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Journal
Repossession
the notices by recorded delivery, irrespective of whether actual service
results. The alternative for a creditor is to instruct sheriff officers to serve
these notices. It is difficult to criticise a creditor who so acts or, standing the
general confusion and the view of the Scottish Executive that this is valid, a
solicitor who advises his client to proceed in this manner. However, such a
course may give rise to further problems for the creditor and, it is
submitted, does not in fact cure any problems with service.
A rumour was advanced that emergency legislation was being rushed
through to remedy the alleged defect but that proved to be unfounded.The
Scottish Executive has said that there is no difficulty with the current
legislation and that no amendment legislation is being drafted or indeed
necessary. Clearly an authoritative ruling will be required before there is any
certainty.
Mark Higgins, a partner in Golds, has lectured widely on the 2001 Act to
amongst others the Council of Mortgage Lenders. He recently chaired The
Mortgage Law Conference 2002 organised by Central Law Training. He is the
author of Scottish Repossessions, to be published by W Green in May 2002.
notes ■ notes ■ notes ■ notes
1 S.19(6)
2 Chapter 5 of the Ordinary
Cause Rules.
3 in terms of the Summary Cause
Rules, Sheriff Court 1976 (S.I.
1976 No. 476), unless
declarator or certain other
craves are sought in which case
the Ordinary Cause Rules apply.
4 Ss.23(4) of the 1970 Act and
4(5) of the 2001 Act relate only
to service of Notices.
5 the MSP who introduced the
Bill which led to the 2001 Act.
6 s.19A(3) of 1970 Act, dealing
with calling-up notices, which is
applied to notices of default by
s.21(2A) the 1970 Act.
7 Form O6 of the First Schedule
to the Sheriff Courts (Scotland)
Act 1907 as inserted by S.S.I.
2002 No. 7.
8 although the Explanatory Notes
to the Act are quite clear that
the notices “will be sent by
recorded delivery”.
9 6 July 2001 unreported.
10 It is true that neither Forms E or
F will form the foundation for
the action (unlike the notice in
Kane or, for example, a calling-up
notice) but it is submitted that
the decision in Kane confirms
that, even for these forms, a
creditor may not choose a
method of service which is not
provided for in the Act.
11 It is certainly not appropriate to
proceed directly to sheriff
officer without first attempting
recorded delivery service,
standing the wording of
ss.19A(2) and 24(4) of the
1970 Act and s.4(4) of the
2001 Act.
12 see Maher & Cusine,The Law
and Practice of Diligence, (1st
ed., 1990), para. 12-18 citing
Fairbairn v Cockburn’s Trustees
1878 15 S.L.R. 705, though in
that case, only nominal damages
were awarded in a situation
where a party had been ejected
from premises under illegal
warrant.
13 Form O5A of the Ordinary
Cause Rules in relation to
actions under s.24 of the 1970
Act and Form 6B of the
Summary Applications Rules in
relation to actions under the
1894 Act or summary
applications under the 1970
Act, in terms of Rules 34.10(1)
of the Ordinary Cause Rules
and Rule 3.4.1 of the Summary
Applications Rules. If the
problem relates to a defect in a
notice of default, that may not
be fatal.
14 Macphail, Sheriff Court Practice
(2nd ed.), para. 6-04; Ordinary
Cause Rule 5.10; but
appearance in this context
means the lodging of a notice of
intention to defend: Cairney v
Bulloch 1994 S.L.T. (Sh. Ct.) 37.
Accordingly, this argument will
not be open to a creditor
where the applicant is simply
making an application for a
Section 2 Order.