Govan Housing Association -v- Thomas Kane (A763/01) * the pursuers marked an appeal to the Sheriff Principal, but subsequently abandoned this, with expenses awarded in favour of the defender (a diet of proof on the defender's counterclaim will take place in December 2001).

Sheriff's Note (Sheriff Johnston)

Glasgow Sheriff Court, 6 July 2001

Act - Pursuers - Stevenson, David Clapham Solicitors
Alt - Defender - Dailly, Govan Law Centre

I dismissed the principal action in this case. The defender took exception to the service of the Notice to Quit upon which the whole action is founded. He pointed out that the rules of the Sheriff Court require such notices to be served in terms of rule 34.8 of the schedule. That makes it clear that such notices require to be served by three categories of persons posting by recorded delivery and/or sheriff officers doing so by any method competent for the sheriff officer to serve a writ.

It was, said the defender's agent, the position that it was not open to any of the categories of person mentioned in 34.8.1 to serve the notice other than by recorded delivery. Mr Stevenson for the pursuers said that the word 'may' in the section brooked the possibility that there were other methods competent to serve such a notice and what was done in this case by introducing it into the defender's letterbox by an officer of the pursuers was sufficient.

I disagreed in that in my view the service of a notice to quit which is such a fundamental and important document for the purposes of recovery of heritable possession that it required to be served in the manner set out in 34.8 and that this did not brook any other method of service. So the options were, recorded delivery by any of the persons mentioned in 34.8.1 or sheriff officers.

In this case it was not sheriff officers who made the service and in my view it was therefore inept. Accordingly, the foundation for the action having been withdrawn it must fall, but the counter-claim still remains. I took the view that there was the bare bones of a right of action here although the defender's averments if true show that on the matter of proof the defender cannot succeed. The defender's agent to facilitate matters reduced the sum sued for to below the ordinary cause limit to enable a proof to be fixed and the matter to be dealt with.

Held: Defender's preliminary plea-in-law sustained; pursuers preliminary plea-in-law repelled and the eviction action dismissed; sum sued for amended from £1,750 to £1,499 and cause remitted back to summary cause procedure; proof on the defender's counter-claim allowed and assigned for 3 September 2001; expenses of the debate awarded against the pursuers.