West Of Scotland Housing Association Ltd v. Daly [2009] ScotSC 45 (23 November 2009)

West Of Scotland Housing Association Ltd v. Daly [2009] ScotSC 45 (23 November 2009)

Lodging a minute for recall constitutes making an application under Rule 24.1; a party is entitled to apply for recall only once per action, regardless of whether the application is granted or the applicant appears at the hearing. The sheriff was correct to refuse the second minute for recall as incompetent.

Citation
[2009] ScotSC 45
Parties
Respondents & Pursuers: West of Scotland Housing Association Ltd; Appellant & Defender: Robert Daly
Jurisdiction
Scotland
Judgment Date
23 November 2009
Procedural Posture
Appeal / Judgment on Appeal From Sheriff's Refusal of Minute for Recall
Outcome
Appeal refused
Legal Topics
Recall of Decree, Summary Cause Procedure, Rent Arrears, Heritable Property Possession, Legal Aid Expenses
Civil Procedure Landlord and Tenant Recall of Decree Summary Cause Procedure Rent Arrears Heritable Property Possession Legal Aid Expenses

Case Brief

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Parties

West of Scotland Housing Association Ltd

Respondents & Pursuers

Robert Daly

Appellant & Defender

Procedural Posture

Appeal / Judgment on Appeal From Sheriff's Refusal of Minute for Recall

Legal Issues

  1. 1 Whether a party may apply for recall of a decree on more than one occasion under Rule 24.1 of the Summary Cause Rules 2002
  2. 2 Whether the refusal of the first minute for recall for want of insistence precludes a second application for recall
  3. 3 Proper interpretation of 'application' under Rule 24.1

Ratio Decidendi

Lodging a minute for recall constitutes making an application under Rule 24.1; a party is entitled to apply for recall only once per action, regardless of whether the application is granted or the applicant appears at the hearing. The sheriff was correct to refuse the second minute for recall as incompetent.

Court Disposition

Appeal refused

Orders

  • Appellant and defender found liable as an assisted party to the respondents and pursuers in the expenses of the cause
  • Liability for expenses modified to nil in terms of Section 18(2) of the Legal Aid (Scotland) Act 1986