NORTHERN ROCK ASSET MANAGEMENT & THE ROYAL BANK OF SCOTLAND PLC v. HELEN LOUISE MILLER & GRAEME McCONNELL [2012] ScotSC 28 (28 February 2012)

NORTHERN ROCK ASSET MANAGEMENT & THE ROYAL BANK OF SCOTLAND PLC v. HELEN LOUISE MILLER & GRAEME McCONNELL [2012] ScotSC 28 (28 February 2012)

The term 'default' in the context of the pre-action requirements under the 2010 Order and section 24A of the 1970 Act must be given the same meaning as in the enabling Act, i.e., default as defined in standard condition 9(1) (after expiry of a calling up notice). There is no contrary intention in the Order or Act to displace this technical meaning. Therefore, pre-action information must be provided as soon as reasonably practicable after statutory default, not merely upon falling into arrears. Non-compliance with this requirement renders the action incompetent.

Citation
[2012] ScotSC 28
Parties
Pursuer: Northern Rock (Asset Management) plc; Pursuer: The Royal Bank of Scotland Plc; Defender: Helen Louise Millar; Defender: Graeme McConnell
Jurisdiction
Scotland
Judgment Date
28 February 2012
Procedural Posture
Repossession Action (standard Security Enforcement) / Debate on Competency (preliminary Legal Issue)
Outcome
Actions dismissed as incompetent (Northern Rock v Millar); craves 1 and 2 refused (RBS v McConnell); further procedure and expenses to be addressed at later hearing.
Legal Topics
Repossession, Standard Security, Pre Action Requirements, Statutory Interpretation, Default Under Security
Property Law Civil Procedure Mortgage Law Repossession Standard Security Pre Action Requirements Statutory Interpretation Default Under Security

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Parties

Northern Rock (Asset Management) plc

Pursuer

The Royal Bank of Scotland Plc

Pursuer

Helen Louise Millar

Defender

Graeme McConnell

Defender

Procedural Posture

Repossession Action (standard Security Enforcement) / Debate on Competency (preliminary Legal Issue)

Legal Issues

  1. 1 What is the correct statutory meaning of 'default' for the purposes of pre-action requirements under the Home Owner and Debtor Protection (Scotland) Act 2010 and related Orders?
  2. 2 Does non-compliance with the timing of pre-action information provision render the action incompetent?

Ratio Decidendi

The term 'default' in the context of the pre-action requirements under the 2010 Order and section 24A of the 1970 Act must be given the same meaning as in the enabling Act, i.e., default as defined in standard condition 9(1) (after expiry of a calling up notice). There is no contrary intention in the Order or Act to displace this technical meaning. Therefore, pre-action information must be provided as soon as reasonably practicable after statutory default, not merely upon falling into arrears. Non-compliance with this requirement renders the action incompetent.

Court Disposition

Actions dismissed as incompetent (Northern Rock v Millar); craves 1 and 2 refused (RBS v McConnell); further procedure and expenses to be addressed at later hearing.

Orders

  • Sustains defender's first plea in law and dismisses the action (B 2832/11).
  • Repels pursuer's pleas (B 2832/11).