Drimsynie Estate Ltd v. Trainer & oRS [2006] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2006] CSOH 46

A640/05

OPINION OF LORD BRODIE

in the cause

DRIMSYNIE ESTATE LIMITED

Pursuer

against

MR JAMES TRAINER LETHAM RAMSAY and ANOTHER

Defenders

________________

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 £910 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 £17,000 per annum. The second defender had a gross pension of about £10,000 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 £910 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 6^th and 23^rd 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 28^th 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 (3^rd 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.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Drimsynie Estate Ltd v. Trainer & oRS [2006] ScotCS CSOH_46 (21 March 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_46.html Cite as: [2006] ScotCS CSOH_46, [2006] CSOH 46

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