City Of Edinburgh Council V. Mr James Burnett
| Jurisdiction | Scotland |
| Judge | Sheriff Mhairi Stephen |
| Court | Sheriff Court |
| Date | 14 March 2012 |
| Docket Number | A567/11 |
| Published date | 30 March 2012 |
| SHERIFFDOM OF LOTHIAN AND BORDERS Case Number: A567/11 | |
| Judgment by SHERIFF PRINCIPAL MHAIRI M STEPHEN in the appeal in the cause CITY OF EDINBURGH COUNCIL Pursuers and Appellants; against MR JAMES BURNETT Defender and Respondent: __________________________ |
Act: Miss Hutchison, solicitor, for appellants
EDINBURGH 14 March 2012
The Sheriff Principal, having resumed consideration of the cause, allows the appeal, recalls the sheriff's interlocutor of 9 September 2011; in respect that no notice of intention to defend has been lodged grants decree in absence as craved together with expenses of £395.46; finds no expenses due to or by in respect of the appeal.
(signed) Mhairi M Stephen
NOTE
1. The appellants are the pursuers in this ordinary action. They are the City of Edinburgh Council. They are also landlords of domestic tenancies throughout the city. The craves of the initial writ are:-
MMS
· To find and declare the Short Scottish Secure Tenancy Agreement (SSST) granted by the pursuers to the defender in respect of the subjects situated at 53 Broomhall Avenue, Edinburgh is at an end and that the parties thereto and successors are no longer bound thereby; and that the pursuers are entitled to enter upon possession of the said subjects and to dispone thereof at pleasure.
· To ordain the defender summarily to flit and remove themselves, their family, dependants, servants and sub-tenants, with their goods, gear and whole belongings from the said subjects and to leave the same void and redd, to the end that the pursuers may enter thereon and peaceably possess and enjoy the same and that under pain of ejection.
· To grant decree against the defender for payment to the pursuers of the sum of seven thousand one hundred and fifty nine pounds and ninety pence sterling (£7,159.90) together with interest thereon at the rate of 8 per cent per annum from the date of citation to follow hereon till payment.
· To find the defender liable in the expenses of this action.
2. The nominal respondent is James Burnett. I say so advisedly as he did not lodge a notice of intention to defend and therefore did not enter the process. He is said to be the tenant under an SSST granted by the pursuers and appellants in respect of heritable property at 53 Broomhall Avenue, Edinburgh.
3. The initial writ was warranted on 2 June 2011 and served on the defender by sheriff officers at the subjects on 15 June 2011. On 11 July 2011, no notice of intention to defend having been lodged, the pursuers minuted for decree in absence in terms of the craves of the initial writ.
4. The civil duty sheriff, having considered the initial writ and minute, assigned a hearing for 9 August 2011 as she wished to be addressed on the competence of proceeding with an action for recovery of possession of heritable property by way of ordinary action.
5. It appears that the hearing fixed for 9 August was continued to another date either 16 or 26 August 2011 when the sheriff heard the solicitor for the pursuers and made Avizandum.
6. By interlocutor of 9 September 2011 the sheriff dismissed the action as incompetent with a finding of no expenses due to or by. In the accompanying note the sheriff gives full reasons for taking the view that to raise an action for recovery of possession of heritable property in terms of section 36 of the Housing (Scotland) Act 2001 (hereinafter referred to as "the 2001 Act") other than by way of summary cause is incompetent.
7. The pursuers appealed on the grounds that the sheriff erred in law in dismissing the action as incompetent by reason of the sheriff wrongly concluding in law that section 36(1) of the 2001 Act requires that an action for recovery of possession of a house which is the subject of an SSST must proceed by way of summary cause.
8. I heard the appeal in this action and a similar action (City of Edinburgh Council v Chris Clacher) on 1 March 2012. As the actions were undefended it was unsurprising that the respondents did not choose to attend and there was accordingly no contradictor.
APPELLANTS' SUBMISSIONS
9. Miss Hutchison gave a brief overview of the background to these actions. Both actions had similar craves and in both cases the arrears of rent exceeded £7,000. These were Scottish Short Secure Tenancies (SSST) in terms of the 2001 Act. SSSTs were a creation of that Act. The pursuers had complied with the requirements and obligations of the landlord in such tenancies prior to raising proceedings. Both tenancies being SSSTs were for a period of six months and the tenancy then continued on a month to month basis thereafter.
10. The appellants considered that the sheriff had erred in law in construing the terms of section 36(1) of the 2001 Act as directing that all actions for recovery of possession of heritable property must proceed by way of summary cause including actions relating to SSSTs.
11. The appellants accepted that actions for recovery of possession of heritable property with a financial crave of no more than £5,000 should normally proceed by way of summary cause. The appellants did not accept, naturally, that the present actions should have proceeded by way of summary cause in respect of the first two craves and by separate ordinary action in respect of the crave for payment of arrears of rent. The financial crave, of course, in both actions exceeded the upper limit for summary cause actions for payment.
12. The appellants' submissions proceeded by way of examination of the relevant provisions of the Sheriff Courts Act 1907 and 1971 read alongside the provision in issue namely section 36(1) of the Housing (Scotland) Act 2001. Thereafter the appellants considered the intention of Parliament in enacting the 2001 Act and other authorities which may shed light on the interpretation of the statute.
13. The provision which regulates the procedure for termination of the tenancy and recovery of possession of a house which is the subject of a short Scottish Secure Tenancy is section 36 of the Housing (Scotland) Act 2001. Section 36(1) provides:-
1. The landlord under a Short Scottish Secure Tenancy may raise proceedings by way of summary cause for recovery of possession of the house which is the subject of the tenancy.
The section goes on to stipulate certain steps that must be taken prior to an action being raised including notices that must be given. Section 36(5) states:-
(5) The court must make an order for recovery of possession if it appears to the court that -
(a) The tenancy has reached the ish referred to in section 34(5)
(b) tacit relocation is not operating,
(c) no further contractual tenancy (whether or not a Short Scottish Secure Tenancy) is in existence, and
(d) sub-section (2) has been complied with.
In essence the appellants' submission is that this provision can be contrasted with s.36(1). S.36(5) is mandatory whereas sub-section 1 is permissive and not mandatory or even directive by virtue of the language used.
14. Section 39 of the Sheriff Courts (Scotland) Act 1907 provides that the procedure in all civil causes shall be conform to the rules of procedure set forth in the first schedule. The schedule contains the Ordinary Cause Rules. This provision is subject to the provisions of any Act of Parliament in force after the passing of the 1907 Act.
15. Section 35 of the Sheriff Courts (Scotland) Act 1971 defines summary causes:
"(1) The definition of "summary cause" contained in paragraph (i) of section 3 of the Sheriff Courts (Scotland) Act 1907 shall cease to have effect, and for the purposes of the procedure and practice in civil proceedings in the sheriff court there shall be a form of process, to be known as a "summary cause", which shall be used for the purposes of all civil proceedings brought in that court, being proceedings of one or other of the following descriptions, namely-
(a) actions for payment of money not exceeding £5000 in amount (exclusive of interest and expenses);
(b) actions of multiple poinding, actions of forthcoming where the value of the fund in medio, or the value of the arrested fund or subject, as the case may be, does not exceed £5000 (exclusive of interest and expenses);
(c) actions ad factum praestandum and actions for the recovery of possession of heritable or moveable property, other than actions in which there is claimed in addition, or as an alternative, to a decree ad factum praestandum or for such recovery, as the case may be, a decree for payment of money exceeding £5000 in amount (exclusive of interest and expenses);
(d) proceedings which, according to the law and practice existing immediately before the commencement of this Act, might competently be brought in the sheriff's small debt court or were required to be conducted and disposed of in the summary manner in which proceedings were conducted and disposed of under the Small Debt Acts;
and any reference in the following provisions of this Act, or in any other enactment (whether passed or made before or after the commencement of this Act) relating to civil procedure in the sheriff court, to a summary cause shall be construed as a reference to a summary cause within the meaning of this subsection."
The current actions, according to the appellants, fall outwith the definition of a summary cause as there is claimed in addition to the crave for recovery of heritable property a decree for payment of money exceeding £5,000. (s.35(1)(c)).
Thus it was contended that the terms of section 35 of the 1971 Act did not derogate from the 1907 Act provision where there is an additional crave and therefore it is competent for ordinary procedure to be used in actions for recovery of heritable property where there is a monetary crave in excess of £5,000.
16. The appellants derived assistance from the authoritative text - Macphail on Sheriff Court Practice. I was referred to Chapter 23.12 dealing with composite actions.
"The problem arises from the inclusion in section 35(1)(c) of the single...
To continue reading
Request your trial