Thursday 11 April 2013

Court rules Interpretation & Legislative Reform (Scotland) Act 2010 does not apply to Scottish PAR, as repossession action dismissed as incompetent

Sheriff Reid at Glasgow Sheriff Court has ruled that the Interpretation and Legislative Reform (Scotland Act 2010 (ILR(S) Act 2010) does not apply to The Applications by Creditors (Pre-Action Requirements) (Scotland) Order 2010 (SSI 2010/317 - the 'PAR')) in finding that a lender had raised incompetent mortgage repossession proceedings which did not comply with the Scottish PAR, and fell to be dismissed.

In a very thoughtful and complex judgment in the case of FirstPlus Financial Group plc v. Pervez, Sheriff Reid explains how the term 'default' as it appears in the PAR must bear the same meaning as it does in the relevant primary legislation - the Conveyaning and Feudal Reform (Scotland) Act 1970 and the Heritable Securities (Scotland) Act 1894. This was necessary in terms of section 11 of the Interpretation Act 1978.

In so doing, the court preferred the construction of Sheriff Deutsch in the cases of NRAM, Santander, and Nationwide Building Society v. Doyle and four others (cases where GLC acted for all defenders) and not the approach that Sheriff Bicket took at Hamilton Sheriff Court in the case of Accord Mortgages v. Dickson, which GLC believes was wrongly decided in relation to Sheriff Bicket holding that the ILR(S) Act 2010 applied to the PAR which led to him not following the decisions of NRAM v. Millar and RBS plc v. McConnell (cases where GLC acted for all defenders).

The judgment in Pervez examines many other important issues in relation to Scottish repossession law, and clarifies the proper statutory construction that lenders should apply to the PAR. The case of Pervez represented a strategic attempt by Optima Legal - a top 100 UK firm - to challenge the ratio of Sheriff Deutsch's judgment in NRAM v Millar, which had been appealed to the Inner House by NRAM but then subsequently dismissed with expenses in favour of the defender.

The pursuer in the case of Pervez was represented by Mr Gannon of Optima Legal (Glasgow), and the Mr Pervez was represented by GLC's Principal Solicitor, Mike Dailly. FirstPlus Financial Group plc
is a subsidiary company of Barclays Bank plc.

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