Stirling Council v. Neil [2005] ScotSC 52 (15 July 2005)

Stirling Council v. Neil [2005] ScotSC 52 (15 July 2005)

The minute for recall is incompetent because the minuter was not a party to the proceedings and the decree for eviction was granted under rule 7.1, to which recall applies only for parties. The form of response related only to payment, not eviction, so the eviction decree was properly granted in absence of defence. The court cannot recall a decree at the instance of a non-party.

Citation
[2005] ScotSC 52
Parties
Pursuer: Stirling Council; Defender: Andrew Neil; Minuter (applicant for Recall): Mrs Janet Neil
Jurisdiction
Scotland
Judgment Date
15 July 2005
Procedural Posture
Heritable Summary Cause (eviction and Payment) / Hearing on Competency of Minute for Recall of Decree
Outcome
Minute of recall dismissed as incompetent.
Legal Topics
Recall of Decree, Summary Cause Rules, Qualifying Occupier Rights, Eviction Proceedings
Civil Procedure Landlord and Tenant Housing Law Recall of Decree Summary Cause Rules Qualifying Occupier Rights Eviction Proceedings

Case Brief

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Parties

Stirling Council

Pursuer

Andrew Neil

Defender

Mrs Janet Neil

Minuter (applicant for Recall)

Procedural Posture

Heritable Summary Cause (eviction and Payment) / Hearing on Competency of Minute for Recall of Decree

Legal Issues

  1. 1 Whether a qualifying occupier who was not a party to the original proceedings can competently apply for recall of decree under rule 24.1 of the Summary Cause Rules 2002
  2. 2 Whether the decree for eviction was granted under a rule to which recall applies (rule 7.1 or 8.2(5)-(7))
  3. 3 Whether the form of response lodged by the defender constituted a defence to the eviction claim

Ratio Decidendi

The minute for recall is incompetent because the minuter was not a party to the proceedings and the decree for eviction was granted under rule 7.1, to which recall applies only for parties. The form of response related only to payment, not eviction, so the eviction decree was properly granted in absence of defence. The court cannot recall a decree at the instance of a non-party.

Court Disposition

Minute of recall dismissed as incompetent.

Orders

  • Minute of recall at the instance of Mrs Janet Neil dismissed as incompetent.
  • Question of expenses reserved; parties to be heard on expenses on 2 August 2005 at 11 a.m.