City Of Edinburgh Council v. Porter [2004] ScotSC 32 (04 May 2004)

City Of Edinburgh Council v. Porter [2004] ScotSC 32 (04 May 2004)

A qualifying occupier who was not originally a party to the action is entitled to apply for recall of a decree under rule 24.1 of the Summary Cause Rules, as the rule should be interpreted to include such persons, and the applicant had not previously applied for recall.

Citation
[2004] ScotSC 32
Parties
Pursuer: City of Edinburgh Council; Defender: Fiona Porter; Applicant/qualifying Occupier: Gary McKie
Jurisdiction
Scotland
Judgment Date
04 May 2004
Procedural Posture
Summary Cause for Recovery of Heritable Property / Hearing on Incidental Application and Minute for Recall
Outcome
application for recall granted; applicant to be sisted as a party
Legal Topics
Scottish Secure Tenancy, Recovery of Possession, Recall of Decree, Qualifying Occupier Rights
Housing Law Civil Procedure Scottish Secure Tenancy Recovery of Possession Recall of Decree Qualifying Occupier Rights

Case Brief

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Parties

City of Edinburgh Council

Pursuer

Fiona Porter

Defender

Gary McKie

Applicant/qualifying Occupier

Procedural Posture

Summary Cause for Recovery of Heritable Property / Hearing on Incidental Application and Minute for Recall

Legal Issues

  1. 1 Whether a qualifying occupier who was not originally a party can apply for recall of decree under rule 24.1 of the Summary Cause Rules
  2. 2 Whether the decree granted was under rule 7.1 and thus subject to recall
  3. 3 Whether the applicant had been properly served notice under section 14(4) of the Housing (Scotland) Act 2001

Ratio Decidendi

A qualifying occupier who was not originally a party to the action is entitled to apply for recall of a decree under rule 24.1 of the Summary Cause Rules, as the rule should be interpreted to include such persons, and the applicant had not previously applied for recall.

Court Disposition

application for recall granted; applicant to be sisted as a party

Orders

  • Minute for recall granted
  • Applicant (Gary McKie) to be sisted as a party and called upon to state his defence