Act: Miss Hutchison, solicitor, for appellants

EDINBURGH 14 March 2012

The Sheriff Principal, having resumed consideration of the cause, allows the appeal, recalls the sheriff's interlocutor of 9 September 2011; in respect that no notice of intention to defend has been lodged grants decree in absence as craved together with expenses of £395.46; finds no expenses due to or by in respect of the appeal.

(signed) Mhairi M Stephen

NOTE

1. The appellants are the pursuers in this ordinary action. They are the City of Edinburgh Council. They are also landlords of domestic tenancies throughout the city. The craves of the initial writ are:-

MMS

· To find and declare the Short Scottish Secure Tenancy Agreement (SSST) granted by the pursuers to the defender in respect of the subjects situated at 53 Broomhall Avenue, Edinburgh is at an end and that the parties thereto and successors are no longer bound thereby; and that the pursuers are entitled to enter upon possession of the said subjects and to dispone thereof at pleasure.

· To ordain the defender summarily to flit and remove themselves, their family, dependants, servants and sub-tenants, with their goods, gear and whole belongings from the said subjects and to leave the same void and redd, to the end that the pursuers may enter thereon and peaceably possess and enjoy the same and that under pain of ejection.

· To grant decree against the defender for payment to the pursuers of the sum of seven thousand one hundred and fifty nine pounds and ninety pence sterling (£7,159.90) together with interest thereon at the rate of 8 per cent per annum from the date of citation to follow hereon till payment.

· To find the defender liable in the expenses of this action.

2. The nominal respondent is James Burnett. I say so advisedly as he did not lodge a notice of intention to defend and therefore did not enter the process. He is said to be the tenant under an SSST granted by the pursuers and appellants in respect of heritable property at 53 Broomhall Avenue, Edinburgh.

3. The initial writ was warranted on 2 June 2011 and served on the defender by sheriff officers at the subjects on 15 June 2011. On 11 July 2011, no notice of intention to defend having been lodged, the pursuers minuted for decree in absence in terms of the craves of the initial writ.

4. The civil duty sheriff, having considered the initial writ and minute, assigned a hearing for 9 August 2011 as she wished to be addressed on the competence of proceeding with an action for recovery of possession of heritable property by way of ordinary action.

5. It appears that the hearing fixed for 9 August was continued to another date either 16 or 26 August 2011 when the sheriff heard the solicitor for the pursuers and made Avizandum.

6. By interlocutor of 9 September 2011 the sheriff dismissed the action as incompetent with a finding of no expenses due to or by. In the accompanying note the sheriff gives full reasons for taking the view that to raise an action for recovery of possession of heritable property in terms of section 36 of the Housing (Scotland) Act 2001 (hereinafter referred to as "the 2001 Act") other than by way of summary cause is incompetent.

7. The pursuers appealed on the grounds that the sheriff erred in law in dismissing the action as incompetent by reason of the sheriff wrongly concluding in law that section 36(1) of the 2001 Act requires that an action for recovery of possession of a house which is the subject of an SSST must proceed by way of summary cause.

8. I heard the appeal in this action and a similar action (City of Edinburgh Council v Chris Clacher) on 1 March 2012. As the actions were undefended it was unsurprising that the respondents did not choose to attend and there was accordingly no contradictor.

APPELLANTS' SUBMISSIONS

9. Miss Hutchison gave a brief overview of the background to these actions. Both actions had similar craves and in both cases the arrears of rent exceeded £7,000. These were Scottish Short Secure Tenancies (SSST) in terms of the 2001 Act. SSSTs were a creation of that Act. The pursuers had complied with the requirements and obligations of the landlord in such tenancies prior to raising proceedings. Both tenancies being SSSTs were for a period of six months and the tenancy then continued on a month to month basis thereafter.

10. The appellants considered that the sheriff had erred in law in construing the terms of section 36(1) of the 2001 Act as directing that all actions for recovery of possession of heritable property must proceed by way of summary cause including actions relating to SSSTs.

11. The appellants accepted that actions for recovery of possession of heritable property with a financial crave of no more than £5,000 should normally proceed by way of summary cause. The appellants did not accept, naturally, that the present actions should have proceeded by way of summary cause in respect of the first two craves and by separate ordinary action in respect of the crave for payment of arrears of rent. The financial crave, of course, in both actions exceeded the upper limit for summary cause actions for payment.

12. The appellants' submissions proceeded by way of examination of the relevant provisions of the Sheriff Courts Act 1907 and 1971 read alongside the provision in issue namely section 36(1) of the Housing (Scotland) Act 2001. Thereafter the appellants considered the intention of Parliament in enacting the 2001 Act and other authorities which may shed light on the interpretation of the statute.

13. The provision which regulates the procedure for termination of the tenancy and recovery of possession of a house which is the subject of a short Scottish Secure Tenancy is section 36 of the Housing (Scotland) Act 2001. Section 36(1) provides:-

1. The landlord under a Short Scottish Secure Tenancy may raise proceedings by way of summary cause for recovery of possession of the house which is the subject of the tenancy.

The section goes on to stipulate certain steps that must be taken prior to an action being raised including notices that must be given. Section 36(5) states:-

(5) The court must make an order for recovery of possession if it appears to the court that -

(a) The tenancy has reached the ish referred to in section 34(5)

(b) tacit relocation is not operating,

(c) no further contractual tenancy (whether or not a Short Scottish Secure Tenancy) is in existence, and

(d) sub-section (2) has been complied with.

In essence the appellants' submission is that this provision can be contrasted with s.36(1). S.36(5) is mandatory whereas sub-section 1 is permissive and not mandatory or even directive by virtue of the language used.

14. Section 39 of the Sheriff Courts (Scotland) Act 1907 provides that the procedure in all civil causes shall be conform to the rules of procedure set forth in the first schedule. The schedule contains the Ordinary Cause Rules. This provision is subject to the provisions of any Act of Parliament in force after the passing of the 1907 Act.

15. Section 35 of the Sheriff Courts (Scotland) Act 1971 defines summary causes:

"(1) The definition of "summary cause" contained in paragraph (i) of section 3 of the Sheriff Courts (Scotland) Act 1907 shall cease to have effect, and for the purposes of the procedure and practice in civil proceedings in the sheriff court there shall be a form of process, to be known as a "summary cause", which shall be used for the purposes of all civil proceedings brought in that court, being proceedings of one or other of the following descriptions, namely-

(a) actions for payment of money not exceeding £5000 in amount (exclusive of interest and expenses);

(b) actions of multiple poinding, actions of forthcoming where the value of the fund in medio, or the value of the arrested fund or subject, as the case may be, does not exceed £5000 (exclusive of interest and expenses);

(c) actions ad factum praestandum and actions for the recovery of possession of heritable or moveable property, other than actions in which there is claimed in addition, or as an alternative, to a decree ad factum praestandum or for such recovery, as the case may be, a decree for payment of money exceeding £5000 in amount (exclusive of interest and expenses);

(d) proceedings which, according to the law and practice existing immediately before the commencement of this Act, might competently be brought in the sheriff's small debt court or were required to be conducted and disposed of in the summary manner in which proceedings were conducted and disposed of under the Small Debt Acts;

and any reference in the following provisions of this Act, or in any other enactment (whether passed or made before or after the commencement of this Act) relating to civil procedure in the sheriff court, to a summary cause shall be construed as a reference to a summary cause within the meaning of this subsection."

The current actions, according to the appellants, fall outwith the definition of a summary cause as there is claimed in addition to the crave for recovery of heritable property a decree for payment of money exceeding £5,000. (s.35(1)(c)).

Thus it was contended that the terms of section 35 of the 1971 Act did not derogate from the 1907 Act provision where there is an additional crave and therefore it is competent for ordinary procedure to be used in actions for recovery of heritable property where there is a monetary crave in excess of £5,000.

16. The appellants derived assistance from the authoritative text - Macphail on Sheriff Court Practice. I was referred to Chapter 23.12 dealing with composite actions.

"The problem arises from the inclusion in section 35(1)(c) of the single exception as to a pecuniary crave which exceeds the summary cause limit. It is submitted that the exception was specified only because such a crave would be beyond the scope of summary cause procedure as specified in section 35(1)(a), and that the object of its inclusion was to make it clear that it is competent to raise as a summary cause an action craving recovery of possession with an additional or alternative pecuniary crave within the summary cause limit. Its inclusion does not necessarily imply that it is incompetent to bring an ordinary action with a crave for recovery of possession and other craves beyond the scope of summary cause procedure, and there appears to be no useful purpose to be served by reading section 35(1)(c) in that way."

17. The appellants suggested that the wording of sub-section (1) of section 36 of the 2001 Act was not inconsistent with the provisions of the 1907 Act. The appellants argued that the use of the word "may" indicated a permissive approach rather than a directive approach. The appellants suggested that this approach was supported by the dicta of the late Lord Rodger of Earlsferry in RBS v Wilson and Another [2010] UKSC 50 at paragraph 46 where he discussed the use of the word "shall" in the legislation under scrutiny. Lord Rodger states:-

"The court emphasised the word "may". But the simple fact is that Parliament used the word "shall" in section 19(1). Although their Lordships must have accepted the submission of counsel for the bank that "shall" had to be read "in a permissive and not a mandatory sense", they do not explain what there is in the act, or indeed in authority, to justify that interpretation of section 19(1). For my part, I can see nothing."

I was also referred to Kodak Processing Companies Ltd v Shoredale Ltd 2010 SC 113. This case involved interpretation of the Statutory Provision in respect of service of pre-irritancy warning notices in terms of the Law Reform (Miscellaneous Provisions) (Scotland) 1985 section 4(4). The words of the statute were to be given their precise meaning. I was also referred to Strouds Judicial Dictionary of Words and Phrases pages 1644 and 1645 on the Interpretation of the word "may".

"Though dicta of eminent judges may be cited to the contrary, it seems a plain conclusion that "may", "it shall be lawful", "it shall and may be lawful", "empowered", "shall hereby have power", "shall think proper", and such like phrases, give, in their ordinary meaning, an enabling and discretionary power."

18. The Report of the Scottish Law Commission (No 118) on Recovery of Possession of Heritable Property 1989 was referred to by the appellants in argument. I was referred to Part 8 Summary Procedure in the Sheriff Court and paragraph 8.7 on Composite Actions. The Law Commission Report recommended that legislation should specifically provide for a composite action where there was a crave for recovery of possession of heritable property and a claim for a sum of money exceeding the summary cause limit to proceed as an ordinary cause. However the legislation does not specifically provide for an ordinary action and it is speculation as to whether this is a deficiency in the legislation or not. The solicitor for the appellant commented that the relevant section, (section 36 of the 2001 Act) provided by way of the word "may" a permissive approach to the raising of proceedings which can be contrasted with the mandatory approach in sub-section 5 whereby the court must grant decree when certain conditions are fulfilled. The appellant drew further support from the dicta of Lord Weir in J & J (Inns) Limited v Angus District Licensing Board. The case turned on the provisions of section 25(3) of the Licensing (Scotland) Act 1976 which provided that a Licensing Board "may" substitute another employee or agent for an outgoing employee or agent responsible for the day to day running of licensed premises. Lord Weir in his judgment declined to give a different interpretation of the word "may" on the basis that the Parliamentary draftsman may have inadvertently left the word in the legislation. He went on to say "I do not find the use of the permissive word in section 25(3) of the Act of 1976 troublesome and in any event it will be an adventurous construction of a statutory provision to alter the plain meaning of an expression in an Act of Parliament upon a speculation that the draftsman had inadvertently omitted to make an alteration in an amending statute". The appellants derived assistance from this in support of the argument that it was the intention of the legislator to make the provision permissive and not mandatory or directive when they made use of the word "may" in section 36(1) of the Act otherwise a directive or mandatory expression such as "shall" would have been used instead.

19. The Sheriff Principal in Milmor Properties Ltd v W and T Investment Co Ltd 2000 SLT (Sh Ct) 2 refused an appeal against the decision of the sheriff to repel the defenders' plea to the competency of a composite action seeking a decree ad factum praestandum and interdict. The Sheriff Principal at page 3 observes "The approach of the learned sheriff has the immediate attraction that it produces a result which is practical and sensible. The solicitors for the defenders did not suggest any benefit which would accrue to either party, or to the interests of justice as a whole, from the upholding of his submission and I can think of none. If it is found and declared that the pursuers are the owners of the subjects; that the defenders have no right, title or interest in the subjects and that the defenders have made erections thereon without the consent of the pursuers, it follows that the defenders should be required to remove such erections. I think that it would be difficult, if not impossible, to explain convincingly to anyone who is not a lawyer why the pursuers should be required to raise two separate actions to obtain, on the one hand, a finding that the erection should not be there and, on the other hand, an order for their removal. If the defenders' contention were correct the pursuers would have to raise an ordinary action for declarator and interdict and a summary cause for the removal of the offending buildings etc. Thus immediately there would be additional procedure making additional demands on court time and laying additional expense on the parties".

20. Having regard to the arguments and authorities and the interpretation of the statutory provisions I was urged to allow the appeal, recall the sheriff's interlocutor and grant decree as craved.

21. There was a discussion on the matter of expenses. The sheriff had made a finding of no expenses due to or by as this was an undefended cause. Although the appellants suggested that they should be awarded expenses they did not seek to press their claim for the expenses of the appeal.

DECISION

22. The starting point with this appeal is the sheriff's decision of 9 September 2011. In her note the sheriff, after considering section 36(1) of the 2001 Act; section 35(1) of the Sheriff Courts (Scotland) Act 1971, Macphail at paragraphs 23.11 and 12 and selected paragraphs of the Scottish Law Commission's Report on the Recovery of Possession of Heritable Property 1989 makes the following observation at page 4 of the Note:-:

"However the difficulty for the pursuers in this case, in my opinion, is that the intention of Parliament, presumably being aware not only of the observations of the SLC but also the provisions of the 1971 Act, was that an action for recovery of possession of property subject to a Short Scottish Secure Tenancy required to proceed by way of summary cause. The provision of s36(1) of the 2001 Act is mandatory. An action for recovery of possession with an additional crave for payment of a sum in excess of £5,000 falls out with the definition of a summary cause." and further on:

"In my opinion, however, where a statute requires that proceedings for recovery of possession of heritable property be by summary cause the addition of a crave which would not be competent as a summary cause does not mean that it is competent to proceed by way of an ordinary action even to avoid a multiplicity of processes. It would be open to the pursuers to combine with the action for recovery of possession a claim for payment of a sum not exceeding the summary cause limit." and finally on page 5:

"For the foregoing reasons and on the basis of the material placed before me I have come to the conclusion that to raise an action for recovery of possession of heritable property in terms of s36 of the Housing (Scotland) Act 2001 other than by way of summary cause is incompetent. Accordingly I propose to dismiss the action and in respect that the action was undefended will find no expenses due to or by either party."

23. Section 36(1) of the 2001 Act provides:

The landlord in a Short Scottish Secure Tenancy may raise proceedings by way of summary cause for recovery of possession of the house which is the subject of the tenancy".

Section 39 of the Sheriff Courts (Scotland) Act 1907 provides: that the procedure in all civil causes shall be conform to the rules of procedure set forth in the first schedule annexed to the Act. The rules of procedure are the Ordinary Cause Rules. This is subject to the provisions of any Act of Parliament in force after the passing of the 1907 Act.

24. I understand that the sheriff decided that s.36(1) provided the only mechanism for a landlord to recover possession of a house subject to a SSST. In that respect, she appears to have construed "may" as being directive given that this was the only gateway provided to a landlord to commence court proceedings and therefore "may" gave a discretion to a landlord only in respect of whether to raise such proceedings but did not then offer a choice of procedure.

25. Section 35 of the 1971 Act (as amended) defines summary causes. Section 35(1)(c) includes actions for recovery of possession of heritable - property, other than actions in which there is claimed in addition or as an alternative --- a decree for payment of money exceeding £5,000 in amount.

26. Macphail discusses in Chapter 23 (23.11 and 23.12) composite actions where the initial writ seeks a crave for a remedy which by statute is allocated to a particular form of process such as a summary cause or summary application and an additional or alternative crave which is incompetent in that form of process. The current case would appear to fit the scope of composite action. At paragraph 23.12 Macphail discusses the exception made in section 35(1)(c) as to a pecuniary crave exceeding the summary cause limit".

27. Macphail goes on to say, "its inclusion does not necessarily imply that it is incompetent to bring an ordinary action with a crave for recovery of possession and other craves beyond the scope of summary cause procedure, and there appears to be no useful purpose to be served by reading 35(1)(c) in that way".

28. The chapter in Macphail on summary cause procedure (31.265) supports what the author has already stated in Chapter 12.

29. Turning to the Housing (Scotland) Act 2001 reference is made to proceeding by way of "summary cause" in both sections 14 and 36. "Summary cause" is not defined in that Act. Accordingly, these provisions have to be read in conjunction with section 35(1) of the 1971 Act which does define "summary cause". This must be so as section 35(1) read to a conclusion states in the concluding part "and any reference in the following provisions of this Act, or in any other enactment (whether passed or made before or after the commencement of this Act) relating to civil procedure in the Sheriff Court, to a "summary cause" shall be construed as a reference to a summary cause within the meaning of this subsection." Read short section 35(1) says that the form of process to be known as the summary cause shall be used for all civil proceedings of one or other of the descriptions specified. The implication is that, as the proceedings in question do not fit one or other of these descriptions, it should proceed as an ordinary cause - see section 39 of the 1907 Act already referred to.

30. Clearly the current action does not fit with any of the descriptions of section 35(1) since it includes a crave for payment of money exceeding £5,000. Accordingly, in my view it is indeed competent to raise these proceedings as an ordinary action.

31. Section 36 of the 2001 Act states that the landlord may raise proceedings by way of summary cause. The wording of the statute must be given its ordinary meaning. "May" is an enabling or discretionary power it does not mean "must" and furthermore there is no basis upon which it should be construed as such or as being directive.

32. I can find no reason or basis for construing the word "may" as must. Furthermore I can find no basis for construing it as being "must" or directive and in doing so ignore the clear provisions of section 35(1) of the 1971 Act.

33. However, the reasoning of the sheriff as set out in her judgment appears to start with the assumption that the terms of section 36(1) of the 2001 Act are directive and indeed mandatory. It is my view that the sheriff has proceeded on the erroneous assumption that the terms of that section are indeed mandatory and this is evident from the passages from her judgment to which I have referred above.

34. In taking that view of the statute I consider that the sheriff fell into error.

35. In reaching this decision I have had due regard to the advantages of the summary cause procedure. Summary cause procedure confers certain benefits on both parties. It is generally less expensive to proceed by way of summary cause procedure. The advantages conferred on the tenant may be that a summary cause action in respect of recovery of possession of heritable property requires to call in court and therefore there may be an opportunity for the tenant, even if he has not complied with the procedural rules, to appear and state a defence.

36. On the other hand the ordinary cause procedure is arguably a more formal procedure however it still gives adequate opportunity to a defender to lodge a notice of intention to defend which is a relatively straightforward step. That said it is difficult to understand what the advantages may be of proceeding with two separate actions - one under summary cause procedure for recovery of possession and another for payment of rent arrears due to the landlord. The disadvantages of multiplicity of procedure is that this would inflict unnecessary cost and procedure on both parties. In my view this is undesirable as unnecessary cost and complexity diminishes public respect for our law and procedure.

37. Our system of civil justice should provide just decision making which is prompt and efficient. Procedural rules and efficiency in procedure are indeed only means to an end namely, the making of decisions that are indeed fair and just and that inspire public confidence in the law. I consider that it is desirable to adopt an approach to litigation which is purposive, practical and avoids unnecessary complexity. Likewise, multiplicity of actions should be avoided as this of necessity increases the cost of litigation to the parties. I endorse the opinion of Sheriff Principal Risk when he observed in the case of Milmor Properties Ltd v W and T Investment Co Ltd that it would be difficult if not impossible to explain convincingly to anyone who is not a lawyer why the pursuers should be required to raise two separate actions...thus immediately there would be additional procedure making additional demands on court time and laying additional expense on the parties".

38. It is however, also worth recording that it is not easy to understand the sheriff's decision to dismiss all craves of this action. By virtue of her own reasoning which involved proceeding by way of summary cause in respect of the craves for recovery and possession and removal and separately proceeding by way of ordinary cause in respect of payment of arrears it is difficult to explain her decision to dismiss the crave for payment and expenses. Without doubt the pursuers were entitled to decide whether to cap their recovery of rent arrears within the summary cause limit and proceed entirely by way of summary cause or instead, as in this case, proceed by way of ordinary cause and seek to recover in full the rent arrears. This is entirely a matter for the pursuers as landlords.

39. Finally, I will allow the appeal, recall the sheriff's interlocutor of 9 September 2011 and grant decree in absence together with the expenses previously minuted for. With regard to the expenses of the appeal process I will make a finding of no expenses due to or by given that the action is undefended.