Brown & Anor, Re Application For Interdict & Interim Interdict [2000] ScotCS 328 (20 December 2000)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Scottish Court of Session Decisions You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Brown & Anor, Re Application For Interdict & Interim Interdict [2000] ScotCS 328 (20 December 2000) URL: https://www.bailii.org/scot/cases/ScotCS/2000/328.html Cite as: [2000] ScotCS 328 [ New search ] [ Help ] OUTER HOUSE, COURT OF SESSION P1223/00 OPINION OF LORD CLARKE in the petition of MR JOHN BROWN and MRS KIRSTY JANE BROWN Petitioners: for INTERDICT AND INTERIM INTERDICT ________________ Petitioners: First Named Petitioner (Party) Respondents: Arthurson; Simpson & Marwick, WS 21 December 2000 [1] This matter came before me on 21 December 2000. The first- named petitioner, appearing on his own behalf, on that occasion moved me to pronounce interim interdict, before calling of the petition, to prevent the removing or eviction of himself and the second-named petitioner and their dependants by the respondents, South Lanarkshire Council, from the accommodation presently occupied by them, pending the outcome of an action for declarator and damages, at the instance of the first-named petitioner against the respondents, currently pending before the Sheriff Court at Hamilton. The second-named petitioner did not appear. The first-named petitioner did not inform me that he had her authority to appear, or to speak, on her behalf. The respondents were represented by Mr Arthurson, Advocate. [2] The petition was not signed by either counsel or agent. The petitioners had obtained leave to proceed from the Lord Ordinary, in terms of R. C. 42(5), without such signature. The petition is signed by the first named petitioner, but not by the second-named petitioner. [3] The petition narrates, inter alia, that on or about 13 November 2000, the respondents issued a notice to quit requiring that the petitioners remove from the accommodation they present occupy, by 14 December 2000. As I understood the position, it is against action on reliance of that notice to remove that the present petition is directed. The case came before Lady Paton on 14 December 2000 when the first-named petitioner appeared and the respondents were represented by counsel. Her Ladyship continued the motion for interim interdict made on that occasion for one week on an undertaking given by the respondents that "they would take no steps in respect of the notice to quit anent Flat 3/2, 2 Kirkconnel Drive, Spittal, Rutherglen, G73 until motion heard". [4] The first-named petitioner, in addressing me, said that the background to the petition went back for a number of years during which, as he put it, his family had been "persecuted and harassed by the respondents". He informed me that the action which was presently pending before the Sheriff Court related to these matters and was at the adjustment stage. He said that he had enrolled a motion in the Sheriff Court to sist the action to enable him to seek legal aid. In the writ, in the Sheriff Court action, which had been raised in July 2000, he sought declarator that he and the second named petitioner had been homeless since 1996. The first-named petitioner explained that he and the second-named petitioner were given temporary accommodation by the respondents at their present residence on 12 October 1999. In 1995 the respondents had issued proceedings against him for non-payment of rent in respect of accommodation let to him, at the time, by the respondents at Argyll Court, Blantyre. In April 1996 the respondents had served an abandonment notice in terms of the Housing Act. The first-named petitioner informed me that he responded to this notice by a letter in which he said that the subjects were his principal home and that he and his family intended to continue to occupy them. In September 1996, while he and his family were away from the accommodation, the respondents, he claimed, obtained entry to the subjects, removed the furniture and boarded up the subjects. The first-named petitioner said that he consulted a solicitor at that time about his position, but he did not advise me of what advice, if any, he obtained from that solicitor. He and the second-named petitioner took up what he described as a short-time tenancy in September 1996 which they continued with until 6 October 1999, when as he put it, "his wife presented herself to respondents as a homeless person". The second-named petitioner was given what he described as a "short term tenancy" by the respondents in respect of the subjects in which he and she presently reside and to which the present proceedings relate. Those subjects are furnished by the respondents. I should say, at this stage that it was explained to me by counsel for the respondents that the accommodation which the petitioners are presently occupying, and which they have occupied since October 1999, form part of a stock of such housing kept by the respondents for short-term occupation by homeless persons and in cases of emergency. Homeless persons are housed in such accommodation only until suitable unfurnished, permanent accommodation becomes available for them. The first-named petitioner went on to say that in January 2000 the respondents contacted the second-named petitioner to inform her that because she had failed to take up an offer of suitable permanent accommodation she was required to remove within two days from the temporary accommodation. The second-named petitioner had not received that offer as it had been sent to the wrong address. The second-named petitioner thereafter attended a meeting with officials from the respondents' Housing Department. Subsequently another offer of accommodation was made to the second-named petitioner by the respondents. The first-named petitioner said that both of these offers, which had been made, were of accommodation located in "undesirable streets". He said that he believed these offers were made maliciously. The offers were rejected. The matter was then to go through the respondents' appeals procedures. The second-named petitioner had expected that she would, at some stage, have her case reviewed by the whole council. On 12 October, 2000, however, the second-named petitioner received a communication from the respondents informing her that the appeals procedures had decided that a final offer of accommodation should be made. This offer was made on 13 October 2000. The first-named petitio [5] Counsel for the respondents submitted, in response, that, in the first place, the first-named petitioner had presented no basis for his having any title to bring the present petition. The accommodation, to which the proceedings relate, was let to the second-named petitioner alone, she being the person who had presented herself to the respondents as being homeless. The notice of removal to which the proceedings relate was served on the second-named petitioner and her alone. The first-named petitioner's complaints about what had occurred in 1996 and prior to that were the subject of the Sheriff Court action at his instance. The furnished accommodation, to which the present proceedings relate, had been let by the respondents to the second-named petitioner on a short-term basis, until permanent unfurnished accommodation was offered to her. Counsel for the respondents placed before me a number of documents, which are No 7 of process, which set out the background leading up to the serving of the notice to remove. The earliest of these documents (7/11 of process) is a housing application form, dated 7 October 1999, in the name of the second-named petitioner alone. In reply to a request in that form, which is the following terms: "'Name everyone who is going to be living with you, starting with yourself'" the second named petitioner, after naming herself, set out the names of four persons, described respectively as her step-son, daughter and two sons. There was no mention of the first-named petitioner. In response to a question "Area that you will consider a house in", the second-named petitioner wrote "Anywhere within Cambuslang/R/glen". Under a column headed "List here any parts or streets in the area that would be unsuitable" the second-named petitioner wrote "Not Whitlawburn". Towards the end of the standard form, the second-named petitioner wrote as follows: "Currently staying with various relatives, but only temp". The document which is 7/10 of process, which is described as an application by the second-named petitioner, to the respondents, as a homeless person, and which is dated 8/10/99 there is attached a note of an interview with the second-named petitioner, which bears to have been certified by her as being true and accurate. In that note it is stated inter alia , "Kirsty presented at office stating that she was homeless because she had to give up a private let in Central Avenue when her ex-husband walked out on her. She had been staying at his mother's house care of 9 Winning Court, Blantyre for about one week, but she was unable to keep her any longer. Kirsty was going to stay with a friend at 72 Abbotsford Avenue, Hamilton over the weekend". It was following on that interview that the second-named petitioner, her children and step-son were provided with the temporary accommodation to which the present proceedings relate. On 17 November 1999, solicitors acting on behalf of the second-named petitioner wrote (7/1 of process) to the respondents in the following terms: "We act on behalf of Mrs Kirsty Brown, who is currently residing in the Homeless Unit at Flat 3/2, 2 Kirkconnel Drive, Spittal, Rutherglen. Our client advises that she separated from her husband in July 1999 and that there is no prospect of a reconciliation. She requires permanent accommodation for herself and her four children aged 13, 5, 2 and 11 months. We trust this letter is sufficient to enable our client to secure such accommodation. If however you require any further information, please do not hesitate to contact us." [6] The respondents then made an offer of permanent accommodation to the second-named petitioner at 107 Galloway Drive, Rutherglen. The respondents received no response to that offer. As I have noted above, the first-named petitioner had explained to me that that offer was not received by the second-named petitioner. Since the respondents had not received a reply to that offer they wrote to the second-named petitioner on 5 January 2000, informing her that since she had not responded to the offer she was required to vacate the temporary accommodation she was occupying within 28 days. She was also informed that she had a right of appeal against this decision. On 10 January 2000 the second-named petitioner wrote to the respondents (7/3 of process) informing them that she had rejected the offer of accommodation at 107 Galloway Drive and that she had no intention of vacating the temporary accommodation. In the said letter the second-named petitioner also wrote, "As previously advised also, it is hoped that consideration may also be given to the fact that I have two children who presently attend local schools and, for the present time at least, it is hoped that it would not be necessary to remove them from their present education establishments purely by virtue of a charge of address and consideration of these points in the event of a future offer of housing would be appreciated". In the light of that letter the respondents did not proceed to act upon the notice to remove of 5 January 2000, which they had sent to the second-named petitioner. The second-named petitioner had, in fact, attended an interview on 6 January 2000 with a representative of the respondents' housing department. At that interview she stated that she would only consider an offer of accommodation within the Rutherglen area. Galloway Drive is within the Rutherglen area. [7] A further offer of permanent accommodation was made to the second-named petitioner by the respondents this time at 53 Galloway Drive, Rutherglen. It was not suggested by the first-named petitioner that this offer was not received by the second-named petitioner. She did not respond to it, however, and, accordingly, on 20 March 2000 the respondents served on her a notice to vacate the temporary accommodation within 28 days. By a letter dated 22 March 2000 (7/5 of process) the second-named petitioner informed the respondents that "this offer does not come within the boundaries requested by me". She intimated that her letter should be deemed as a refusal of the offer, and, if considered appropriate, as an appeal against that offer. An appeal was heard by an official of the respondents, namely Miss Moira McCormack, Team Leader, Estate Services. The appeal was refused, but the second-named petitioner was informed that she had the right to a second stage appeal (7/6 of process). On 21 April 2000 the second-named petitioner completed a document described as "Appeals pro forma". She stated in that form that the full reasons for her appeal were, "I have no local connection. I did not specify Rutherglen area on my form. I believe the decision to offer this accommodation to be a malicious act - (see attached sheet for details)". On 26 April 2000 the second-named petitioner wrote to the respondents (7/7 of process) advising them that papers for judicial review proceedings had been prepared and were ready for lodging and signetting at the Court of Session. A second stage appeal was heard by the respondents. On 18 May 2000 the respondents' Area Housing Manager, David Smith, wrote to the second-named petitioner (7/8 of process) informing her that the appeal had failed. In that letter Mr Smith gave full and clear written reasons for the respondents' decision. These included, inter alia , that in her initial application for council house accommodation, completed on 7 October 1999, the second-named petitioner had said that she would consider "anywhere within Cambuslang/Rutherglen except Whitlawburn". Galloway Drive is in the Fernhill area of Rutherglen. Mr Smith went on to remind the second-named petitioner, that at her supplementary homeless interview, on 6 January 2000, she had stated that she would in fact only consider accommodation in Rutherglen. He considered that the fact that she had been in residence in temporary accommodation in Rutherglen since October 1999 reinforced her local connection to that area. She had never given any previous indication that she would not consider accommodation in the Fernhill District of Rutherglen. Mr Smith concluded, "I would therefore advise that your appeal against the offer of housing made to you of 53 Galloway Drive, Fernhill, Rutherglen was dismissed for the reasons of policy and procedure referred to above. Therefore the council has discharged its duty under the requirements of the Housing (Scotland) Act 1987, Part II.". The second-named petitioner was informed that she had a final right of appeal to the Area Head of Housing and Technical Resources for Rutherglen/Cambuslang and that, in the meantime, the temporary accommodation would remain available to her, pending the outcome of any such appeal. Some further communings between the respondents and the second-named petitioner appear to have occurred thereafter and these culminated in the respondents making a further offer of accommodation to the second-named petitioner. This offer was made on 16 October 2000. The offer was of a four apartment house in Spittal Road, Rutherglen, which is in the same area as the accommodation to which the present proceedings relate. Were the second petitioner and her children to take up that accommodation, the children would be able to continue to attend the same schools as they do at present. This offer has not been taken up by the second-named petitioner nor has it been appealed against. The first-named petitioner apparently telephoned the respondents and informed them that the offer was not to be accepted and he threatened the respondents with an application for interdict. The second-named petitioner visited the respondents' Housing Department and said that she wished to change her selection of areas in which she would accept accommodation. Having made no fewer than three offers of secure and permanent accommodation to the second-named petitioner, the last of which was not appealed against, the respondents served on the second-named petitioner the notice to remove to which the present proceedings relate. [8] Counsel for the respondents submitted that the history of matters disclosed no relevant basis for the petition. The respondents had fulfilled their statutory duties, in the circumstances, in making the offers which they had made to the second-named petitioner. The petitioners had no right to continue to occupy the temporary accommodation, which was provided to the second-named petitioner for use only until permanent accommodation was found for her. The second-named petitioner had given no valid reasons for refusing the offers of permanent accommodation made to her, the last of which was in the area in which the temporary accommodation is located. The respondents had done all that was required of them in the circumstances and, indeed, more. Interim interdict should be refused. Since, however, it was so close to Christmas, the respondents undertook that they would not seek to remove the petitioners from the temporary accommodation until 14 January 2000. [9] I was satisfied that interim interdict should be refused. In the first place I had difficulty in seeing any basis for the first-named petitioner having any title to bring the petition, since the accommodation to which the proceedings relate is not accommodation which, on the face of things, he was provided with by the respondents. The notice to remove was not served on him. As I have already observed, the second-named petitioner did not appear and I was not provided with any evidence that the first-named petitioner was appearing or speaking on her behalf, or with her authority. In any event, I did not consider that what the first-named petitioner had submitted to me, nor what was said in the petition itself, disclosed any prima facie case of a threatened wrong by the respondents. The accommodation to which the present proceedings relate was provided to the second-named petitioner for a temporary purpose. She has been offered by the respondents no fewer than three houses. I was satisfied that nothing was said by the first-named petitioner, nor was there anything in petition, which revealed that, in making these offers the respondents were acting other than in the proper performance of their statutory duties, in terms of the relevant housing legislation, in particular sections 31 and 35 of the Housing (Scotland) Act 1987. Whatever grievance the first petitioner may consider that he has against the respondents in relation to past actings, in particular in the period 1995 to 1996, which are apparently to be aired in the Sheriff Court action, these did not, in my judgment, form any basis for the granting of interim interdict in the present proceedings. I, accordingly refused to grant interim interdict, in hoc statu, having the respondents' undertaking noted in the Minute of Proceedings. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotCS/2000/328.html