Cumbernauld Housing Partnership Ltd (t/a Sanctuary Cumbernauld) v Davies [2015] ScotCS CSIH_22 (18 March 2015)

Cumbernauld Housing Partnership Ltd (t/a Sanctuary Cumbernauld) v Davies [2015] ScotCS CSIH_22 (18 March 2015)

The obligation to pay factoring fees and costs is subject to the five-year negative prescription under the 1973 Act, as it falls within obligations to pay costs under section 12 of the Tenements (Scotland) Act 2004. Registration of a section 12 notice does not interrupt prescription. Payments made by the defender in November 2010 constituted a relevant acknowledgement for sums not already prescribed. The pursuers' business records and evidence were sufficient to establish the sums due for the unprescribed period. No new contract to pay the full outstanding sum was established in October or November 2010.

Citation
[2015] ScotCS CSIH_22
Parties
Pursuers and Respondents: Cumbernauld Housing Partnership Limited trading as Sanctuary Cumbernauld; Defender and Appellant: Janice Davies
Jurisdiction
Scotland
Judgment Date
18 March 2015
Procedural Posture
Civil Appeal (debt Recovery) / Appeal From Sheriff Principal to Inner House, Court of Session
Outcome
Appeal allowed in part; interlocutor of sheriff principal recalled; decree for payment of reduced sum substituted.
Legal Topics
Prescription (limitation of Actions), Tenement Management, Debt Recovery, Title to Sue, Acknowledgement of Debt
Property Law Contract Law Civil Procedure Prescription (limitation of Actions) Tenement Management Debt Recovery Title to Sue Acknowledgement of Debt

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Parties

Cumbernauld Housing Partnership Limited trading as Sanctuary Cumbernauld

Pursuers and Respondents

Janice Davies

Defender and Appellant

Procedural Posture

Civil Appeal (debt Recovery) / Appeal From Sheriff Principal to Inner House, Court of Session

Legal Issues

  1. 1 Whether the pursuers' claim for factoring fees and costs is extinguished by prescription under the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether registration of a notice under section 12 of the Tenements (Scotland) Act 2004 constitutes a relevant claim interrupting prescription
  3. 3 Whether payments made by the defender constituted a relevant acknowledgement of the debt

Ratio Decidendi

The obligation to pay factoring fees and costs is subject to the five-year negative prescription under the 1973 Act, as it falls within obligations to pay costs under section 12 of the Tenements (Scotland) Act 2004. Registration of a section 12 notice does not interrupt prescription. Payments made by the defender in November 2010 constituted a relevant acknowledgement for sums not already prescribed. The pursuers' business records and evidence were sufficient to establish the sums due for the unprescribed period. No new contract to pay the full outstanding sum was established in October or November 2010.

Court Disposition

Appeal allowed in part; interlocutor of sheriff principal recalled; decree for payment of reduced sum substituted.

Orders

  • Recall the interlocutor of the sheriff principal.
  • Decree for payment by the defender to the pursuers of £3620.88 with interest at 8% per annum from 15 April 2011 until payment.