Tuesday, 5 March 2013

Sheriff Principal rules on proper approach to section 16(3) factors in Scottish eviction case callings

Sitting at Glasgow Sheriff Court today, Sheriff Principal Bowen QC has recalled a sheriff's decree for ejection and payment in an action of recovery of hertiable possession upon the basis that the court had taken the wrong approach to section 16(3) of the Housing (Scotland) Act 2001, and did not have a sufficient factual basis to determine the question of whether it was reasonable to evict the tenant. 

In the case of Glenoaks Housing Association v. DF the sheriff had granted decree after a sist was recalled on the hearing of an incidental application by the landlord, and the pursuers had advised that arrears had risen to almost £3,000. The defender had sought to continue the cause to resolve a housing benefit application and the pursuer had argued that housing benefit was not particulary relevant because the tenant had failed to provide relevant information to enable the claim to be determined. This was disputed by the tenant's solicitor who requested a continuation to resolve this key issue.

The sheriff at first instance had refused to grant a continuation or fix a proof and held that the facts were 'sufficiently agreed'  in terms of SCR 8.3 to enable him to dispose of the case on the merits at the hearing of the incidental application. At the appeal hearing, the defender and appellant had argued that sheriff had failed to properly have regard to the factors set out in section 16(3) of the 2001 Act and was wrong in law to have held the facts were 'sufficiently agreed'.

The Sheriff Principal held that there was substance in the appellant's arguments in terms of the proper approach to the evidential factors in section 16(3) and questioned whether the facts had been sufficient agreed, and doubted there was a sufficient factual basis to determine the reasonableness of granting decree; and therefore recalled the decree, allow 14 days for a Supplementary Note of Defence and fixed a diet of proof, reserving the question of expenses.

The cases of City of Edinburgh Council v. Forbes 2002 Hous LR 61, Northern Rock (AM) plc v. Youngson 2012 Hous LR 100 and Henderson v. Nova Scotia Limited (2006) UKHL 21 were considered. The pursuers' were represented by Mr Bauld of TC Young in the appeal hearing, and the defender by GLC's Mike Dailly and Laura Simpson.

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