Canmore Housing Association Ltd V. Sharmaine Scott
| Jurisdiction | Scotland |
| Judge | Sheriff Principal I.D. Macphail, Q.C. |
| Court | Sheriff Court |
| Date | 25 February 2003 |
| Docket Number | A1991/02 |
| Published date | 17 March 2003 |
A1991/02
JUDGMENT OF
SHERIFF PRINCIPAL IAIN MACPHAIL QC
in the appeal
in the cause
CANMORE HOUSING ASSOCIATION LTD
Pursuers and Appellants
against
SHARMAINE SCOTT
Defender and Respondent
_________________________
Act: Bookless; Archibald Campbell & Harley WS
Alt: No appearance
EDINBURGH, 25 February 2003.
The Sheriff Principal, having resumed consideration of the cause, allows the appeal and recalls the interlocutor of 20 December 2002 complained of; appoints the cause to a further options hearing on 2003 at 10 am; finds the pursuers and appellants liable to the defender and respondent in the expenses of the diet of 20 December 2002 and the expenses of the appeal; allows an account thereof to be given in and remits the same, when lodged, to the Auditor of Court to tax and to report; remits the cause to the Sheriff to proceed as accords.
NOTE
[1]This is an appeal by the pursuers against a decree of dismissal which was pronounced by default upon their failure to be represented at a diet.
[2]The pursuers are the defenders' landlords. In the initial writ they crave payment of rent arrears of £1903.43, declarator that they are entitled to recover possession of the premises, decree of removal and expenses. The defender failed to lodge a notice of intention to defend or a time to pay application, and decree in absence was pronounced on 15 August 2002. The defender, however, applied to be reponed, and on 24 October 2002 Sheriff Bell recalled the decree in absence, made an order for defences and fixed an options hearing for 6 January 2003. That was a final interlocutor which was not subject to appeal (Ordinary Cause Rules 1993, rule 8.1(5)), and at the hearing of the appeal the pursuers abandoned their attempt to challenge it which they had foreshadowed in their note of appeal. The defender lodged defences, but thereafter her solicitor withdrew from acting and on 18 September 2002 the Court fixed a peremptory diet for 6 January 2003, the same date as the options hearing.
[3]When the case was called before Sheriff Scott on 6 January 2003, the defender was present with her mother but the pursuers were not represented. The learned Sheriff correctly noted that the action was similar to many that are raised as summary causes for the recovery of possession of heritable property and are often resolved after continuations and in some cases the assistance of the in-court adviser. He was clearly sympathetic to the defender who had been ill and had had difficulties in obtaining the housing benefit to which she had been entitled. He considered that a continuation would have led to some inconvenience and quite possibly some additional stress for the defender, who seemed very nervous and unhappy. He decided that as the pursuers had failed to appear it was appropriate, in the whole circumstances, to dismiss the action. Taking the view that the whole matter might be resolved without the pursuers' raising a fresh action, he advised the defender to consult the in-court adviser. His interlocutor states:
'The Sheriff, in respect of no appearance by or for the pursuers at today's diet, dismisses the cause and finds no expenses due to or by either party.'
[4]The pursuers have now appealed against the decree of dismissal. At the hearing of the appeal the defender was not represented. The pursuers' solicitor explained that his firm had failed to represent the pursuers at the peremptory diet because it had been erroneously entered in their diary for the following day, 7 January. On 7 January they had discovered their mistake, and had immediately taken steps to appeal. He tendered their apologies to the Court for their error.
[5]The pursuers' solicitor moved me to exercise in their favour the dispensing power conferred by rule 2.1(1) of the Ordinary Cause Rules 1993. In my opinion, however, that would not be appropriate because this is not a case where the pursuers have failed to comply with a provision in the Rules: Wanderers World Ltd v Marco's Leisure Ltd 2000 SLT (Sh Ct) 79 at page 82D. He also cited Price v Fernando 1995 SCLR 23 at pages 25-26, but that case is concerned with the exercise of the dispensing power in relation to a pursuer's failure to lodge a copy of the record timeously for an options hearing. More appositely, he cited passages in Macphail's Sheriff Court Practice (2nd edn) to which I shall refer later.
[6]In my opinion the decree by default must be recalled because the Sheriff did...
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