute Hay in British Anchor Pottery Co Ltd says in terms: "I therefore exercise my discretion, and repel the pursuers' objection to the competency of the reponing note." That the analogy is misconceived is reinforced in my view by the fact that in none of the three decisions of Sheriffs Principal in North Lanarkshire Council, A & E Russell Ltd and City of Glasgow Council v Murray was it considered relevant to cite authorities on reponing notes.

...

[70] It is entirely logical that rule 24.1 should be construed on its own terms and more restrictively than the terms of rule 8.1 of the Ordinary Cause Rules. Rule 24.1 affords the court no discretion in the event that a competent minute for recall of decree is presented whereas the court has discretion whether to allow an ordinary decree to be reponed against. I respectfully disagree with Sheriff Scott's assertion that in drafting the Summary Cause Rules the Court of Session must be taken to have been aware of the authorities on reponing when these are based on a different rule. While I agree with him that the effect of reponing in ordinary causes and recall in summary causes is much the same, the route by which that effect is achieved is completely and significantly different.

The subsequent change in the wording of rule 8.1 to include a "party with a statutory title or interest," does not invalidate this reasoning. The point is that the two procedures are different and remain different.

The distinction is not an artificial one: a Sheriff considering whether to grant a reponing note must consider both the proposed defence and the explanation for failure to appear. While it has been accepted by the courts that few explanations justify failure and that this is not a bar to granting a reponing note where there is a clear defence, the Sheriff is not bound to accept just any reason given and where the explanation shows reckless indifference to or disregard of the rules of procedure, it will be rejected. In other words, the Sheriff still has a discretion that is not available to him in relation to recall in terms of the SCR. This point is made in Macphail (Third Edition) at para 7.34, where it states: "Each case falls to be regarded on its own merits...the courts will not accept an explanation which demonstrates that the failure was due to a reckless indifference to, or deliberate disregard of, the rules of procedure. And if the nature of the explanation and the nature of the defence, considered together, suggest that the defender's purpose is merely to delay the pronouncement of a decree against him, the reponing note will be refused."

 

26.             It was submitted that this action was properly raised as a Summary Cause Action to which Rule 24 of the Summary Cause Rules and not Rule 8.1 of the Ordinary Cause Rules applies. The case should be dealt with on that basis.

 

27.              In the whole circumstances I was asked to refuse the appeal.

 

DECISION

 

28.             It is my view that the submissions of the respondents fall to be preferred. The essential point in this case is whether the word "party" in rule 24.1(1) should be held to include the minuter. In my opinion it does not. The minuter and appellant is a "qualifying occupier" of the premises in terms of section 14(6) of the Housing (Scotland) Act 2001. The pursuers were obliged, when the defender, who is the mother of the minuter, fell into arrears with her rental payments to serve a notice of their intention to issue proceedings against the defender on the minuter on that basis. Although in submission to me it was said on behalf of the appellant that no such intimation was made, there was in process a certificate of personal service on the minuter at 180 Liberty Road, Orbiston (the relevant address) on 22 April 2010 by Michelle McEwan, Housing Advisor, in the presence of Leah Logan, Clerk. At the hearing before me this was accepted on behalf of the appellant.

 

29.             As a consequence, as at 22 April 2010 the respondents had obtempered their statutory obligations in terms of section 14(2) and (4) of the 2001 Act as far as the minuter was concerned. The minuter was then on notice that the respondents intended to take proceedings for repossession of the property of which his mother was the tenant within six months of 31 May 2010. The proceedings were raised on 22 June 2010. There is no obligation in terms of the 2001 Act on the respondents to serve any summons on the minuter. Their obligation is to serve a summons on the defender, but only after serving a notice on the minuter in terms of section 14(2) and (4) of the 2001 Act. As a result of the service of the notice, the minuter was alerted to these proceedings.

 

30.             It is my view, having considered the Summary Cause Rules 2002, that the appellant at the time the proceedings were raised against the defender was not a party to the proceedings, but a potential party to the proceedings. I accept the argument about the distinction in the Summary Cause Rules between the use of the word "party" and "person" made on behalf of the respondent which I have recorded at paragraph 20 hereof. The appellant was entitled, as a qualifying occupier to envoke the terms of section 15 of the Housing (Scotland) Act 2001 which provides ;-

"Where a qualifying occupier applies to the court to be sisted as a party to proceedings under section 14, the court must grant the application."

Mr McConville commented that Sheriff Principal in North Lanarkshire Council v Kenmure supra had commented;

"Section 15 of the 2001 also appears to contemplate proceedings which have commenced but which have not been completed."

I would go further than that. I would say that section 15 of the Act applies only to proceedings which have been commenced but which have not been completed. When proceedings are completed e.g. by a decree being obtained, it is no longer competent for a qualifying occupier to apply to the court to be sisted as a party to the proceedings. The proceedings have been completed.

 

31.              The appellant accordingly was not a party to the proceedings when they were live before decree was granted. The issue then arises as to whether he has any title to have a decree against the defender recalled. In my opinion, the terms of rule 24.1(1) make it clear that only a party to the proceedings may apply for recall. As Sheriff Principal McInnes stated in North Lanarkshire Council v Kenmure;-

"On what appears to me to be a proper construction of rule 24.1, William Kenmure was not a third party for the purposes of that rule and was not entitled to apply for recall of a decree. I accept that, if he was a qualifying occupier, he had a right to apply to be sisted as a party to the proceedings under section 15 of the 2001 Act but once these proceedings were completed he was no longer able to exercise that right."

I agree with the reasoning of Sheriff Robertson in the case of Stirling Council v Neil (supra, para 25) and respectfully disagree with the reasoning of Sheriff Scott in the case of Edinburgh City Council v Porter (supra, para 15).

 

32.             Mr McConville endeavoured to distinguish the case of North Lanarkshire Council v Kenmure on the basis that there were no submissions on the minuter's human rights before the Sheriff Principal in that case. It is sufficient for me to say that I accept the submission on behalf of the respondents that the appellant's right to a fair and public hearing (article6) is safeguarded by the requirements in ss 14 and 15 of the Housing (Scotland) Act 2001 that a notice of proceedings be served on him and that the Sheriff must allow him to become a party to the action, should he apply to become one in terms of rule 15 of the SCR. There is no requirement in terms of article 6 that an individual be allowed an opportunity to appeal or recall a decision made at a hearing. I also accept the submissions on behalf of the respondents that , the necessary court procedure having been followed in this case, there has been no breach of article 8 of the ECHR. To the extent that there has been any interference with the appellant's right to respect for his home by a public authority, such interference has been in accordance with the law. The requirement that such interference be necessary in a democratic society is met by the Sheriff who heard the original application having to be satisfied that it be reasonable to grant decree in all the circumstances, as he was in this case.

 

33.             I do not consider it helpful to make any comparison with rule 8 of the Ordinary Cause Rules. Summary cause procedure is distinct in many ways from ordinary cause procedure. This case has been conducted in accordance with the Summary Cause Rules. In my opinion the result which has been reached does do not infringe the appellants human rights.

 

34.             In the whole circumstances I will answer the five questions in the Sheriff's stated case, which follow the five grounds of appeal, in the negative. The appeal fails and I adhere to the Sheriff's decision of 23 January 2012. In the whole circumstances I have decided to make no award of expenses.