INVERCLYDE COUNCIL V JOHN F. MCCLOSKEY T/A PRINCE OF WALES BAR [2014] ScotSC 103 (23 December 2014)

INVERCLYDE COUNCIL V JOHN F. MCCLOSKEY T/A PRINCE OF WALES BAR [2014] ScotSC 103 (23 December 2014)

The sheriff was entitled to grant summary decree as the appellant had no substantive defence, the notice of irritancy complied with statutory requirements, and the omission to recall the sist was a clerical error that could be corrected on appeal. The requirements of section 4 of the 1985 Act do not extend to specifying the period from which arrears arise.

Citation
[2014] ScotSC 103
Parties
Pursuer/respondent: Inverclyde Council; Defender/appellant: John F. McCloskey t/a Prince of Wales Bar
Jurisdiction
Scotland
Judgment Date
23 December 2014
Procedural Posture
Civil Appeal / Appeal From Summary Decree in Sheriff Court
Outcome
Appeal refused; interlocutor of sheriff adhered to; interlocutor of 2 June modified to record recall of sist; expenses reserved.
Legal Topics
Irritancy of Lease, Summary Decree, Notice Requirements, Recall of Sist, Procedural Fairness
Landlord and Tenant Civil Procedure Irritancy of Lease Summary Decree Notice Requirements Recall of Sist Procedural Fairness

Case Brief

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Parties

Inverclyde Council

Pursuer/respondent

John F. McCloskey t/a Prince of Wales Bar

Defender/appellant

Procedural Posture

Civil Appeal / Appeal From Summary Decree in Sheriff Court

Legal Issues

  1. 1 Whether the sheriff erred in granting summary decree without recalling the sist
  2. 2 Whether the notice of irritancy complied with statutory requirements under section 4 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985
  3. 3 Whether proper notice was given for the summary decree motion

Ratio Decidendi

The sheriff was entitled to grant summary decree as the appellant had no substantive defence, the notice of irritancy complied with statutory requirements, and the omission to recall the sist was a clerical error that could be corrected on appeal. The requirements of section 4 of the 1985 Act do not extend to specifying the period from which arrears arise.

Court Disposition

Appeal refused; interlocutor of sheriff adhered to; interlocutor of 2 June modified to record recall of sist; expenses reserved.

Orders

  • Recall the sist granted 29 July 2013 between the words 'Defender' and 'Ordains' in the interlocutor of 2 June
  • Refuse the appeal and adhere to the interlocutor of the Sheriff dated 7 July 2014