Bank Of Scotland V. William John Stevenson
| Jurisdiction | Scotland |
| Judge | Sheriff George Jamieson |
| Court | Sheriff Court |
| Date | 01 June 2012 |
| Published date | 02 August 2012 |
SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES
CASE Reference Number A80/11
JUDGMENT
of
SHERIFF GEORGE JAMIESON
In relation to validity of service of Pursuer's Notice of Calling up of Standard Security
in causa
BANK OF SCOTLAND PLC, a company incorporated under the Companies Act 1985 and having its registered office at The Mound, Edinburgh, EH1 1 YZ
PURSUER
against
MR WILLIAM JOHN STEVENSON, trading as Cargen Construction and residing at Waterside Cottage, Dalbeattie Road, Cargenbridge, Dumfries DG 2 8LW
DEFENDER
DUMFRIES: June 2012
Act: Martin on 26th March 2012 and Steele on 3rd May 2012.
Alt: Party in Person on both occasions.
The sheriff, having resumed consideration of Defender's Motion 7/3 of process, Finds: (1) section 19(6) of the Conveyancing and Feudal Reform (Scotland) Act 1970 does not contain exhaustive provisions for service of a calling up notice; (2) that the calling up notice was competently served on the Defender by sheriff officer in accordance with rule 5.4 of the Ordinary Cause Rules 1993, Therefore Refuses Defender's motion 7/3 to dismiss the action as incompetent, Appoints parties to be heard on: (1) the question of expenses arising from the preparation for and attendances in connection with Defender's motion 7/3 of process; and (2) the fixing of a new date for Debate ,within the Sheriff Court House, Buccleuch Street, Dumfries on : at 10:00 am.
Sheriff George Jamieson
NOTE:
Prelude
[1]. Although this action was commenced after the coming into force of section 2 of the Home Owner and Debtor Protection (Scotland) Act 2010 asp 6 on 30th September 2010, it proceeds as an ordinary cause, rather than a summary application, because the pursuer avers it does not concern standard security subjects used to any extent for residential purposes.
[2]. The defender denies this averment but the question of the correct form of action does not arise for consideration by the court at this stage.
[3]. The case was assigned for debate on 26th March 2012 on the parties' preliminary pleas. Previous to the debate the Defender intimated Motion 7/3 to the Pursuer, to which the Pursuer lodged a notice of opposition, for dismissal of the cause as incompetent because:
" [T]he Pursuers (sic) failed to serve the calling-up notice properly in terms of the Conveyancing and Feudal Reform(Scotland) Act 1970, section19(6). The notice was not served on the Defender personally, it was put through the letter box. See Santander UK v Gallagher, SLT (Sh Ct) 16/12/2011."
[4]. This motion called before me on 26th May 2012 alongside the debate.
[5]. I heard extensive submissions regarding the motion on that date.
[6]. It was apparent more time would be needed for parties to address me on the motion.
[7]. Further, it was possible that if the action were incompetent because the calling up notice had not been properly served, then that might result in the Defender's motion being granted and the action being dismissed without the need for further debate. For these reasons, I accordingly ex proprio motu discharged the diet of debate and continued consideration of the motion for further submissions to 3rd May 2012. Having heard those further submissions on 3rd May 2012, I then made avizandum in respect of the motion.
I. LEGISLATION
The Profession of officer of court
[8]. Section 60 of the Bankruptcy and Diligence (Scotland) Act 2007 intended to abolish the ancient offices of messenger-at arms and sheriff officer (officers of court) and replace them with "judicial officers".
[9]. This "needless abolition"( RA Macpherson, Mergers in Messengery: A Confusion of Livet and Clyde, page 92) was repealed by the Public Services Reform (Scotland) Act 2010, which by amendment of section 63 of the Bankruptcy and Diligence (Scotland) Act 2007 provided for designation by the Scottish Ministers of a professional association to which all officers of court must belong, the relevant designation in respect of the Society of Messengers-at-Arms and Sheriff Officers being made by regulation 3 of the Officers of Court's Professional Association (Scotland) Regulations 2011 (SSI 2011/90).
[10]. The profession is regulated by rules made by the Court of Session under section 75 of the Debtors(Scotland) Act 1987, currently the Act of Sederunt(Messengers-at-Arms and Sheriff Officers Rules) 1991 ( "the 1991 Rules"), and its members are subject to elaborate disciplinary procedures set out in section s 80-82 of that Act. Every officer of court must carry an official identity card when carrying out his functions: 1987 Act, section 86(1). By virtue of section 77(2) of the Debtors (Scotland) Act 1987, a messenger-at-arms is not authorised by his commission to execute a warrant granted by the sheriff or sheriff clerk.
[11]. So far as relevant to this Judgment, section 75 of the Debtors(Scotland) Act 1987 provides:
Regulation of organisation, training, conduct and procedure
(1) The Court of Session may, by Act of Sederunt, in respect of officers of court-
(d) regulate the scope of their official functions;
(e) make provision prohibiting the undertaking by them of activities other than their official functions (referred to in this Part of this Act as "extra-official activities") which appear to the Court to be incompatible with their official functions;
(f) make provision permitting the undertaking by them for remuneration of other
extra-official activities, not appearing to the Court to be incompatible as aforesaid, and the Act of Sederunt may attach conditions to any such permission;
(2) No extra-official activity (not being an activity prohibited or regulated by an Act of Sederunt made under subsection (1)(e) or (f) above) may be undertaken by an officer of court for remuneration unless the officer of court obtains the permission of the sheriff principal from whom he holds a commission to his undertaking the activity, but the sheriff principal shall not withhold such permission unless it appears to him that the undertaking by the officer of court of the activity would be incompatible with the officer of court's official functions.
[12]. Rules 14 and 15 of the 1991 Rules currently prescribe the "official functions" and the "extra-official activities" of officers of court. So far as relevant to this Judgment, these rules provide:
14- Official functions
(1) Without prejudice to..... any functions under any other enactment, an officer of court may exercise the following official functions-
(a) subject to paragraph (2) below, collect any debt constituted by decree or recoverable by summary warrant;
(b) execute diligence; or
(c) execute a citation or serve any document required under any legal process, in any place in respect of which he holds a commission as an officer of court.
15- Extra-official activities
(1) Subject to paragraph (2) below, the extra-official activities of an officer of court may include-
(b) in the absence of any statutory provision to the contrary, service on a person for remuneration of any notice which is required to be served under any enactment.
(2) An officer of court who performs an extra-official activity under paragraph (1) above shall not state or imply that he is acting in his capacity as an officer of court.
[13]. Sheriff officers are :
"not an agent or servant of [a party's] own selection but the officer of law appointed for the purpose of serving writs which the party interested cannot effectually serve for himself (emphasis added)": McGregor v McLaughlin (1905) 8 F 70 at 77, per Lord Kinnear.
Repossession under the Conveyancing and Feudal Reform (Scotland) Act 1970("the 1970 Act")
[14]. The judgment of the Supreme Court in Royal Bank of Scotland plc v Wilson 2010 SLT 1227 authoritatively establishes that the creditor is obliged to serve a calling up notice on certain persons before applying to the sheriff for a warrant to enter into possession of the security subjects in terms of section 24(1) of the Conveyancing and Feudal Reform (Scotland) Act 1970("the 1970 Act").
[15]. Since in the present action the Pursuer seeks a section 24 warrant, it was accordingly necessary for it to serve a calling up notice on the defender before making that application to the court. So far as relevant to this Judgment, the provisions of the 1970 Act concerning service of a calling up notice are as follows
19- Calling-up of standard security
(1) Where a creditor in a standard security intends to require discharge of the debt thereby secured and, failing that discharge, to exercise any power conferred by the security to sell any subjects of the security or any other power which he may appropriately exercise on the default of the debtor within the meaning of standard condition 9(1)(a), he shall serve a notice calling-up the security in conformity with Form A of Schedule 6 to this Act (hereinafter in this Act referred to as a "calling-up notice"), in accordance with the following provisions of this section.
(2) Subject to the following provisions of this section, a calling-up notice shall be served on the person having the last recorded title to the security subjects and appearing on the record as the proprietor, and should the proprietor of those subjects, or any part thereof, be dead then on his representative or the person entitled to the subjects in terms of the last recorded title thereto, notwithstanding any alteration of the succession not appearing in the Register of Sasines.
(3) Where the person having the last recorded title to the security subjects was an incorporated company which has been removed from the Register of Companies, or a person deceased who has left no representatives, a calling-up notice shall be served on the Lord Advocate and, where the estates of the person having the last recorded title have been sequestrated under the Bankruptcy (Scotland) Act 1913, the notice shall be served on the trustee in the sequestration (unless such trustee has been discharged) as well as on the...
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