Friday 3 May 2013

Sheriff Principal rules 'sheriff went too far too quickly by granting decree': Bank of Scotland v. Gallacher judgment

Sheriff Principal Bowen Q.C. has ruled that a sheriff at Glasgow Sheriff Court 'went too far too quickly by granting decree on the basis of the information he had before him'.

In the case of Bank of Scotland v. Gallacher, the defender's solicitor has sought a continuation, which was refused and had thereafter sought to state a defence and fix an evidential hearing; the sheriff had refused to fix a proof and proceeded to grant decree on the information before him, which included undisputed mortgage arrears of over £18,000.

The defender's solicitor had argued that the court at first instance had failed to properly take into account certain factors which he was required to do by statute before he proceeded to exercise his discretion. It was argued that the sheriff had proceeded to grant decree on the basis of certain assumptions, when he ought to have fixed an evidential hearing to reach a proper determination of questions of fact. Nothing had been said to the sheriff about the ability of the defender to find alternative accommodation (one of the factors in s.24(7) of the Conveyancing and Feudal Reform (Scotland) Act 1970).

The Sheriff Principal had sympathy with the view that the circumstances as disclosed were sufficient to raise substantial doubt as to whether there was any real prospect of the defender meeting his obligations under the standard security within a reasonable time. But the Sheriff Principal said 'I am clear that the requirement to "have reagrd to" the ability of the defender to secure alternative accommodation cannot be met by a lack of information or the absence of a request for a continuation to secure accommodation ... The provision of [the ability of the debtor and any other person residing at the security subjects to secure reasonable alternative accommodation, 24(7)(e), 1970 Act] is, however, an important one to which more than lip service should be paid'.

Agents for the pursuers were Irwin Mitchell Solicitors - Ms Scott; while the defender was represent by Govan Law Centre - Mr Dailly. The judgment is available here as a PDF.

No comments:

Post a Comment