Oliver and Son Ltd, Petitioners
| Jurisdiction | Scotland |
| Judgment Date | 16 June 1999 |
| Docket Number | No 63 |
| Date | 16 June 1999 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Lord Penrose
PracticePetitionFirst order for serviceIdentity of respondentsPetitioners seeking to remove unnamed respondents from property belonging to petitioners unlawfully occupied by respondentsNames, addresses and capacity of respondents unable to be inserted in prayer of petitionWhether order for service competentRules of the Court of Session 1994, rr 2.1, 14.4(5) and (6)Court of Session Act 1988 (cap 36), sec 461
Rule 2.1 of the Rules of the Court of Session 1994 enables the court to relieve a party from the consequences of failing to comply with the provisions of the rules of court. Rule 14.(5) provides, inter alia, that: "the name, address and capacity of each person on whom service of the petition is sought shall be set out in a schedule annexed to, and referred to in, the prayer of the petition. Rule 14.4(6)(a) provides that where it is sought in a petition to dispense with intimation, service or advertisement, the appropriate order shall be craved in the prayer, and the grounds on which the order is sought shall be set out in the statement of facts. Section 46 of the Court of Session Act 1988 enacts that: "Where a respondent in any application or proceedings in the Court, whether before or after the institution of such proceedings or application, has done any act which the Court might have prohibited by interdict, the Court may ordain the respondent to perform any act which may be necessary for reinstating the petitioner in his possessory right, or for granting specific relief against the illegal act complained of."
A number of persons illegally occupied a piece of ground owned by a company. The company did not know the persons' identity but sought to remove them under sec 46 of the 1988 Act. The company accordingly presented a petition to the Court of Session seeking a first order for service against the unnamed respondents. The Lord Ordinary (Penrose) doubted the competency of granting such an order in the circumstances and reported the matter to the Inner House for an authoritative decision thereon.
Held (1) that it would have been competent for the petitioners to seek an interdict against the occupation of their land by the unnamed individuals for, though unnamed, those individuals were readily identifiable as being occupiers of the land so that, in principle, the court could make an order for service on identifiable individuals even though those individuals were not named; (2) that the petition was accordingly competent; and (3) that the obligation in r 14.4.(5) to set out the name, address and capacity of the respondents was ancillary to the question of the identification of the persons upon whom service is to be sought in terms of the prayer of the petition so that, if the court was satisfied, as here, that the persons concerned had been adequately identified and that the petitioners were not in a position to give the information mentioned in the rule, it was in the interests of justice that the court should grant a first order for service despite the failure to comply with the rule; and first order for servicepronounced.
Pattison v Fitzgerald (1823) 2 S 536 (NE 468) andLord Advocate v The Scotsman Publications LtdSC1989 SC (HL) 122distinguished.
Oliver and Son Ltd presented a petition to the Court of Session seeking an order under sec 46 of the Court of Session Act 1988.
The petition called before the Lord Ordinary (Penrose) for a first order for service.
The Lord Ordinary doubted the competency of the petition and remitted the cause to the Inner House of the Court of Session for an authoritative ruling thereon.
Cases referred to:
Advocate (Lord) v The Scotsman Publications LtdSC 1989 SC (HL) 122
Marco's Leisure Ltd v The Occupiers of the subjects known as the Corn Exchange, New Market Road, Edinburgh [not reported] 25 May 1999 (OH)
Pattison v Fitzgerald (1823) 2 S 536 (NE 468)
The cause called before the First Division, comprising the Lord President (Rodger), Lord Sutherland and Lord Coulsfield for a hearing on 16 June 1999. Eo die their Lordships pronounced a first order for service. The the opinion of the court was delivered by the Lord President (Rodger).
Opinion of the CourtThis is a petition by Oliver and Son Ltd who seek service upon persons occupying, without the permission of the petitioners, an area of approximately 3.5 acres of ground which the petitioners own at Newmart Road, Edinburgh. According to their averments, the area is in grass and is used by the petitioners for the grazing of animals in connection with their business as livestock auctioneers at an address in Newmart Road. Apparently as the result of a direction which the Lord Ordinary (Lord Penrose) had himself given about the handling of cases of this kind, the petition came before him on counsel's motion for a first order for service. Having heard counsel, the Lord Ordinary reported the case to the Inner House.
The petitioners aver that during the weekend from 21 to 24 May 1999 a group of people, whose identities are unknown to the petitioners, entered the area of ground through a hole in the perimeter fence and took possession of the ground. It is said that they have positioned vehicles and about seven caravans around the area and have set up camp. The petitioners aver that the people concerned had, and have, no permission to enter or occupy the area and that, despite being asked to leave, they refuse or at least delay doing so. In particular the petitioners say that Had the petitioners known that the persons intended to occupy the said area, they would have sought interdict to restrain them from doing so.
The petitioners go on to make a number of averments about possible damage to the property and conclude by seeking an order ordaining the persons unlawfully occupying the area without their permission to remove themselves, their vehicles and other goods and gear from the area. The statement of facts in the petition ends with a...
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