CITY OF EDINBURGH COUNCIL v. MR JAMES BURNETT [2012] ScotSC 37 (14 March 2012)

CITY OF EDINBURGH COUNCIL v. MR JAMES BURNETT [2012] ScotSC 37 (14 March 2012)

Section 36(1) of the Housing (Scotland) Act 2001 is permissive, not mandatory; where a monetary crave exceeds the summary cause limit, it is competent to proceed by ordinary action. The sheriff erred in construing the provision as mandatory and dismissing the action as incompetent.

Citation
[2012] ScotSC 37
Parties
Pursuer and Appellant: City of Edinburgh Council; Defender and Respondent: Mr James Burnett
Jurisdiction
Scotland
Judgment Date
14 March 2012
Procedural Posture
Ordinary Action (composite Action for Recovery of Possession and Payment of Arrears) / Appeal From Sheriff's Dismissal of Action as Incompetent
Outcome
Appeal allowed; sheriff's interlocutor recalled; decree in absence granted as craved; expenses of £395.46 awarded; no expenses due to or by in respect of the appeal.
Legal Topics
Short Scottish Secure Tenancy (ssst), Recovery of Possession, Summary Cause Vs Ordinary Action, Interpretation of Statutory Language ('may' Vs 'shall'), Composite Actions, Jurisdictional Limits for Monetary Claims
Landlord and Tenant Civil Procedure Short Scottish Secure Tenancy (ssst) Recovery of Possession Summary Cause Vs Ordinary Action Interpretation of Statutory Language ('may' Vs 'shall') Composite Actions Jurisdictional Limits for Monetary Claims

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

City of Edinburgh Council

Pursuer and Appellant

Mr James Burnett

Defender and Respondent

Procedural Posture

Ordinary Action (composite Action for Recovery of Possession and Payment of Arrears) / Appeal From Sheriff's Dismissal of Action as Incompetent

Legal Issues

  1. 1 Whether section 36(1) of the Housing (Scotland) Act 2001 mandates that actions for recovery of possession of SSSTs must proceed by summary cause
  2. 2 Whether an ordinary action is competent where the monetary crave exceeds the summary cause limit

Ratio Decidendi

Section 36(1) of the Housing (Scotland) Act 2001 is permissive, not mandatory; where a monetary crave exceeds the summary cause limit, it is competent to proceed by ordinary action. The sheriff erred in construing the provision as mandatory and dismissing the action as incompetent.

Court Disposition

Appeal allowed; sheriff's interlocutor recalled; decree in absence granted as craved; expenses of £395.46 awarded; no expenses due to or by in respect of the appeal.

Orders

  • Recall of sheriff's interlocutor of 9 September 2011
  • Grant of decree in absence as craved