Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS   Case Number: A4185/07
	Judgment by   SHERIFF PRINCIPAL MHAIRI M STEPHEN   in appeal by   MARK LORIMER, 2 Upper Tachbrook Street, London, SW1 1SH Pursuer and Respondent   against   ROY GRIFFITHS¸(Assisted Person), residing at Top Flat Left, 35 Jeffrey Street, Edinburgh, EH1 1DH Defender and Appellant   ___________________________

 

Act: Stalker, Advocate for the appellant

Alt: Burr, Advocate for the respondent

 

 

 

EDINBURGH, 30 August 2013

The Sheriff Principal, having resumed consideration of the cause, allows the appeal; recalls the sheriff's interlocutor of 21 December 2012; finds and declares that the defender and appellant has complied with condition (b) of Part (1) of the decree of this court dated 24 May 2011, thereafter, condition (a) of said decree having been obtempered timeously, discharges Part 1 of the decree of this court dated 24 May 2011; sanctions the cause as suitable for the employment of junior counsel; and finds the respondent liable to the appellant in the expenses of the minute procedure including this appeal, allows an account thereof to be given in and remitted to the Auditor of Court to tax and to report.

 

(signed) Mhairi M Stephen

 

NOTE:

1.              The appellant, Roy Griffiths, is the tenant and the respondent, Mark Lorimer, the landlord of the Top Flat Left at 35 Jeffrey Street, Edinburgh, EH1 1DH. The respondent's mother leased the flat at 35 Jeffrey Street, ("the subjects") to the appellant. The lease is a long one having been granted on 8 and 11 June 1984. A copy of the lease dated 8 and 11 June 1984 is lodged as production 5/1/1 of process. The lease was granted under the Rent (Scotland) Act 1984. It is now a statutory tenancy even though there may be a dispute as to when that may have occurred. It appears that there have been a number of long running disputes between the landlord and tenant involving both the level of and the payment of rent. There have also been difficulties between the parties relating to arrangements for and compliance with the parties rights and obligations under paragraph 12 of the lease. Paragraph 12 states:-

"The proprietor reserves the right to enter the flat on such occasions as the proprietor thinks fit during the tenancy to inspect the condition of the flat, decoration, paintwork and furnishings etc."

 

2.              In 2011 the pursuer and now respondent lodged an initial writ at this court seeking inter alia to establish his right to recover possession of the subjects and require the appellant to remove from the flat. The appellant had other pecuniary craves relating to arrears of rent and damages. The record in respect of these proceedings is No 48 of process and prior to proof parties entered into a joint minute of agreement (No 53 of process) which significantly resolved the matters in dispute and avoided the need for evidence to be led. On 24 May 2011 when the cause called for proof the sheriff interponed authority to the joint minute and discharged the diet of proof. For the purpose of the appeal only the first part of the decree of 24 May 2011 is important. The sheriff in terms of the joint minute granted decree ordaining the defender to remove from the premises but suspended execution of the court's order if the two suspensive conditions were fulfilled by the appellant (defender). Firstly, that the defender made payment to the pursuer of the sum of £17,471.12 being the rent arrears within 21 days of decree and secondly, that the defender allow "the pursuer and/or his agents, employees and contractors to carry out a full inspection of the flat for the purposes in clause 12 of the lease dated 8 and 11 June 1984 that inspection to take place, with time being of the essence, upon a minimum of seven days written notice being given at any time within three months of the date of decree hereof by the pursuer to the defender and any solicitors that he may have; and allows the pursuer and/or his agents, employees and contractors to carry out any work in terms of clause Thirteenth of said Lease which may require to be carried out arising out of said inspection and that within a reasonable time after the inspection;". A suspended decree is specifically permitted in terms of section 12(2) of the Rent (Scotland) Act 1984.

 

3.              It is beyond dispute that the rent arrears were settled timeously thus satisfying the first suspensive condition.

 

4.              The sheriff heard two days of proof on 2 November and 7 December 2012 on the appellant's minute (No 53 of process) and the respondent's minute (No 55 of process) for a finding of compliance/non-compliance with both suspensive conditions on rent and inspection. The record is No 61 of process. By interlocutor of 21 December 2012 the sheriff found and declared that the appellant had failed to comply with the second suspensive condition on the basis that the inspection which occurred at the subjects on 16 August 2011 did not constitute a full inspection of the flat in terms of condition (b) of the suspended decree dated 24 May 2011. It is against that interlocutor that this appeal lies.

 

5.              Despite the rather tense and protracted dispute between the parties the facts found by the sheriff were uncontroversial. Findings in Fact 7 and 8 record the inspection which took place on 16 August 2011. It is a matter of agreement that Mr Elliot, the electrician, was refused entry by the appellant. Albeit the sheriff records "the defender did not communicate an invitation to the electrician to return at a later time for a separate inspection" it is now a matter of agreement between parties to this appeal that prior to 16 August the appellant had intimated by e-mail to the respondent that he was happy to allow the electrician to inspect at another time (other than 16 August 2011) and that the appellant had proposed that the electrical inspection could be arranged for another time. As the sheriff records in Finding in Fact 9, the respondent made no request of the appellant to arrange any subsequent inspection by Mr Elliot or any other electrician. The appellant made no further proposal or invitation in respect of the re-attendance of the electrician. Nevertheless it was a matter of agreement that the appellant had proposed that the electrician's inspection could be arranged for another time. Accordingly, an important issue on appeal is whether the sheriff was correct in not discharging the decree based on the appellant's refusal to allow the simultaneous or composite inspection which the respondent sought.

 

APPELLANT'S SUBMISSIONS

6.              Mr Stalker addressed me fully on the grounds of appeal pointing out that the grounds had been amended and Ground 5 introduced a point of law which had not been argued before the sheriff. That ground of appeal relied on the decision of the House of Lords in Knowsley Housing Trust v White [2009] 1AC. Mr Stalker had given appropriate notice to counsel for the respondent that he proposed to amend to the effect that if the appellant fell short of full compliance by reason of refusing Mr Elliot entry on 16 August 2011 whilst offering to accommodate a subsequent visit by Mr Elliot, it was still open to the court to determine the matter of discharge and exercise discretion in his favour. Even if the appellant had not strictly complied with the decree, provided there had been sufficient compliance, the court was still entitled to discharge the decree. Mr Stalker relied on the dicta of Lord Neuberger. The significance of the fifth ground of appeal arose if the sheriff was correct to interpret the decree in such a way as to require the appellant to allow all the respondent's tradesmen to inspect simultaneously. A failure in a minor aspect or technical failure in compliance on the part of the appellant need not lead to a finding of non-compliance if there had been substantial or sufficient compliance. The decision in Knowsley deals with the equivalent English legislation which is the Housing Act of 1997. Knowsley is an English authority and as such not binding but very persuasive.

 

7.              Mr Stalker pointed out that the appellant's refusal to allow simultaneous inspection by the respondent and his tradesmen appeared to be of sufficient materiality to lead the sheriff to find that the inspection on 16 August 2011 was not a full inspection. Accordingly, the sheriff was unable to discharge the decree. He was wrong to fail to discharge the decree. In so doing he rejected the central submission for the appellant that in order for the appellant to comply with the decree he was not compelled to allow all of the contractors to inspect at the same time - "the simultaneous inspection" argument. According to Mr Stalker, having focused the issue "was there significance in Mr Elliot, the electrician, not being able to take part in the inspection on 16 August 2011 in respect of condition (2) of the suspended decree of 24 May 2011 for the purposes of considering the defender's compliance or non-compliance with that condition?" - the sheriff fails to give adequate reasons for rejecting the submission on behalf of the appellant. The only discernible reasons relate to the sheriff's assessment of the "defender's" understanding or misunderstanding of the decree and the evidence of Mr Berry the building contractor regarding the desirability of parallel inspection. The sheriff appears to have accepted that the inspections should have taken place at the same time by rejecting the submission made on behalf of the appellant. Accordingly, the sheriff erred by relying on the appellant's evidence which contradicted his own correspondence entered into with the respondent in the lead up to the inspection. That was no basis upon which to interpret condition (b) of the suspended decree. Interpretation is a matter of law. There was no evidence upon which the requirement for a simultaneous inspection could be based. Mr Lorimer's evidence related to expediency and also to facilitate work being carried out which went beyond the inspection requirement. If the evidence of those who attended at the flat is relevant to the question of interpretation of the decree then the evidence of the electrical contractor Mr Elliot should be preferred to that of Mr Berry or the pursuer. Mr Elliot accepted that it was not necessary for the builder to be present. Accordingly, there is no basis for the sheriff interpreting that there was a requirement in the decree for there to be a parallel or simultaneous inspection. The sheriff failed to give proper reasons to support his conclusion that parallel inspection is necessary. Having focussed the issue in paragraph 3 of his note as to the significance of Mr Elliot's involvement in the inspection of 16 August he ought to have given most weight to Mr Elliot's evidence on that issue. Mr Elliot's evidence points quite clearly away from placing any significance on a joint or parallel inspection. Neither the evidence nor the sheriff's reasoning would suggest that the correct interpretation of the decree involves the need for all inspecting at the same time; nor is it a necessity for all tradesmen to be present at the same time in order to carry out the inspection. This is crucial to the question of compliance. It is accepted that the landlord had the option to organise his tradesmen to attend at differing times. Thus the appellant has satisfied his obligations under the decree and in turn the respondent landlord could have achieved what he is entitled to under the decree. He chose not to re-schedule the electrical inspection.

 

8.              Grounds 2, 3 and 4 set out matters which the sheriff placed reliance on in reaching his decision. It was argued on behalf of the appellant that the sheriff was wrong to take account of these matters as they were irrelevant considerations standing the prime function of the sheriff to interpret the decree. Thus reliance on the pursuer's obligations under the Housing (Scotland) Act 2006; the industry standard on electrical inspection; the lack of an electrical inspection for more than 25 years - these were irrelevant matters. They did not assist the court in fulfilling its function of determining the decree and the obligations arising. Likewise the sheriff was wrong to place any weight on the evidence of Police Constable Barbour in answering the question of law - whether a full examination or inspection had taken place.

 

9.              Accordingly, if I was satisfied that the sheriff erred in reaching the conclusion he did, namely, that the inspection on 16 August 2011 did not constitute a full inspection I would be entitled to find that there had been compliance. The sheriff erred in construing the contract by requiring simultaneous inspection without there being any basis in law for so doing. If there is no requirement for a simultaneous inspection then I was entitled to find that the appellant had complied with his obligations under the decree and was entitled to discharge of the decree. Even if the sheriff was correct to interpret the decree as requiring the appellant to allow all the respondent's tradesmen to inspect simultaneously and therefore had not strictly complied with the decree, nevertheless, I am still permitted to discharge the decree if satisfied that the appellant had "sufficiently complied" with his obligations. In this regard it is accepted that the appellant's refusal to allow Mr Elliot to inspect on 16 August was coupled with an acceptance that Mr Elliot could return another time. This indicated sufficient compliance to allow the appellant to have the decree discharged. Accordingly, I was urged to allow the appeal and find that the appellant had complied with the second suspensive condition of the decree of 24 May 2011 and discharge the decree. I was asked to certify the cause as suitable for the employment of junior counsel. Counsel had appeared before the sheriff who had so certified the cause. Expenses should follow success. If the appellant was unsuccessful in the appeal any expenses awarded against him should be as an assisted person. Should the appeal be allowed solely on the basis of the new amended Ground 5 then the question of expenses may require a separate hearing.

 

RESPONDENT'S SUBMISSIONS

10.           Mr Burr, for the respondent dealt sequentially with the appellant's grounds of appeal. He concluded that the appellant had failed to show that the sheriff had erred in his judgment and the appeal should be refused. The appellant's arguments had not demonstrated any clear error in law on the part of the sheriff nor had it been suggested that there was insufficient material to justify the decision he made. Essentially this was a discretionary matter for the sheriff and there was no basis upon which the appellant could argue that the sheriff had got it plainly wrong.

 

11.           The first ground of appeal deals essentially with the sheriff's approach to the construction of the decree. It was the respondent's submission that the sheriff had taken the correct approach. He had been referred to McBryde on the Law of Contract in Scotland Chapter 8 and the cases at Tabs 5, 6 and 7 of the respondent's bundle of authorities, Glasgow Training Group (Motor Trade) Ltd v Lombard Continental PLC 1989 SC 30; Bank of Scotland v Dunedin Property Investment Company Ltd 1998 SC 657 and Brutus v Cozens 1973 [AC] (HL) 854. The latter case emphasises the distinction between the ordinary meaning of words and the construction of the words in a contract. The meaning of a word such as "inspection" was a question of fact and the sheriff was thus entitled and correct to take the view he did on the meaning of "inspection". That is a question of fact determined on the evidence. The interpretation of a contract as a whole being a question of law. Accordingly, the test which should apply is this - "only if the meaning given by the sheriff to the word "inspection" is one which no reasonable judge or tribunal would give does this involve a question of law." Accordingly, there was no basis upon which to argue that the sheriff had done anything other than construe the contract properly and reasonably. Even if the appellant is correct in his assertion that the sheriff must have rejected the appellant's submission on the meaning of "inspection" based on the appellant's own flawed understanding of the decree, coupled with Mr Berry's evidence about the desirability of simultaneous or parallel inspection, this does not amount to an error. There is a proper basis in the evidence for the sheriff's interpretation.

 

12.           Mr Burr very fairly conceded that the fifth ground of appeal, albeit a novel point, was one which he was prepared to deal with. The point was not argued before the sheriff but the respondent had had ample time to consider the amended ground of appeal and the authority upon which it is based that being, Knowsley Housing Trust v White [2009] 1AC 636. Nevertheless, the authority, although highly persuasive, was not binding. It was an English House of Lords case based on similar statutory provisions applicable in England. The court could exercise its discretion to discharge a decree even if a tenant had not strictly followed the conditions of the suspended decree, provided there had been sufficient compliance with the terms of the decree. This, in the opinion of Mr Burr, did not take the appellant far at all.

 

13.           Furthermore, grounds of appeal 2 and 3 were insufficient to overturn the sheriff's judgment. The sheriff considered that the Housing (Scotland) Act 2006 and the background circumstances of no inspection of the electrical equipment for at least 25 years and the industry standard on inspection were factors which he could properly take into account as surrounding circumstances. They could not be considered irrelevant. In any event, the sheriff had other evidence upon which he was entitled to find that there had not been compliance with the conditions of the suspended decree. Indeed, PC Barbour's evidence referred to in the fourth ground of appeal was available to the sheriff but not crucial to the sheriff's decision. The inspection being a question of fact the sheriff was entitled to place weight on the police constable's evidence.

 

14.           Accordingly, I was asked to refuse the appeal and adhere to the sheriff's interlocutor of 21 December 2012. Expenses should follow success and I should certify the cause as suitable for junior counsel having regard to the importance of the subject matter to both parties. If, on the other hand, I consider that there was merit in any of the grounds of appeal I should consider remitting to the sheriff to reconsider. I was reminded that there had been no argument on the Knowsley discretionary point before the sheriff and it was appropriate, if circumstances justified it, to remit the question of discretion to the sheriff to hear arguments from both parties on the Knowsley discretionary point.

 

DECISION

15.           The issues in this appeal are circumscribed by the terms of part 1 of the decree of 24 May 2011.

 

16.           However, the background is quite simply that this is a dispute between landlord and tenant. The lease is of some considerable duration, nearly 30 years. There have been difficulties between the tenant, who is the appellant, and the landlord, originally Mrs Lorimer and now her son who is the respondent. Relations between landlord and tenant have been tense and difficult for many years. The appellant has chronic physical and mental health problems which cause further anxiety. I recognise that this background informs the need to have the court make a requirement that the appellant (1) pay agreed arrears of rent and (2) allow an inspection of the flat in order to avoid his removal from the property he has lived in for nearly 30 years.

 

17.           Accordingly, careful consideration and scrutiny of the terms of part 1 of the decree is required. It is, of course, a suspended decree pronounced by the sheriff, of consent, following a joint minute of agreement being presented by the parties. (No 53 of process). It is important to recognise the wording was precisely that agreed by the parties and which imported clauses 12 and 13 of the original lease drawn up a very long time ago. Part 1 of the decree of removal ordained the defender (tenant) to remove himself from the subjects. However, the court at the same time suspended execution of that decree of removal provided the two following conditions were met - these being (a) payment of agreed rent within three weeks and (b) allowing the landlord and/or his agents, employees and contractors to carry out a full inspection of the flat for the purposes in clause 12 of the lease. Following on from that the defender is to allow the landlord and/or is agents, employees and contractors to carry out any work in terms of clause 13 which may require to be carried out arising out of said inspection.

 

18.           I set out the relevant part of the decree below:

"The Sheriff (1) Ordained the defender summarily to flit and remove himself, his family, dependants, servants and sub-tenants with their goods, gear and whole belongings from the subjects and to leave the same void and redd to the end that the pursuer may enter thereon and peacefully possess and enjoy the same; and that under pain of ejection and suspends execution hereof on condition that the defender (a) makes payment to the pursuer of the sum of £17,471.12 within 21 days of today's date with time being of the essence; (b) allows the pursuer and/or his agents, employees and contractors to carry out a full inspection of the flat for the purposes in clause Twelfth of the lease dated 8 and 11 June 1984 that inspection to take place, with time being of the essence, upon a minimum of 7 days' written notice being given at any time within 3 months from the date of decree hereof by the pursuer to the defender and any solicitors that he may have; and allows the pursuer and/or his agents, employees and contractors to carry out any work in terms of clause Thirteenth of said Lease which may require to be carried out arising out of said inspection and that within a reasonable time after the inspection;"

 

19.           Notwithstanding that the decree proceeded of consent of the parties there is no true consensus or agreement as to what the second suspensive condition in part 1(b) of the decree actually means.

 

20.           Before the sheriff the defender and appellant argued that by permitting the landlord to attend at the flat with his building surveyor and building contractor on 16 August 2011 he had sufficiently complied with the requirement to allow a full inspection. Further and in any event his refusal to allow the electrician access on 16 August 2011 was based on reason and was qualified in the sense that he was willing to allow him to inspect on another occasion. The tenant asked the court by minute to discharge part 1 of the decree due to his compliance with the two suspensive conditions. It is beyond doubt that the rent has been paid.

 

21.           The landlord, on the other hand, argued that the tenant had failed to comply with condition (b) of the suspended decree, which was a submission accepted by the sheriff following evidence led at proof in November and December 2012. The sheriff found and declared that the defender had failed to comply with that condition with the result that the landlord could enforce the decree removing the appellant from the subjects. The tenant appeals the sheriff's interlocutor of 21 December 2012.

 

22.           It is however, important to record that counsel for the respondent accepts that the appellant had proposed that the electrical inspection could be arranged for another time (other than 16 August 2011) and that prior to 16 August 2011 the appellant had intimated by e-mail to the landlord that he was happy to allow the electrician to come and inspect at another time. It is clear from the sheriff's judgment that there was a live issue before him as to the tenant's position vis a vis the electrician returning on another date and whether an offer to re-arrange the electrical visit was communicated on 16 August by the tenant. The sheriff at paragraph 21 page 15 of his judgment states: "In so far as he stated in evidence that he made it clear that the electrician could return at any time after the inspection on 16 August 2011, no other witness supported him on this count, and I could not rely on his evidence in this regard." The concession is now made by the respondent that the appellant was willing to allow the electrician to return on another date. This is a matter of some importance. Firstly, it diminishes the question which the sheriff addresses in the passage to which I have referred. The sheriff appears to have attached some importance to resolving this issue as he makes a finding in fact (7) that "The defender did not communicate an invitation to the electrician to return at a later time for a separate inspection". Secondly, in considering the question of whether the appellant has complied or failed to comply with the second suspensive condition it raises the issue whether there is any significance in the electrician not being able to carry out an inspection at the same time as the landlord, his builder and his surveyor. Thirdly, it is central to the appellant's fifth ground of appeal which argues that the court may discharge the decree even if the tenant has failed to comply strictly with the suspensive condition provided there has been sufficient compliance by the tenant. (Knowsley Housing Trust v White (Secretary of State for Communities and Local Government Intervening) [2009] 1 AC.

 

23.           Before I turn to the grounds of appeal argued before me it is worthwhile to pause and consider the terms of the relevant clauses of the lease (clauses 12 and 13) which the parties agreed should inform and qualify the purpose of the inspection. The parties chose to ask the court to grant decree in terms of the minute of agreement in order to settle the original action. They had legal advice. The parties at proof had differing views as to what they meant by the second suspensive condition and it required the sheriff to give a judicial determination not only on the facts but on the construction to be placed on the terms of the second suspensive condition.

 

24.           Against that background I turn to the terms of the relevant clause of the lease entered into in 1984:-

"Twelve

Inspection by Proprietor

The proprietor reserves the right to enter the flat on such occasions as the proprietor thinks fit during the tenancy to inspect the condition of the flat, decoration, paintwork and furnishings etc.

 

THIRTEEN

Damage

( i) In the event of the Proprietor being of the opinion that there is damage which requires to be remedied or replaced maintenance or repair work required, that the flat is in need of cleaning, the proprietor shall have the right (a) to terminate the lease by giving 14 days' notice in writing; or (b) have any necessary work carried out and the tenant shall be responsible for paying such proportion of the cost of any such work (fair wear and tear excepted) their liability being measured by the condition of the flat and furnishings as recorded in the Inventory.

 

( ii) In the event of any dispute or difference arising as to the interpretation of application of this clause, such dispute or difference shall be referred to Messieurs Lyon and Turnbull, Auctioneers and Valuators, 51 George Street, Edinburgh. The decision of the said Messieurs Lyon and Turnbull shall be final and binding on the proprietor and the tenants.

 

( iii) Without prejudice to the provision of paragraphs (i) and (ii) hereof, the proprietor preserves the right to employ a cleaner as and when she may consider it necessary and recover the cost thereof from the tenant. The decision of the proprietor as to what costs are reasonable shall be final and binding on the tenant and the arbitration provisions of paragraph (ii) hereof shall not apply. If the tenant fails to pay such costs within 14 days of a written account of such costs being rendered to them, the provisions of paragraph (i) hereof regarding the termination of the lease shall apply."

 

25.           Clause 12 reserves to the landlord the right to interrupt the tenant's peaceable occupation of the premises for the purpose of inspecting the condition of the flat, decoration, paintwork and furnishings etc. In that regard clause 8 indicates certain prohibitions - from painting, papering or re-decorating - from damaging walls/woodwork by driving in nails or tacks. The flat appears to be fully furnished (clause 15) and clause 11 refers to the preparation of an inventory and record of the condition of the flat.

 

26.           Of course, this lease was originally for a period of six months and has been continued by tacit relocation. It has been a very lengthy tenancy. The terms of the lease are less apt in 2013 than when the pursuer's mother entered into the lease with Mr Griffiths. Nevertheless, the parties chose to refer back to the lease when negotiating settlement terms in May 2011. It was open to the parties to specify more particularly what they meant but they chose not to do so.

 

27.           I observe that clause 13 provides to the landlord the right to terminate the lease or to recover the cost of necessary work or a proportion of it from the tenant (excepting fair wear and tear) with reference to the inventory mentioned in clause 11. The arbitration provision in clause 13 appoints Lyon and Turnbull as Arbiters should there be a dispute. Lyon and Turnbull are Auctioneers and Valuators (Valuers) they are not surveyors. The final part of clause 13 relates to cleaning of the premises and recovery of any cleaning costs.

 

28.           Clause 12 is therefore a simple and rather dated inspection clause referring to the matters which feature in other parts of the lease such as "condition of the flat" "decoration, paintwork" and "furnishings" are listed. The list is not exhaustive but as I say reflects the matters referred to in clauses 8 and 11. References to electricity are made in clauses 5 and 9 but these references relate firstly to liability to pay for the cost of electricity used and secondly to maintaining electrical appliances in good working order.

 

29.           I doubt whether the dictionary definition of inspection assists greatly in determining this matter. The definitions given are capable of a range of meanings. The root of the word "inspection" derives from the latin "specare" to look at. It appears to require observation and presence however inspections may be formal (as in military events) or more detailed where careful scrutiny is required. I did not find the exercise helpful. It would have been constructive if the parties had bottomed out the meaning or nature of the "full inspection" when they agreed the terms of the decree. However, they did not and that is why a determination is required.

 

30.           Against that background I turn to look at the sheriff's approach to the issue of "full inspection" and whether there has been compliance or not with the requirement to allow such an inspection by the "pursuer and/or his agents, employees and contractors". Separately, in terms of the fifth ground of appeal whether, standing the agreed facts and circumstances, there has been "sufficient compliance" with the conditions of the decree which ought to result in the discharge of the first part of the decree.

 

31.           In reaching his decision the sheriff made findings in fact on the evidence of the witnesses he heard at proof. Essentially the sheriff's construction of the terms of the second suspensive condition and his determination of the issue of compliance or non-compliance with that suspensive condition involved the exercise of his judgment. It involves judicial discretion. In these circumstances it is not for me to review the facts and decide the matter anew. Before I may consider the facts I would first of all, have to be satisfied that the sheriff misdirected himself in the manner in which he approached the question of the interpretation or construction of the decree or in so doing took into account irrelevant matters or failed to take account of some other relevant matter in reaching his decision.

 

32.           The first ground of appeal is central to the issues which the sheriff had to resolve - what does condition (2) of the decree mean and following on that was there any significance in Mr Elliot not being able to take part in the inspection which took place on 16 August 2011? It is clear that the sheriff came to the view that the inspection of 16 August 2011 was not a "full inspection". In his finding in fact and law the sheriff states:

"1.The inspection which occurred in the flatted premises at top flat left, 35 Jeffrey Street, Edinburgh on 16 August 2011, did not constitute a full inspection of the flat for the purposes in clause of the lease dated 8 and 11 June 1984 in terms of condition(2) of the suspended decree of the court dated 24 May 2011."

 

It is likewise clear from Findings in Fact 7 and 8 that those present at the inspection were as follows:- tenant together with two police constables and the Reverend Helen Alexander of St Giles and the landlord with his surveyor and building contractor. The lacuna must therefore be the absence of Mr Elliot, otherwise this inspection looks rather full. It is now well known that Mr Elliot was refused entry by the tenant. He was to perform an anticipated two hour electrical test at the same time as the others were in the flat which by all accounts is not large.

 

33.           Accordingly, Mr Elliot's denial of inspecting simultaneously with the landlord and the landlord's other contractors is clearly of significance to the sheriff. It follows that the comprehensive and contemporaneous qualities of the inspection were critical to the question of compliance for the sheriff. Compliance, of course, must be judged by the requirement placed on the tenant by the court in the decree. It is that requirement which must rule the question of compliance and it is for the court to apply the law to interpret that requirement. The only part of condition (b) of the decree which might support the comprehensive nature of an inspection are the words "full" taken with the phrase "and/or his agents, employees and contractors". The use of the singular is the only indication of the imperative of simultaneity. However, if the co-existence of these individuals was material to effect an inspection one would expect that to be evident in the words of the decree. Such words are completely absent. Instead the imperative is that time is "of the essence". This is repeated despite three months being allowed for compliance with inspection requirements. There is nothing in the words of the decree to suggest that co-existence and co-operation of contractors is of the essence. In matters of crucial importance clarity and certainty is important. The effect of non-compliance is the removal of the tenant from the premises he has occupied for nearly 30 years. The consequences are therefore of great significance.

 

34.           Be that as it may, what has the sheriff relied on to construe the terms of the decree in the manner he has? Firstly, the confused and self-contradictory evidence of the appellant. It is however, a tenet of construction that the proper construction of a contract or agreement (and indeed the decree proceeds on the parties' agreement) is a question of law for the court to determine. It is undoubtedly correct that the surrounding circumstances inform that exercise. Nevertheless, the direct evidence of the subjective intention of a party to a contract is not normally regarded as a proper consideration for the court in construing and interpreting that contract. Therefore the evidence of a party as to what they understood a term to mean would be an unreliable and irrelevant consideration when dealing with construction. (McBryde on the Law of Contract in Scotland Ch 8.03). The sheriff also places reliance on the evidence of Mr Berry, the respondent's contractor, as an aid to construction. His evidence on the desirability of parallel inspection with the electrician is borne out of convenience and no more than that. There is no basis or reason given by him to suggest that simultaneity is necessary for this inspection and therefore for compliance. Accordingly, even allowing for the unlimited reference to the respondent and/or his contractors, it appears to me that this ground of appeal has merit. It is difficult to decern the basis in law for implying the need for simultaneity into the inspection requirement.

 

35.           Grounds of appeal numbered 2, 3 and 4 individually and cumulatively argue that the sheriff took account of irrelevant considerations in reaching his decision. Firstly, by considering the pursuer's obligations under the Housing (Scotland) Act 2006 and secondly, by considering the frequency of electrical inspections against the background of an industry standard, he ignored his crucial function which was to determine whether the appellant in terms of clause 12 of the lease was obliged to allow such an electrical inspection on 16 August. Further, in terms of ground 4 whether he erred in giving weight to the evidence of PC Derek Barbour as to whether a "full examination" had been carried out.

 

36.           The appellant's obligations under Part (b) of the suspended decree constituted the issue for the sheriff to determine. This is, of course, separate and distinct from the landlord's obligations under the Housing (Scotland) Act 2006. The sheriff refers to this at paragraph 24 of his judgment. He correctly observes that the landlord requires to address the "repairing standard" in terms of the 2006 Act. I agree with the sheriff's observations on the landlord's statutory obligations. However, the landlord's statutory obligations are, in my view, nothing to the point in the determination of the issue between the parties which is the compliance or nor compliance by the tenant with the suspensive requirements of the decree of 24 May 2011. As counsel for the appellant points out section 181(4) of the 2006 Act provides the landlord with the mechanism by which he may exercise his right to conduct an inspection for the purpose of fulfilling his statutory obligations under Part 1 Chapter 4 of the 2006 Act. The issue for the sheriff was restricted to compliance or otherwise with the specific conditions attached to the decree. The terms of the second suspensive condition require the appellant to allow an inspection simply to fulfil the contractual right to inspect in terms of clause 12 of the lease. The lease, of course, predates the legislation and the legislation does not require that its statutory requirements be implied obligations in every statutory tenancy. Accordingly, the landlord's obligations under the 2006 Act are separate to the landlord's obligations on the lease. In any event, these proceedings focus on the tenant's obligations under the decree. It follows that the sheriff's reliance on the 2006 Act is irrelevant to the issue before him. His observations are entirely sensible if one were to approach this matter at large. However, the terms of the decree of 24 May 2011 set the parameters. To place reliance on the landlord's statutory obligations in determining this issue, in my view, points to error.

 

37.           Similarly, reliance on the remarks attributed to PC Barbour in his evidence as assistance in interpreting and giving meaning to the expression "full inspection" might initially be attractive on the grounds of neutrality however on careful consideration the police constable's presence on the date of the inspection on 16 August 2011 was as a professional witness to assist the appellant and put him at ease. He was simply a witness to fact - an impartial observer. The question of what constitutes a "full inspection" is a matter of both fact and law. It is for the court to reach a view on interpretation of both the decree and accordingly the terms of clause 12 of the lease. That is the judicial function. What is a "full inspection" depends on the legal context. It is not difficult to understand why PC Babour would take the view that a full inspection had not taken place when it is beyond dispute that one of the contractors had been turned away. That is simply a matter of fact. The extent of the appellant's obligations under the decree is a question of law for the court to answer.

 

38.           Likewise, good practice or the industry standard for electrical inspection is of doubtful relevance when the issue for the court to determine depends on construing the nature of an inspection for the purposes of clause 12 of the Lease. The absence of consensus by the parties means that the written word of the decree falls to be construed. Mr Elliot, the electrician gave evidence as to the recommendation that electrical installations be inspected every five years. The first inspection would be visual followed, if necessary, by a full periodic inspection. The sheriff's reliance on the age of the electrics and the industry standards reflect the evidence led before him and form the factual matrix. Finding in Fact 11 has a proper basis on the evidence. The relevance of the finding and the sheriff's reliance on the finding is less clear when the issue is interpretation. It is noteworthy that the sheriff records at paragraph [21] of his note: "It was clear that Mr Elliot would have been prepared to return to carry out his inspection if he had been asked to come back later". It is likewise clear that the nature of the periodic inspection or installation condition report would be in two parts - an initial visual inspection followed by an invasive inspection necessitating removal and opening up of socket plates and fittings together with checking the fuse board and "any maintenance work required" (Sheriff's note paragraph [8]). It therefore appears that there is force in the appellant's argument that the sheriff's reliance on industry standards and practice have little relevance and the invasive aspect to the electrical inspection takes the planned involvement of Mr Elliot well beyond what is contemplated by clause 12. Indeed, it appears that the pursuer and respondent seeks to conflate his clause 12 and 13 rights by insisting on this electrical inspection as part of the first inspection when it should properly be clause 13 work "arising out of said inspection".

 

39.           The law as to the function of an appellate court in respect of a decision by a sheriff in the exercise of discretion is reasonably well established. These well settled principles have to be applied in individual cases. It is not my function to exercise my discretion afresh unless there is reason to do so. However, if circumstances justify it is open to me as the appellate sheriff to consider anew the issue before the court which is one of compliance. In view of my conclusion on the first ground of appeal and on the parts of the judgment relating to the Housing (Scotland) Act 2006; the electrical industry standard on inspections and the evidence of the police constable which I conclude are irrelevant considerations for the court in its determination of the issue of compliance it is open to me to reconsider the issue of compliance on the basis of the facts established and the submissions before me.

 

40.           Accordingly, the issue of compliance requires the court to analyse and interpret the second part of the suspended decree. The condition being that the defender (appellant) allows the pursuer (and/or his agents, employees and contractors) to carry out a full inspection for the purposes in clause 12 of the lease. The other parts of the condition set out the period within which the inspection should take place and the practical arrangements for intimation of the date. The words "with time being of the essence" appear to me somewhat redundant bearing in mind that the condition prescribes that the inspection is to take place on seven days' notice in writing at any time within three months from the date of decree. It appears to me that the (b) condition of the decree has as its object the enforcement of the landlord's contractual right to enter the flat for the purpose of clause 12 of the lease with the compulsitor being that the appellant would be removed from the flat thus terminating the lease which had subsisted since 1984. Condition (b) also specifically refers to clause 13 of the lease compelling the tenant to allow any work which the landlord considers requires to be done by way of remedying or replacing damage or maintenance or repair work to be done including cleaning. The meaning of "full" where it qualifies the word "inspection" is not apparent from a straightforward reading of the decree. The word is capable of a variety of meanings from "comprehensive" to an almost unlimited range of activities. Its usual meaning is complete or whole. The expression, however, must be construed in accordance with the lease and the purpose of clause 12 in particular. It must be fair and reasonable to both the landlord and tenant having regard to the property and the circumstances of the case. For example the landlord's insistence on an audio visual specialist attending the property in the absence of there being such equipment installed in the property would not, in my view, be contemplated by clause 12. To use a more extreme example the inclusion of a landscape gardener or conservatory constructor, who may be a contractor engaged by the landlord, would not be contemplated in terms of clause 12 having regard to the characteristics of the property.

 

41.           There is unfortunately a complete absence of consensus with regard to what the parties had in contemplation when entering into the minute of agreement which settled the case prior to proof in 2011. It follows from that that the issue of "compliance" is capable of fulfilment in a number of ways. It is not difficult to understand that for many it is more effective to achieve the purpose of the inspection on one particular date whereas it is clear from the evidence that a multipurpose inspection with a number of tradesmen/professionals in the confines of a small flat was a cause of anxiety for the appellant. On the other hand, many tenants would wish the intrusion into their peaceable possession of the property to be over and done with on one date or one occasion only. Accordingly, this makes the matter not easy of resolution. The issue of compliance is a matter for the court at large on the evidence of the wider facts and circumstances which pertain to the events of 16 August; the parties and the lease. The absence of consensus on the question of what constitutes a "full inspection" leads to the written words of the decree assuming greater importance. Compliance or otherwise is the crux of the matter. Certainty and clarity are essential and desirable if parties to a court decree are to understand what is required of them.

 

42.           It is interesting to observe that the Housing (Scotland) Act 2006 to which reference is made by the sheriff in his judgment is the legislation which brought into force the requirement for information to be provided by persons marketing property for sale - "The Home Report". The Home Report or Survey covers the matters referred to in clause 12 of the lease with the exception of furnishings which are be of little interest to a potential purchaser. The survey is an important "prescribed document" to be prepared by a Chartered Surveyor. It is a document on which reliance can be placed by both seller and purchaser. It categorises the nature and urgency of any repairs from 1 - "No immediate action or repair is needed" to 3 - "Urgent repair - ....estimates for repairs or replacement are needed now". The areas to be categorised are comprehensive and include internal parts including electricity. A property sale/purchase is probably the most important transaction that most people make in their lifetime.

 

43.           If a surveyor is vested with this responsibility by law in respect of such property transactions and can categorise and direct attention to remedial work or repairs one might expect that the involvement of a surveyor together with a landlord would fulfil the inspection criteria for property which is tenanted. It would provide the landlord with a professional opinion on which his own view or opinion will be formed for the purpose of the consequential remedies provided by clause 13 of the lease - the allowance of which is part of the appellant's obligations in terms of the decree. However, the sheriff makes it clear in his judgment that the construction exercise to be carried out by the court pertained to the construction of that part of condition (b) of the suspended decree relating to the inspection of the flat for the purpose in clause 12 of the lease. The remaining part of the condition was not the subject of any contention (paragraph 22 of the judgment) and accordingly the import of the repairing/remedying clause 13 was apparently not explored. Nevertheless, in my view, the obligation placed on the appellant to comply with his obligations under clause 13 is not without significance in this case as in essence the successive clauses are linked intrinsically.

 

44.           In the absence of clarity as to what the words used by the parties in settling the principal action actually mean it is a perfectly sound proposition to suggest that the allowance of an inspection by the landlord, his surveyor and building contractor constituted compliance with that part of the suspended decree. I say that having regard to the further requirement on the appellant to allow for the consequential remedying or repair or maintenance which might flow from the inspection and the outcome of the inspection. Further electrical investigation and work can properly be categorised as a clause 13 requirement. Given that the reference to the repairing standard is not of assistance in determining the issue between the parties in this case the issue of compliance or otherwise is at large for the court. In any event the matter does not end there. It is now accepted that the appellant's resolve to exclude the electrician on 16 August was not his final position on the electrician. He was prepared to allow an electrical inspection on another occasion. Unless the suspensive condition compels simultaneous inspection by all the landlord's men the appellant satisfies the broadest interpretation of full inspection contended for by the respondent. The respondent did not suggest that the appellant should permit any more personnel under clause 12 than himself, the surveyor, the building contractor and the electrical contractor. The issue remains then as to the need for a building contractor and a electrical contractor to attend together with the surveyor at the same time and whether one could not properly conduct the purpose of their inspection without the other in attendance. I have addressed the matter of simultaneity earlier under the first ground of appeal. If simultaneity is essential that should be clear on the face of the decree. It is not. The sheriff observes that the evidence of the building contractor suggested that it was highly desirable that there be parallel inspection however the electrical contractor himself appears not to have taken the same view and would have returned at a later date to carry out his inspection. As the condition, age and state of the electrical fuse box and wiring and sockets appears to be the main concern there is much force in the appellant's contention that the significance of the parallel inspection is undermined by the electrician himself. Accordingly, in the absence of any compelling evidence or reason for requiring a conjoined inspection the conclusion to be drawn from the evidence points clearly towards the inspection requirement of the suspended decree having been complied with, especially given the absence of any request to permit Mr Elliot to return on a subsequent occasion.

 

45.           It follows from my decision on the principal grounds of appeal that it is not necessary to address the new ground of appeal added by amendment pending this appeal. That ground of appeal relies on the House of Lords decision in Knowsley (supra). It is an English case and deals with the equivalent English legislation (to the 1984 Act). Being an English decision it is not binding. It is however a decision of the House of Lords delivered by the now President of the Supreme Court. It is therefore highly persuasive and apt. The House of Lords decided that the legislation bestowed the widest possible discretion and power to the court to deal with the discharge of a suspended decree. At paragraph 97, page 672 he states: "In my view, on a fair reading of section 85, it is open to the court to include a proleptic discharge provision in a suspended order for possession. The section should be construed, as far as permissible, to confer as much flexibility as possible on the court, and in such a way as to minimise future uncertainty and the need for further applications." Lord Neuberger emphasises the requirement that the terms of the suspended order or decree are ordinarily to be literarily applied and precisely complied with but nevertheless the court can consider the tenant's application for relief from the consequences of failure to comply strictly and the court may discharge the warrant when there has been "substantial compliance" with the terms of the suspended order.

 

46.           Likewise in Scotland the Rent (Scotland) Act 1984 permits the making of a possession order which may be suspended subject to such conditions as the court thinks fit. Subsection 4 allows the court to discharge or rescind the order "if any such conditions...are complied with". Accordingly, it would be anomalous if the Scottish Courts did not have a similar wide discretion in the exercise of its powers under section 12(4). Knowlsey is authority for the proposition that the court has a wide discretion not only to grant a discharge in circumstances where there has not been strict compliance but to make an order which would lead to the automatic discharge of the suspended order on the occurrence of a particular event. The significance however of Knowsley in the present appeal is the emphasis on the court's discretion to decide the extent to which compliance with the terms of the order will be required for the order to be discharged. The emphasis on this being a discretionary matter for the court means that the court may still discharge the order even if there has not been strict and precise compliance but instead sufficient compliance having regard to the nature of the conditions attached to the order.

 

47.           It has not been necessary for me to decide this appeal by virtue of the exercise of my discretion on the Knowsley point. Even if I am wrong on the matter of the construction of the decree and that I see no requirement for unitary and contemporaneous inspection imposed on the tenant, nevertheless, the tenant's decision to refuse access by the electrician on 16 August, qualified as it was, was not a denial of access but a refusal based on the appellant's own reasons and was associated with an offer or proposal that the electrical inspection take place at a different time. In these circumstances it is, in my view, difficult to argue that the tenant had not complied sufficiently with his obligations under the decree.

 

48.           Accordingly, the appeal shall be allowed, The sheriff's interlocutor will be recalled and Part 1 of the suspended decree of 24 May 2011 discharged. There is no reason for the normal rules on expenses not to apply and accordingly I will award expenses in favour of the appellant. The appeal raises significant and important issues for both parties and accordingly I will sanction the cause as suitable for the employment of junior counsel.

(signed) Mhairi M Stephen