North Lanarkshire Council v. Kenmure [2004] ScotSC 26 (02 April 2004)

North Lanarkshire Council v. Kenmure [2004] ScotSC 26 (02 April 2004)

William Kenmure was not a party to the proceedings within the meaning of Rule 24.1 of the Summary Cause Rules 2002 and thus was not entitled to seek recall of the decree; the Sheriff had no locus to recall the decree at his instance after proceedings were completed.

Source-derived case information.

Citation
[2004] ScotSC 26
Parties
Pursuer and Appellant: North Lanarkshire Council; Defender: Ian Kenmure; Respondent: William Kenmure
Jurisdiction
Scotland
Judgment Date
02 April 2004
Procedural Posture
Appeal / Judgment on Appeal
Outcome
appeal allowed
Legal Topics
Recovery of Possession, Qualifying Occupier, Recall of Decree, Summary Cause Rules, Housing (scotland) Act 2001
Housing Law Civil Procedure Recovery of Possession Qualifying Occupier Recall of Decree Summary Cause Rules Housing (scotland) Act 2001

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Parties

North Lanarkshire Council

Pursuer and Appellant

Ian Kenmure

Defender

William Kenmure

Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether a person not previously a party to proceedings (but claiming to be a qualifying occupier) can apply for recall of a decree under Rule 24.1 of the Summary Cause Rules 2002 after decree has been granted.
  2. 2 Whether the Sheriff had locus to recall the decree at the instance of William Kenmure.

Ratio Decidendi

William Kenmure was not a party to the proceedings within the meaning of Rule 24.1 of the Summary Cause Rules 2002 and thus was not entitled to seek recall of the decree; the Sheriff had no locus to recall the decree at his instance after proceedings were completed.

Court Disposition

appeal allowed

Orders

  • interlocutor of 20 November 2003 recalling the decree at the instance of William Kenmure is recalled
  • no expenses due to or by either party in respect of the appeal