Young's Executors v Peebles
| Jurisdiction | Scotland |
| Judgment Date | 30 July 1996 |
| Date | 30 July 1996 |
| Docket Number | No. 42. |
| Court | Court of Session (Inner House - Full Bench) |
Full Bench.
Lord Morison, Lord Clyde, Lord Milligan, Lord Coulsfield and Lord Gill.
PracticeAppealAppeal from sheriff courtSheriff ordaining pursuers to find cautionInterlocutor not appealed against and caution not lodgedDecree of absolvitorSummary decreeDecree of absolvitor granted simultaneously with motion for summary decree being refused as incompetentWhether competent to bring interlocutor ordaining pursuers to find caution under review in appeal against decree of absolvitorSheriff Courts (Scotland) Act 1907 (7 Edw VII, cap 51), secs 28 and 29, sched 1, r 31.21
Pursuers were ordained to find caution as a condition precedent to being allowed to continue with an action in the sheriff court. The pursuers did not appeal against that interlocutor. After the time limit for finding caution had expired, the defender enrolled a motion seeking decree of absolvitor. The pursuers also enrolled a motion seeking summary decree. Both motions were heard at the same time. The sheriff held that the pursuers' motion was incompetent and granted decree of absolvitor. The pursuers informed the sheriff that they had no intention of lodging caution. The pursuers appealed to the Court of Session against the interlocutor pronouncing decree of absolvitor and sought also to challenge the interlocutor ordaining them to find caution. The cause was remitted to a bench of five judges to allow consideration of the question whether, in circumstances in which an order for caution had been made, and that interlocutor had not been appealed against according to the procedure applicable and within the time limit prescribed, and in which caution had not been found and decree of absolvitor had followed, it was competent to question the interlocutor by which the order for caution was made, in an appeal against the interlocutor granting absolvitor.
Held (by a court of five judges) (1) that this was not a case in which the pursuers sought leave to appeal and had that leave refused, nor even a case in which the pursuers merely allowed time for appealing to elapse without taking action, but was rather a case in which the pursuers had no intention of finding caution, ignored the requirement that leave to appeal should be sought if such an interlocutor was to be challenged and deliberately sought to bypass the sheriff's order; (2) that in those circumstances it was incompetent for the pursuers to seek to bring under review the interlocutor which had ordained them to lodge caution; and appeal refused as incompetent.
Observed that because of the very limited argument presented to the court, it was not desirable to go any further than was necessary to dispose of the instant case or to lay down rules to govern future cases.
Dorothy Young brought an action in the sheriffdom of Lothian and Borders at Linlithgow against Stuart Peebles in respect of her allegedly illegal eviction from premises in Bathgate. The pursuer having died, Arun Gupta and Ms Isabel Ferguson were sisted in the action as her executors.
After sundry procedure, the sheriff ordained the pursuers to find caution as a condition precedent of pursuing the action.
The time limit for lodging caution having expired, the defender enrolled a motion for decree of absolvitor. The pursuers also enrolled a motion for summary decree.
At advising, the sheriff allowed the defenders' motion but refused the pursuers' motion as being incompetent.
The pursuers appealed to the Inner House of the Court of Session.
The appeal called before an Extra Division on 1 March 1996 when it was remitted to a court of five judges.
Cases referred to:
Frimokar (UK) v. Mobile Technical Plant (International) 1990 SLT 180
Macaskill v. NicolSC 1943 SC 17
Marsh v. BaxendaleSC 1994 SC 157
Mowbray v. D C Thomson & Co LtdSC 1996 SC 197
Stevenson v. Midlothian District CouncilSC 1983 SC (HL) 50
The cause called before a court of five judges, comprising Lord Morison, Lord Clyde, Lord Mililgan, Lord Coulsfield and Lord Gill for a hearing on the summar roll.
At advising, on 30 July 1996, the opinion of the court was delivered by Lord Coulsfield.
Opinion of the CourtThe first pursuer in this action, Mr Arun Gupta, was formerly the proprietor of subjects at 47 Young Crescent, Bathgate. The pleadings in the action are lengthy and confused, and it is not easy to understand all the issues which are sought to be raised. The position appears to be that proceedings were taken at the instance of the Halifax Building Society for recovery of possession of the premises at Young Crescent, and in those proceedings the defender acted for the building society. Judgment was given in favour of the building society by an interlocutor of the sheriff dated 23 July 1991. An appeal to the Court of Session followed, but the proceedings were eventually concluded in favour of the building society and the decree was extracted. On 13 July 1993, steps were taken to obtain vacant possession of the premises. The defender was present on that date, as was the first pursuer. There was also present in the premises a Mrs Dorothy Young, who, it has been alleged, was, at least at one time, a tenant of the premises. Possession was eventually obtained but subsequently the present action was raised by Mrs Young. In the action, she claimed that the defender had been guilty of illegal and oppressive behaviour in prosecuting the...
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