IN SUMMARY APPLICATION B22/15 HAMISH JAMES KIRK AGAINST DILBAGH SINGH

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 DA        SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

2015SCDUMF27

JUDGMENT (Section 50, Sheriff Courts (Scotland) Act 1907) of SHERIFF GEORGE JAMIESON in summary application B22/15   HAMISH JAMES KIRK PURSUER against   DILBAGH SINGH DEFENDER _____________________________________________

 

 

 

 

 

Dumfries                                   26 February 2015                             

Act: Party                                            Alt: Powell                                         

The sheriff, having made avizandum after the hearing on 19 February 2015 and now having resumed consideration of the cause, finds: that the pursuer is entitled to decree of declarator in terms of crave 1 of the initial writ; orders a sanction of FIVE HUNDRED POUNDS (£500) STERLING with interest thereon in terms of crave 2 of the initial writ; dismisses crave three of the initial writ as not insisted upon; and finds the defender liable to the pursuer in the expenses of the summary application in the sum of ONE HUNDRED AND EIGHTY THREE POUNDS AND SEVENTY TWO PENCE (£183.72) STERLING.

 

 

 

       Sheriff George Jamieson

 

 

 

 

 

 

NOTE

 

Issue

 

• [1]The pursuer applies for declarator that the defender did not comply with the requirements of regulations 3 and 42 of the Tenancy Deposit Schemes (Scotland) Regulations 2011 (SSI No. 176) and, under regulations 9 and 10 of those Regulations, for a sanction against the defender in respect of that non-compliance.

   

• [2]The defender’s agent admitted non-compliance at the hearing and she agreed that the court was obliged to impose a sanction. The only question for me is the amount of that sanction. The relevant facts were agreed by the parties.

   

  Maximum Sanction

   

• [3]The maximum sanction is three times the amount of the deposit (regulation 10(a)), which in this case was £380, with the maximum sanction therefore being £1,140.

   

• [4]The maximum sanction should normally be reserved for the most serious cases of non-compliance (Tenzin v Russell [2015] CSIH 8A at paragraph [11]).

   

   

  Approach

   

• [5]There appear to be different shrieval approaches to the question of how to work out the appropriate sanction (see Fraser v Meehan 2013 SLT (Sh Ct) 119 and Tenzin v Russell 2014 Hous. L. R 17, based on discounting the maximum according to mitigating circumstances).

   

• [6]However, I prefer the approach adopted by Sheriff Welsh in Jenson v Fappiano 2015 GWD 4-89 at paragraphs [11], [12] and [18] as more consistent with the policy of the legislation that the sanction should be “fair, proportionate and just”, having regard to the seriousness of the non-compliance.

   

  Decision in this case

   

• [7]In this case, the tenancy started on 31 January 2013, for an initial six months. The deposit was not paid in to the approved scheme by the landlord until August 2014.

   

• [8]The deposit was therefore unprotected for well over a year, including the whole period of the initial let.

   

• [9]There is nothing to suggest however that this was a wilful default by the defender, or that he had systematically been in default in respect of a number of tenancies.
• [10]The defender, a registered landlord, acted through his agent. Although that ignorance is no excuse, it is a factor to be taken into account in the exercise of my discretion. Furthermore, the tenancy has now ended. The deposit was returned to the pursuer at the end of the tenancy.

   

• [11]In the whole circumstances placed before me in the pursuer’s pleadings and productions and the parties’ submissions, I consider that while the defender’s default can be characterised as serious it was not at the most serious end of the scale and it is also necessary to have regard to the mitigating circumstances advanced by the defender. Accordingly, in my opinion, the fair, proportionate and just sanction in this case, having regard to the maximum sanction available, is £500.

   

  Expenses

   

• [12]The defender offered £100 before the litigation, therefore less than the sanction imposed. The pursuer is thus in my view entitled to his expenses in vindication of this application to the court. He reasonably restricted these to his outlays of the sheriff officer’s fee of £93.72 and the court fee of £90. I have decerned for this total amount of expenses; taxation is not in my opinion necessary in these circumstances.