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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 46
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A640/05
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OPINION OF LORD
BRODIE
in the cause
DRIMSYNIE ESTATE
LIMITED
Pursuer
against
MR JAMES TRAINER
LETHAM RAMSAY and ANOTHER
Defenders
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Pursuer:
P Stuart, Advocate;
The Anderson Partnership
Defenders: Delibegovic-Broome,
Advocate; Burness
21 March 2006
Introduction
[1] In
this action the defenders applied by motion, in terms of section 14 of the Law
Reform (Miscellaneous Provisions) (Scotland) Act 1985 and Rule of
Court 32.1, to remit the cause to the Sheriff of North Strathclyde at Dunoon in respect that the nature of the cause made it
appropriate to do so. The motion was
opposed on behalf of the pursuer. Mrs Delibegovic-Broome, Advocate, appeared on behalf of the
defenders. Mr Philip Stuart, Advocate,
appeared on behalf of the pursuer.
[2]. The action is for declarator that a
lease between the parties in respect of a holiday chalet at Lochgoilhead,
dated 6 and 23 August 1993, was brought to an end on 28 February 2005 and for
decree of removing.
[3] The
summons was signetted on 30 September 2005.
Defences were lodged. An open
record was made up and lodged on 13
January 2006. The adjustment period commenced on 18 January 2006. The record was due
to close on 15 March 2006. There has been adjustment on behalf of the
defenders. I was not advised of any
adjustment having been made on behalf of the pursuer.
[4] The
original term of the lease was 10 years. The original rent was г910 per annum
plus VAT. Clause Fourteenth of the lease makes provision for renewal of
the lease and review of the rent in the event of a renewal. The pursuer avers that the lease was
continued by tacit relocation, until terminated with effect from 28 February 2005 in terms of a Notice
of Removal dated 30 December
2004 sent under cover of a letter of the same date. The pursuer goes on to aver that it offered
the defenders a new lease (at an enhanced rent) but that the defenders declined
the offer. In their averments the
defenders refer to correspondence between the parties beginning with a letter
from the pursuers dated 5 January
2004. They refer to a letter
from their solicitors, dated 18 January
2005, responding to the pursuer's letter of 30 December 2004 and stating that the defenders
were treating the pursuer's letter as an offer to renew the lease at a rent to
be reviewed in terms of the rent review mechanism provided by
Clause Fourteenth. Answer 2
concludes with the averment:
"Having refused
to accept an offer it was obliged to accept for renewal of the lease, the
pursuer is personally barred from seeking the orders concluded for".
Submissions of parties
[5] Mrs Delibegovic-Broome referred me to section 14 of the Law
Reform (Miscellaneous Provisions) (Scotland)
Act 1985. It is in these terms:
"The Court of
Session may in relation to an action before it which could competently have
been brought before a sheriff remit the action (at its own instance or on the
application of any of the parties to the action) to the sheriff within those
jurisdiction the action could have been brought where, in the opinion of the
Court, the nature of the action makes it appropriate to do so".
Mrs Delibegovic-Broome
submitted that the nature of the action made it appropriate for a remit to be
made in terms of the section. The action
was not complex. The pleadings were not
complex. It could be dealt with
competently by the sheriff. The
defenders were a retired married couple.
The first defender had a gross pension of about г17,000 per annum. The second defender had a gross pension of
about г10,000 per annum. They owned two
properties. Their financial
circumstances were accordingly modest, albeit not entirely impecunious. Mrs Delibegovic-Broome
accepted that a pursuer had a right to avail himself of the jurisdiction of
whatever Court he finds more convenient or appropriate to his own
circumstances: McIntosh v British Railways
Board (No.1) 1990 S.L.T.637, but she submitted that section 14
conferred a discretion on this Court to order a remit, notwithstanding the
pursuer's exercise of its right and it was relevant to an exercise of that
discretion to consider the impact of the additional expense of litigating in
the Court of Session (judicial and extra-judicial) on defenders of modest
means: Gribb v Gribb 1993 S.L.T.178. The defenders sought a remit to the Sheriff
Court at Dunoon. Anticipating the objection that this was not
a convenient venue for either party, Mrs Delibegovic-Broome
mentioned the possibilities of parties prorogating the jurisdiction of some other Sheriff
Court. She
also noted that the sheriff has power to transfer causes to other Sheriff
Courts: Ordinary Cause Rule 26.1, Summary Cause Rule 22, and as between
the Summary and Ordinary Rules: Summary Cause Rule 23. However, if I were persuaded that it was
appropriate to remit I should remit to Dunoon,
leaving any question as to whether another Sheriff Court might be more suitable
to be determined by the sheriff: McIntosh supra at 641D to G.
[6] Mr
Stuart developed the reasons for opposition to the motion which had been stated
in the motion sheet: it was not appropriate to remit the action to Dunoon Sheriff Court; the pursuer should not be deprived of
the Court of Session as its chosen forum; the action was a test case; there was
a history of related disputes; the parties required an authoritative ruling; Dunoon Sheriff Court would be geographically inconvenient;
there would be no advantage to parties in a remit. As he understood matters, other tenants of
the pursuer who were in a similar position to that of the defenders in this
action might contribute to the expense of defending this "test case". In any event, the pursuer was entitled to an
authoritative decision from the Court of Session which could be held up to
other tenants as reflecting the relevant law.
Mr Stuart did not dispute that the action was relatively simple. He accepted that it should be capable of resolution
by debate. It was a matter of construing
the correspondence and the lease. It was
not enough to justify a remit, against opposition by a pursuer, that an action
was of small value or that it was straightforward: McIntosh
supra at 639L to 640A. Section 14
was not to be used as a means whereby a defender can avoid being exposed to an
award of expenses that is disproportionate to the matter at issue in the
action, because that can be addressed by the power of the Court to modify an
award of expenses at the end of the case:
McIntosh supra at 641A to D.
[7] Mr
Stuart had only limited information about the extent to which the defenders had
agreed to their action being treated as a "test case". This appeared to be resolved when Mrs Delibegovic-Broome addressed me again. She read from a letter from solicitors acting
for the defenders and other tenants of the pursuer expressing agreement that an
action against the defenders should be regarded as determinative of the other
tenants' rights, noting that the pursuer intended to bring an action in the
Court of Session, expressing a preference for litigation in the Sheriff Court
and specifically referring to the jurisdiction conferred by section 14 of
the 1985 Act as a means whereby the defenders would seek to have the action
remitted.
Discussion and decision
[8] I
was initially very impressed by the consideration relied on by Mrs Delibegovic-Broome that, if I did not make the remit,
private individuals of modest means would be exposed to the additional expense
consequent on litigating in the Court of Session rather than in the Sheriff
Court in respect of what Mr Stuart accepted was a relatively simple
action. While it may not be the case
that it is always cheaper for a party to litigate in the Sheriff
Court than in the Court of Session, it is
generally assumed that this is so and Mr Stuart was content that I make that
assumption in relation to this particular case.
In the event of success, some of the cost of litigation will be
recoverable as judicial expenses, but not all.
Therefore, by exercising the choice to bring the action in the Court of
Session, the pursuer is imposing additional cost on the defenders, win or
lose. I came, however, to accept
Mr Stuart's submission, under reference to McIntosh, that this consideration, of itself, does not justify a
remit. Lord Weir in Gribb supra took into consideration the extent
of the financial means of the defender as a relevant factor in exercising the
discretion conferred by section 14.
Mr Stuart sought to distinguish that decision on the ground that it was
an extreme case: the defender there
contended that he would simply be unable to afford to defend an action in the
Court of Session, whereas that was not said in the present case. That is true and may afford a sufficient
basis for distinction, but in terms of section 14 a remit may be made "where,
in the opinion of the Court, the nature of the action makes it appropriate to
do so". In McIntosh Lord President Hope, giving the Opinion of the
Court, observes, at 639G, that it is difficult to identify exactly what the
section was designed to achieve. I can only respectfully agree. However, the
wording of the section directs that the opinion of the Court is to be formed by
reference to "the nature of the action".
I do not see that as comprehending the financial circumstances of one or
other of the parties. McIntosh negatives the proposition that
the facts that a case is straightforward and of small value are enough to
justify a remit. In the course of giving
the Opinion of the Court in McIntosh
the Lord President says this, at 639H to I and 640B:
"...the power
should be seen as having been introduced to meet the needs of particular cases,
not to effect a general distribution of work from one court to another... If the
section was to have the effect of redistributing cases to the Sheriff
Court just because they were small or simple the
matter would have been approached in a different way.... If the pleadings show
that the pursuer could possibly recover more than the upper limit [below which
the Sheriff Court has a privative jurisdiction] then the action should be
regarded as appropriate for the Court of Session unless some other factor is
present which shows that the nature of the particular case is such that it is appropriate
for it to be dealt with in the Sheriff Court".
Later in the Opinion, at 641H,
Lord Hope explains that what may be seen as the mischief of a claim
resulting in recovery at a level which is disproportionately modest when
compared with the expense of litigating the case in the Court of Session can be
addressed by a modification of any award of expenses in the pursuer's favour:
"A pursuer who
raises his action in the Court of Session and seeks to take advantage that the
practices and procedures of this Court must take into account the risk that if
the sum which he recovers is small he will be confined to expenses on the
Sheriff Court Summary Cause scale or on the Sheriff Court Ordinary scale with
or without the sanction of counsel according to the circumstances ..."
[9] Is
there anything then about "the nature of the action" other than its relatively
simple nature and the relative unimportance of the matter in dispute (the
continuation or otherwise of the lease of a holiday chalet at a rent of г910
per annum or such other figure as may result from a rent review) that makes a
remit to the Sheriff Court appropriate?
I would answer that question in the affirmative.
[10] The conclusions of the summons in this action (other than the
usual conclusion for expenses) are in the following terms:
"1. For declarator
that a Lease dated 6th and 23rd August, 1993 between the
pursuer and the defenders in respect of Chalet Site Number 19, together
with runaway and layby pertaining thereto and the
plot of ground lying in front of the said Chalet, at Corrow
Farm, Lochgoilhead, Argyll was brought to an end on
28th February, 2005, and that the defenders have had no continuing
right in occupation of the said lease subjects after that date.
2. For decree ordaining the defenders to
flit and remove themselves, their family and dependants, and all their goods
and possessions, from Chalet Site Number 18, together with runaway and layby pertaining thereto and the plot of ground lying in
front of the said Chalet, and to leave the same void and redd
that the pursuer or others in their name may enter thereto and peaceably
possess and enjoy the same".
I have taken the reference to
Chalet Number "19" in the first conclusion to be a typographical
error. What the action is concerned with
is the recovery of possession of the heritable property which is Chalet Site
Number 18 together with runaway and layby
pertaining thereto and the plot of ground lying in front of that chalet, at Corrow Farm, Lochgoilhead. There is nothing incompetent about the first
conclusion. It states a proposition that
is part of the pursuers' case: that the
defenders have no right to be in occupation of the subjects. However, it is an unnecessary
conclusion. It has no purpose that would
not be equally served by the second conclusion.
This is not a case where the conclusions for removing follows, is
ancillary to and carries into practical operation a conclusion for declarator (c.f. Rankine, The Law of Leases in Scotland (3rd
Edition) page 586). In other words, this
is not a case where the pursuer requires or seeks decree declaring its right
and title as the necessary pre-condition of a further and eventual decree. The pursuer instructs its title in its
averments by reference to it being the lessor under the lease in respect of
which the defenders took possession of the subjects and that title is not
disputed. Essentially this is nothing
more than an action of removing. Now,
notwithstanding the terms of section 35(1)(c) of the Sheriff
Court (Scotland)
Act 1971, the defenders have not taken a plea of no jurisdiction or otherwise
challenged the competency of the action.
In the absence of argument to the contrary, I am prepared to proceed on
the basis that because of the conclusion for declarator,
the action has been competently raised in the Court of Session (c.f. Michael v Carruthers 1998 S.L.T.1179 at
1186F). Without that conclusion there
would have been a very real doubt as to whether the action is competent in this
Court. I was referred by Mr Stuart to chapter
41A of the Rules of Court as pointing to the availability of the Court of
Session as a forum for an action of removing.
This chapter, however, has no application to the case of tenants whose
right to occupation under a lease is said to have come to an end, which is how
the pursuer characterises the present case.
The commentary on the chapter of the Rules which is found in the
Parliament House Book (at paragraph 45A.1.2) is nevertheless of interest. Its includes the
statement:
"The conventional wisdom is
that an action of removing without any other substantive conclusion is not
competent in the Court of Session, although there is no statute or rule
excluding it".
Reference is made to the report of
the Scottish Law Commission, Recovery of
Possession of Heritable Property (No.118) (1989), at paragraph 9.1 and
the doubts expressed by Lord Penrose, and recorded in but not resolved by
the Opinion of the First Division in Oliver
& Son Ltd Petitioner 1999
S.L.T.1039.
[11] The defenders have not challenged the competency of bringing
these proceedings in the Court of Session, but their motion does put in issue
whether this action is appropriate for this Court. It appears to me to be relevant, in
considering whether the nature of this action makes it appropriate to remit it
to the Sheriff Court, to
take into account that it is essentially simply an action of removing. While the addition of the declaratory
conclusion may make such an action competent in the Court of Session, the
addition of a conclusion in the form of the first conclusion in this case makes
no difference to the nature of the action.
In practice, actions of removing are brought in the Sheriff
Court and not in the Court of Session. That fact, taken together with the conceded
straightforward nature of the case and its relative unimportance has persuaded
me that it would be appropriate to remit to the Sheriff
Court specified in the motion. That it may be supposed that there will be a
saving in judicial and extra-judicial expense in consequence of a remit, reinforces me in that view.
[12] In so concluding, I had regard to what had been said to me
about this being a "test case" and the pursuer wishing for an authoritative
ruling. While parties have agreed that
this case should be regarded as determinative of the issues arising between the
pursuer and other tenants or former tenants, their agreement did not extend to
the court by which the case should be heard.
As far as the wish for an authoritative ruling was concerned, I simply
did not understand why a ruling by the sheriff should not be regarded as
authoritative, particularly when it is the sheriff who, in the overwhelming
majority of cases, hears actions of removing.
