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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Brown v Glasgow Housing Authority Ltd [2007] ScotCS CSOH_32 (13 February 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSOH_32.html Cite as: [2007] ScotCS CSOH_32, [2007] CSOH 32 |
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OUTER HOUSE, COURT OF SESSION [2007] CSOH 32 |
|
A31/07 |
OPINION OF LORD GLENNIE in the cause ELIZABETH BROWN Pursuer; against GLASGOW HOUSING AUTHORITY LIMITED Defenders: ________________ |
Pursuer:
Muquit;
Drummond Miller
Defenders: Williamson;
MacRoberts
Introduction
[2] The relevant facts can be taken from the amended summons and from the information placed before me by counsel. Due to the urgency of bringing an action of this type, it comes as no surprise that the averments in the summons are somewhat lacking in specification, that some are factually incorrect and that further points emerge in the course of submissions. I am grateful to both counsel for their efforts to bring the full picture before the court.
[3] Because
the positions of the parties are reversed in this action as compared with that
in the
"The defender [Ms Brown] was temporarily absent from her home at the time the case called. It is unreasonable to evict [Ms Brown] in the circumstances. Her rent is due to be paid by housing benefit and an error occurred. She has a 14 year old dependent child."
The decree in absence was recalled on 30 May, presumably upon one or more of the grounds in the minute. The case was continued until 20 June and then until 11 July, on which date the sheriff ordered Ms Brown to pay £15 per week towards the arrears of rent and continued the case again until 15 August.
[4] I
was told by Ms Williamson, for the GHA, on instructions,
that a very large number of cases pass through the
[5] Ms Brown
appeared at one or two of the continued hearings in the
[6] According
to Ms Muqit, who appeared on her behalf before
me, Ms Brown only heard on 14 November (when she received a letter
from the GHA dated 9 November) that the decree had been made against her
in her absence. She instructed a
solicitor on 16 November. There
was, apparently, some difficulty in finding the process. The solicitors appreciated that they could
not move for recall, since Rule 24.1(2) of the Summary Cause Rules permits
recall of a decree only once in any one action.
They lodged a notice of appeal and sought leave to appeal out of
time. I am told that the Sheriff
Principal allowed the appeal to be lodged out of time and fixed a hearing for
[7] On 19 January Ms Brown received a letter from the GHA saying that the eviction would take place on 22 January. She contacted solicitors who instructed counsel. A summons was prepared under severe time constraints. It was signetted on 22 January. This triggered a caveat. I am told that sheriff officers were already in attendance at Ms Brown's flat when they received a telephone call to say that the caveat had been triggered. They had already changed the lock on the door and had given the new key to the person in attendance from the GHA. On receipt of the telephone call, however, they ceased trying to evict Ms Brown. The key was given to her, and she and her belongings were left in the flat.
Submissions for the pursuer
[8] On behalf of
Ms Brown, Ms Muqit submitted that she
needed to show a prima facie case for reduction of the decree
and that the balance of convenience favoured the grant of interim relief. As to the latter, she submitted that in this
case, where failure to grant interim relief would leave the pursuer and her son
homeless, the balance of convenience was clearly satisfied. As to the former, she submitted, in reliance
on the decision of an Extra Division in Robertson's
Executor v Robertson 1995 SC 23,
that, in an action to reduce a decree in absence, it is not necessary to aver
"exceptional circumstances". It is
necessary to look at the whole circumstances of the case. There is no precise test. The weight to be attached to the circumstances
will vary from case to case. In the
present case, the circumstances relied upon were these: first, that Ms Brown was not aware that
there was to be a hearing on 15 August 2006 or, subsequently on 10 and
17 October, and she had not received letters sent to her by the GHA after
those hearings; second, that she was not
aware that it was to be contended that she was in default, since she had
(wrongly) understood that the sheriff had ordered her to make payments of
arrears at the rate of £15 per fortnight, not £15 per week; and, third, that she can partially repay the
arrears by selling her car and by her backdated claim for housing benefit.
Submissions for the defenders
[9] For the GHA, Ms Williamson challenged both the approach adopted by Ms Muqit and the facts presented by her on Ms Brown's behalf. She submitted that, as the annotations to Rule of Court 53.2 made clear, the discretion to recall a decree was part of the supervisory jurisdiction. Citing the Opinion of Lord Johnston in a judicial review case, Shetland Line (1984) Ltd v Secretary of State for Scotland 1996 SLT 653, 658, as illustrative of how the supervisory jurisdiction may be exercised, she said that the court must review the decision against the background of the material before the decision maker at the time he made his decision and not by reference to subsequent events or material which was not before him. Applying that approach, she submitted that it had not been shown here, even to the standard of a prima facie case, that the sheriff had acted ultra vires, had erred in law or had acted unreasonably. Further, she submitted, there had been no adequate explanation for Ms Brown having allowed decree to pass by default. She had been in court personally on 11 July when the order for payment was made and the hearing was continued to 15 August. Had she attended on 15 August she would have become aware of the subsequent continued hearings. She was the author of her own misfortune. Further, although the defenders themselves were under no obligation to keep Ms Brown informed of the hearing dates, they had, in fact, written to her after the hearing of 15 August, referring to that hearing and informing her of the continued hearing fixed for 10 October and of the potential consequences of her not attending. They had also, in accordance with their usual practice, delivered a copy to the Ms Brown's address by hand. They had written again in the same terms mutatis mutandis, using the post and hand delivery, when Ms Brown failed to attend on 10 October and after the hearing on 17 October when the eviction order was made. There was no basis in fact for Ms Brown's contention that she had not known either about the hearing at which the decree for eviction was made or about the decree itself until it was too late to appeal.
[10] In addition to these points on the merits of the claim for
interim suspension and interdict, Ms Williamson took two points going to
the competency of the application.
First, she pointed to the requirement in Rule of Court 53.2 that,
whenever reduction of a decree of an inferior court is concluded for,
intimation of the action shall be made to the clerk of that court, warrant for
intimation shall be inserted in the summons and a notice of intimation shall be
attached to the copy of the summons.
This was not done. Therefore, she
submitted, the action was not properly before the court. Secondly, she argued, the eviction had been
carried out and it was therefore now too late to seek to reduce the decree on
the basis of which it had proceeded. She
referred me to three cases decided in the
Discussion
[11] I start by considering
the points relevant to the question of competency. Ms Muqit
acknowledged that the pursuer had not complied with the requirement, in terms of
Rule of Court 53.2, to intimate the action to the clerk of the
[12] The cases cited by Ms Williamson support the argument that implementation of a decree for ejection may be regarded as having been completed when the landlord has secured the property against the tenant, even though the tenant's possessions remain in the property: see Deighan v City of Edinburgh Council at para.[7] and City of Glasgow Council v Kelly at p.169E. An example is where the locks are changed and the keys given to someone other than the tenant. But those cases do not deal with the case where the tenant personally remains in the premises. Ms Williamson was unable to draw my attention to any authority suggesting that eviction may be complete in such a case. The difference is of importance for this reason, that while the changing of the locks achieves the aim of securing the property for the landlord against the tenant when the tenant is out of the property, it can hardly do so when the tenant is within. The presence of the tenant's property in the property does not prevent eviction from being completed since, once the tenant is out and the locks are changed, the landlord can remove the tenant's property at a later date. But until the tenant personally removes himself or is removed, ex hypothesi he has not been evicted; and merely changing the lock does not exclude him. Ms Williamson said that in many cases, once the locks were changed and the eviction was completed, the landlords might temporarily allow the tenant back in under a new arrangement. I am sure that that does happen. But in those cases the eviction has been completed. Nothing in this Opinion requires that practice to be changed. But such cases are quite different from the case with which I am here concerned where the eviction was interrupted before the tenant removed herself or was removed. Ms Williamson also stated that, in the present case, Ms Brown was packed and ready to leave. I did not understand this to be accepted by Ms Muqit; and I do not have material before me to enable me to decide this issue. But to my mind it matters not. At best it would show a readiness to leave peaceably though, in view of the fact that this action had been commenced, readiness should not be equated with willingness. It could not show that the eviction was completed.
[13] I, therefore, do not accept the argument that the application for interim relief is not competently before the court. I turn therefore to consider the merits of the motion made on behalf of Ms Brown.
[14] On a motion for interim relief, the pursuer must show a prima facie case on the merits. Sometimes the expression "good arguable case" is used, but I do not think there is any difference between the two expressions. What does that mean in the present case? Where interim interdict is sought in support of a legal right, it is clear that the pursuer must demonstrate a prima facie case that he has such a legal right. But here the position is different. The action of reduction seeks to invoke the inherent power of the court. The exercise of the power is essentially discretionary. On the full hearing of the action for reduction of a decree in absence, there are no hard-edged tests to be satisfied: Robertson's Exr. v Robertson. The pursuer need not aver or prove exceptional circumstances. All the circumstances of the case will be taken into account. If that is the position at the full hearing of the action, there cannot logically be a higher or more precise threshold in the case of an application for interim relief, where the pursuer has to establish only a prima facie case.
[15] I do not accept that the cases on judicial review provide any
assistance. The citation from Shetland Line (1984) Ltd v.Secretary of State for
[16] It may be helpful to look more closely at what a pursuer in a case such as this will require to put forward on the full hearing of the action, should it ever get to that stage. It is clear that the court will require a candid explanation of why the pursuer (in the action for reduction) did not appear and allowed the decree to be granted in absence. However, as Lord MacFadyen says in Nunn v Nunn 1997 SLT 182 at 184D-E, the absence of any justification or mitigating circumstances will not necessarily mean that the action of reduction will fail. In Shaw v Performing Right Society Ltd 2002 SCLR 993, to which I was referred by Ms Williamson, reduction was refused because the pursuer (in the action of reduction) had failed in the sheriff court to take the normal steps to make himself aware of the fact that decree had passed against him, was out of time for appealing and was therefore "the author of his own misfortune". I do not find that decision surprising. It is an illustration of how the absence of any justification or mitigating factors may be decisive. But I note that Lord Menzies was not referred to Robertson's Exr. v Robertson and, consistently with the submissions made to him, proceeded on the basis that the pursuer required to show "exceptional circumstances" in order to obtain reduction of the decree in absence in that case. Not surprisingly he held that the pursuer's failures did not amount to exceptional circumstances.
[18] Applying that to the application for interim relief, it seems to me that, in such a case, in an application for interim suspension and interdict, the pursuer will be required to put forward an explanation of why he failed to appear; and will also have to show a prima facie case that had he appeared the decree would not, or should not, have passed against him in the form in which it did pass.
[19] How does that apply to the present case? Ms Brown has put forward an explanation
of why she did not attend court. She
says that she did not know of the hearing date.
Because she did not attend on 15 August, she did not know of the
subsequent hearings. She says that she
did not receive the letters from the GHA.
Her explanation is challenged. I
cannot decide that issue on ex parte statements made at the bar. It is said, correctly, that Ms Brown was
personally present in court on
[20] I turn, therefore, to consider the balance of convenience. Ms Muqit
submitted that it lay in favour of granting interim relief. Ms Williamson did not seriously
challenge this. I am satisfied that
balance of convenience favours the grant of interim relief. Were I to refuse it, Ms Brown and her
son would be rendered homeless. If I
grant it, then it is open to the parties to reach an agreement so as to get the
proceedings in the
Disposal
[21] I shall therefore grant interim suspension and interdict.
Addendum
[22] In the course of the hearing, the GHA helpfully produced
documents showing the payments that Ms Brown had made during the period
from the beginning of July 2006 until now.
They did so, primarily, as I understood it, to show that her payments
were irregular and infrequent. I have
referred to these records already as showing that Ms Brown had made a
number of payments of arrears after the sheriff ordered her to do so, and even
though the payments were irregular they in fact averaged out at about one per
fortnight. However, the records also
show that after decree for eviction was obtained, rent continued to be paid on
Ms Brown's behalf and accepted by the GHA.
It was credited by them to an account under her name and the address of
the premises which bore to show rent accruing and payments being made in
respect of that rent. The record also
showed three further payments of £15 towards arrears of rent. I raised with Ms Williamson the question
whether this was consistent with the termination of the tenancy. It is made clear in Deighan v City of
[23] The cases all show that the question whether receipt of rent gives rise to a waiver of an irritancy notice - and, I would have thought, of a right to evict pursuant to a decree of ejection - or to the creation of a new tenancy is a question of fact requiring an investigation of all the circumstances. There is some force in the substantive points made by Ms Williamson. There is clearly force in her submission that there are no averments in the summons in support of any such case. It is open to Ms Brown to amend, if so advised, to take any such point. As a decision on this matter does not affect the outcome of the motion, I shall not say any more about it at this stage. Had it become crucial, I would have been inclined to allow Ms Brown the opportunity to amend her summons before reaching my decision on her motion.