West of Scotland Housing Association Ltd v Daly ? Glasgow Sheriff Court, 23rd November 2009

The Pursuers/Respondents raised an action for recovery of possession of heritable property and obtained Decree in absence against the Defender/Appellant. A Minute for Recall of the Decree was lodged on the Defender's behalf in terms of Rule 24.1 of the Summary Cause Rules 2002. The Defender did not appear at the Hearing that was subsequently fixed and the Sheriff refused the application for want of insistence. The Pursuers then tried to enforce the Decree and the Defender lodged a further Minute for Recall. At the Hearing in relation to the second Minute, the Sheriff refused the Minute as incompetent and the Defender appealed that decision. Both parties agreed that the first interlocutor refusing the Minute for Recall has been incompetent as, even in the absence of the Defender, the Sheriff should have granted the application and recalled the Decree in view of the peremptory terms of Rule 24.1(7), which provides that, at the Hearing fixed under Rule 24.1(5), the Sheriff "shall recall the Decree". The parties could not agree on the effect of the incompetent interlocutor, however. The Pursuers simply argued that the Sheriff's decision to refuse second Minute for Recall of Decree as incompetent had been correct. The Defender attempted to persuade the Sheriff Principal that the terms of Rule 24.1(1), which state that "a party may apply for recall...on one occasion only" should be interpreted as meaning that a party could obtain the Recall of a Decree on only one occasion. The Defender's argument was that there had been no application for Recall until the Minute applying for Recall had actually been granted. The Sheriff Principal had to decide whether the Defender's interpretation of the Rule was correct.