Scottish Sheriff Court Decisions

SHERIFF COURT

JUDGMENT RECORD AND CATEGORISATION SHEET

------------------------------------------------------------------------------------------------------------------------CASE NAME The Glasgow Housing Association Limited v Karen Hetherington

----------------------------------------------------------------------------------------------------------------------------CASE NUMBER SD2890/08

AUTHOR Sheriff Ian H L Miller, Sheriff of Glasgow and Strathkelvin at Glasgow

DATE SIGNED BYAUTHOR: 28 April 2009

DATE RECEIVED BY MRS. CRANSTON:

HAS THE JUDGMENT TO BE PUBLISHED ON THE WEBSITE YES

DATE PUBLISHED ON WEB

----------------------------------------------------------------------------------------------------------------------------SHERIFF'S EDITING COMMENTS: I have none: I have incorporated the Joint Minute within my NOTE. The way in which the Joint Minute is expressed is exactly as prepared by the solicitors because the pursuers' solicitor e-mailed it to my Clerk in that form.

Was editing necessary ? :

Judgment has been edited as required

CATEGORISATION OF JUDGMENT:

The judgment should be recorded under the following categories:-

Housing

CATEGORISATION

p	Administrative Law	p	Insurance
p	Agency	p	Intellectual Property
p	Agriculture and Fisheries	p	Judicial Review
p	Arbitration
p	Banking Law	p	Landlord and Tenant
p	Building Law	p	Licensing
p	Commercial Law	p	Local Government
p	Companies	p	Miscellaneous
p	Competition	p	Negligence
p	Conflicts of Laws	p	Nuisance
p	Constitutional Law	p	Partnerships
		p	Personal Bar/Waiver
p	Consumer Protection	p	Planning
p	Contracts	p	Prescription and Limitation
p	Criminal Law	p	Procedure
p	Damages	p	Property
p	Defamation	p	Reparation (tick also Delict & Tort)
p	Delict (tick also Reparation & Tort)	p	Restitution (tick also Unjust Enrichment)
p	Education	p	Rights in Security
p	Employment Law	p	Sale of Goods
p	Environmental Law	p	Shipping
p	European Community Law	p	Social Security
p	Evidence	p	Succession
p	Family Law	p	Taxation
p	Housing YES	p	Tort (tick also Delict & Reparation)
p	Human Rights	p	Trusts
p	Immigration	p	Unjust Enrichment (tick also Restitution)
p	Insolvency	p	Valuation for Rating

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

SD2890/08

INTERLOCUTOR

in causa

THE GLASGOW HOUSING ASSOCIATION LIMITED, Granite House, 177 Trongate, Glasgow G1 5HF

PURSUERS

against

KAREN HETHERINGTON, residing at Flat 3/1, 12 Shapinsay Street, Glasgow G22 7JN

DEFENDER

GLASGOW, 28 April 2009

The Sheriff, having heard parties procurators on their joint motion to receive at the Bar a Joint Minute of Admissions and beyond its terms parties seek to renounce probation, Grants the said motion, and accordingly Allows the Joint Minute to form number 10 of process and Allows parties to renounce probation under and in terms of Ordinary Cause Rule 29.4: thereafter, having heard parties procurators at a hearing on evidence on the said Joint Minute, Adjourns the proof under and in terms of section 16(1) of the Housing (Scotland) Act 2001 until 29 October 2009 at 10.00 am within the Sheriff Court House, Glasgow: meantime Imposes on the defender during the period of the said adjournment the two conditions that (1) she complies in full with the entire terms of her Tenancy Agreement with the pursuers, and (2) she refrains from committing a criminal offence for which she is eventually convicted, all under and in terms of section 16(1) of the said Act: moreover, Allows parties to amend their respective pleadings, if so advised, and to lodge further productions if wished, no later than 14 days before the adjourned hearing in respect of acts and events that occur during the period of adjournment of the proof that bear on the issue of whether it is reasonable to make the order sought by the pursuers: and, on joint motion, Reserves meantime the question of the expenses of the diet of proof incurred to date.

NOTE

[1] In this summary cause action the pursuers as landlords seek recovery of possession of a dwelling house at Flat 3/1, 12 Shapinsay Street, Glasgow ("the flat") from the defender, their tenant under a Scottish secure tenancy. They do so under either of the grounds, being those set out in paragraphs 2 and 7 of Part I of Schedule 2 to the Housing (Scotland) Act 2001 ("the Act"). The defender accepts for present purposes that the landlord has grounds for recovery of possession under either of the two grounds relied upon but resists the order sought on the ground that to grant it is unreasonable in all the circumstances. In other words, section 16(2)(a)(i) of the Act is conceded and the dispute relates to section 16(2)(a)(ii) of the Act.

[2] The case has proceeded to proof at which the pursuers are represented by Miss Sharp, solicitor, Glasgow and the defenders by Miss Cumming, solicitor, Glasgow. After sundry incidental procedure which has included the presentation of a Joint Minute of Admissions that has become number 7 of process, the pursuers have led the evidence of Ms Lynne Bell, a housing officer with the pursuers. After that the parties have decided to frame a fresh Joint Minute and this they have presented on the morning of the third day of the proof, which has become number 10 of process. The parties are agreed that this document is intended to replace the earlier Joint Minute and moreover that they wish at proof to rely upon its terms alone and their subsequent submissions thereon. Although the Joint Minute does not expressly say that the parties wish to renounce probation and intend to rely solely upon the terms of the Joint Minute, as Ordinary Cause Rule 29.4(1) requires, it is evident from what they state that that is what they want. Accordingly I have concluded that I can give effect to their intention by operating the discretion given by Ordinary Cause Rule 29.4(2), because what they want will best secure the expeditious progress of the cause. In furtherance of that I have heard submissions on the Joint Minute.

The Joint Minute

[3] The term of the Joint Minute are as follows: -

The parties have agreed and hereby agree the following:-

1.       That the parties are as designed in the instance. That the Pursuer is a Scottish Charity (Scottish Index Number SC034504), a Registered Social Landlord in terms of the Housing (Scotland) Act 2001, and a Housing Association constituted in terms of the Industrial & Provident Societies Act 1965 under Register Number 2572(S). That with reference to the Act of Sederunt (Civil Jurisdiction of the Sheriff Court) 1986 the parties have no reason to believe that either (a) any agreement exists between the parties to the present action prorogating jurisdiction over the subject matter of the present cause to another Court, or (b) any proceedings are or may be pending before another Court involving the same cause of action and between the same parties as those named in the present action. That this Court has jurisdiction. That the Defender's date of birth is 11 June 1987. That the Defender is single and resides with her daughter, born on .1 December 2007. That the Defender entered into a Tenancy Agreement on 4 December 2005 with the Pursuer in respect of the subjects situated at Flat 3/1, 12 Shapinsay Street, Glasgow G22 2JN (hereinafter referred to as "the subjects"). That her tenancy has continued monthly thereafter. That the Defender's tenancy with the Pursuer is a Scottish Secure Tenancy in terms of Section 11 of the Housing (Scotland) Act 2001. That the property is administered on behalf of the Pursuer by their Local Housing Office, Milton Community Homes, having its offices at 450 Ashgill Road, Milton, Glasgow G22 6HJ (hereinafter referred to as "the LHO"). That the subjects comprise a two-apartment flat forming part of a three storey tenement building with two flats on each floor. That one home in the close is owner-occupied whilst the remainder are owned by the Pursuer. That entry to the building is via a controlled-entry system. That a secure entry door and stairs are common to the properties in the block. That there is a centrally-situated back door to the building. That entry 1 of the First Inventory of Productions for the Pursuer is the original Scottish Secure Tenancy Agreement between the Pursuer and the Defender. That entry 2 is a true and accurate copy photograph of the subjects.

2.       That the Defender is bound by the terms of her said Tenancy Agreement to conduct the tenancy in accordance with the provisions contained therein. That the Defender was interviewed prior to signing the Tenancy Agreement. That the Defender was made aware at this interview of the terms of the Tenancy Agreement. That the Defender was provided with a copy of the Tenancy Agreement. That the Defender has breached her Tenancy Agreement by engaging in and permitting anti-social behaviour by others at the subjects, and by her commission of criminal offences, and permitting others to commit criminal offences, at the subjects, all as more particularly described hereafter.

3.       That on 24 December 2005 at approximately 6.10am, the police were called to a disturbance at the subjects involving fighting and screaming. That the Defender informed the police that she had had a disagreement with her brother who had since left the property. That the Defender said she did not wish to make a complaint regarding the incident.

4.       That on 26 December 2005 at about 5.22pm, the police received a complaint regarding a party having been ongoing at the subjects since around 2am that morning. That the complaint alleged shouting, a loud banging noise and jumping on the floor of the Defender's property. That visitors to the Defender's home were said to have been running around in the close all day. That windows were reportedly smashed in the common close. That the Defender and her visitors were reported to have issued threats to the other residents in the close. That police officers attended at the property.

5.       That on 1 January 2006, at approximately 1.09pm a complaint was made to the police of the Defender and a male visitor kicking the door to the subjects. That on being interviewed at the subjects by the police, the Defender advised them that the door had been kicked during the night. That she advised that she knew who was responsible but refused to disclose their identity. That she further stated that had given her friends permission to "put the door in" in her absence. That the Defender indicated that she wanted the door repaired at the Pursuer's expense.

6.       That on 12 January 2006, the police received a report of the Defender having threatened a neighbour with violence. That the Defender was warned by the police regarding her behaviour.

7.       That on 11 October 2006, at approximately 3.05pm, officers from Maryhill Police Station attended at the subjects. That they had received information that there was a quantity of controlled drugs within the Defender's home. That the police forced entry to the subjects. That they found the Defender and another female, Kelly Maguire, within the property. That within the Defender's bedroom the police recovered two separate quantities of diazepam tablets located in a box and a make up bag. That the street value of these tablets amounted to approximately £1,000. That within the kitchen the police recovered a quantity of white polythene bags. That whilst the police were present in the subjects Tracey Lyons attended. That a personal search of Tracey Lyons resulted in the recovery of forty four tablets of the compound commonly known as 'ecstasy', being a class A controlled drug. That Tracey Lyons was charged with contraventions of sections 4(3) (b) and 5(3) and two contraventions of section 5(3) of the Misuse of Drugs Act 1971. That on 16 August 2007 Tracey Lyons pled guilty to the contravention of section 4(3) (b) of the Act, being concerned in the supply of ecstasy, and was ordered to carry out 100 hours of community service. That the Defender and Kelly Maguire were charged with contraventions of Sections 4(3) (b), 5(3) and 5(2) of the Misuse of Drugs Act 1971. That the Defender subsequently pled guilty to the contravention of Section 4(3) (b) of the Act, being concerned in the supply of diazepam. That on 23 October 2007 she was fined £300.00 for the offence. That the Procurator Fiscal accepted pleas of not guilty from Kelly Maguire. That entries 8 and 9 of the First Inventory of Productions for the Pursuer are true and accurate copies of the complaints and extract convictions relative to the Defender and Tracy Lyons pertaining to the offences on 11 October 2006.

8.       That at 1.40am on 21 February 2007, 6.18am on 5 March 2007, 8.24pm on 17 March 2007 and 5.56am on 3 April 2007, loud music and banging noises were heard coming from the Defender's property. That police officers attended at the subjects.

9.       That on 17 March 2007 at approximately 8.26pm, a complaint was made of loud music being played constantly at the subjects. That this complaint was made to the Out of Hours Noise Team, Glasgow Community and Safety Services, Westergate, 11 Hope Street, Glasgow G2 6AB. That officers from this service attended at the subjects at around 8.58pm. That no response was received at the subjects when the officers attended.

10.    That at 1.29pm on 27 April 2007, acting on information that there were controlled substances within the subjects, police officers attended at the Defender's home and conducted a search. That this resulted in the recovery of cannabis resin. That the Defender was charged with a contravention of Section 5(2) of the Misuse of Drugs Act 1971. That she subsequently appeared at Glasgow District Court, pled guilty and was fined £120.00. That entry 10 of the First Inventory of Productions for the Pursuer consists of true and accurate copies of the complaint and extract conviction relative to this offence.

11.    That on 4 March 2008, police officers attended at the subjects as a result of complaints of an ongoing, noisy party. That at around 9.03am, the first report was received of a party which had carried on from the previous night. That on their attendance, the officers could not hear any noise emanating from the subjects. That no answer was received when they sought to gain access. That at around 11.35am a complaint was received that the party had re-commenced and more people were arriving at the subjects. That officers were again unable to gain entry to the subjects. That the door to the subjects was later forcibly opened by police officers. That three males were arrested at the subjects. That one male was charged with Breach of the Peace, resisting arrest, police assault, providing false details and obstructing police officers. That the second male was charged with obstructing police officers and breach of bail. That the third male was charged with obstructing police officers.

12.    That on 6 May 2008, at approximately 12.33am, the police received a report of a fight taking place, and loud music being played from, the subjects. That police officers attended at the subjects and warned the Defender regarding the volume of the music emanating from the subjects.

13.    That complaints were received regarding the behaviour of the Defender and visitors to her property since she took occupancy of the subjects. That as a result of these complaints, the Defender was asked to attend for interview at the LHO on 10 January 2006: that she failed to attend this interview. That another meeting was arranged for 11 January 2006 when the Defender was present. That she was made aware of the nature of the complaints and warned regarding her behaviour. That a full warning letter was issued to the Defender on 11 January 2006. That another complaint quickly followed regarding the Defender's conduct of the Tenancy. That a letter was issued to the Defender on 12 January 2006. That a further interview was arranged for 13 January 2006. That the Defender attended on that date. That after receiving a further complaint regarding the Defender's conduct of the tenancy, the LHO write to her again on 20 February 2006 inviting her to attend a further interview on 22 February 2006. That the Defender failed to appear at the interview on 22 February 2006. That a Housing Officer attended at the subjects on 22 February 2006 but received no response. That entry 3 of the First Inventory of Productions for the Pursuer consists of true and accurate copy letters from the LHO to the Defender.

14.    That on 13 January 2006, the LHO referred the Defender's case to the Pursuer's Neighbour Relations' Team (hereinafter referred to as "the NRT"). That the case was allocated to William May of the NRT. That the Pursuer's NRT is dedicated to the investigation and handling of anti-social behaviour cases involving the Pursuer's tenants. That the Pursuer's NRT Officer, William May, wrote to the Defender inviting her for interviews at the LHO on 7 and 16 March, 12 and 26 April 2006 and 17 April 2007, on all of which dates the Defender failed to attend. That an Anti-Social Behaviour Interview took place on 5 July 2006 at the Defender's home. That the Defender was advised of the action which the Pursuer intended to take against her. That the Defender signed the Anti-Social Behaviour Interview Form, confirming the terms of the meeting of 5 July 2006. That the further interviews with the Defender took place on 4 June 2007 and 12 March 2008. That at the interview on 12 March 2008 the Defender admitted that an incident had taken place at the subjects on 4 March 2008 resulting in police officers attending at her home. That the Defender advised that her brother had been arrested. That the Defender admitted having given her brother the keys to the subjects in the knowledge that he had previously acted in anti-social manner at the tenancy. That entry 4 of the First Inventory of Productions for the Pursuer is a true copy of the form NR15 dated 13 January 2006 referring the Defender's case from the LHO to the NRT. That entry 5 of the First Inventory of Productions for the Pursuer consists of true and accurate copy letters from the NRT to the Defender. That entry 6 of the Pursuer's First Inventory of Productions is a true and accurate copy of the Anti-Social Behaviour Interview Form signed by the Defender and the NRT Officer, William May, at the interview on 5 July 2006.

15.    That the Pursuer applied for Disclosure of Information Reports from Strathclyde Police. That reports were received dated 2 March 2006, 7 July 2006, 10 November 2006, 11 May 2007, 18 May 2007, 28 May 2008 and 3 June 2008. That these reports contain details of incidents occurring at, or in the vicinity of, the subjects, involving the Defender and visitors to the subjects. That entry 7 of the First Inventory of Productions for the Pursuer consists of true and accurate copies of the Disclosure of Information Reports obtained by the Pursuer.

16.    That in accordance with Section 14 of the Housing (Scotland) Act 2001 a Notice of Proceedings for Recovery of Possession (hereinafter referred to as "the NPRP") of the subjects was served upon the Defender. That this NPRP was served at the subjects on 22 September 2008 and became valid on 28 October 2008. That entries 11 and 12 of the First Inventory of Productions for the Pursuer consist of true and accurate copies of the NPRP and relative Certificate of Execution of Service upon the Defender.

17.    That the Defender has acted in breach of her Tenancy Agreement through her behaviour and convictions at, and in the vicinity of, the subjects, and by allowing anti-social behaviour and criminal activity by visitors to the subjects. That she failed or refused to take all reasonable steps not to engage in such behaviour or to prevent her visitors from engaging in such behaviour. That the Defender's behaviour, and the behaviour of her visitors, has caused distress, nuisance and annoyance to her neighbours. That the Defender's neighbours and other residents in the locality continue to advise the Pursuer's LHO that they wish the Defender to be removed from the subjects. That as a Landlord the Pursuer has a duty to ensure the safety of other residents living in the same close and also adjacent to the subjects. That the Defender has breached the terms of her Tenancy Agreement by her behaviour and convictions, and by permitting anti-social behaviour and criminal activity at, and in the vicinity of, the subjects by her visitors.

18.    That proceedings in respect of the subject matter of the present action (with the exception of reference to the incident on 6 May 2008) were previously raised against the Defender at Glasgow Sheriff Court under Court Reference SD1318/08. That the case was due to proceed to Proof on 16 and 17 September 2008. That on 16 September 2008 the Defender's solicitor successfully challenged the validity of the NPRP served. That that action was consequently dismissed with a finding of no expenses being due to or by either party. That entries 13 and 14 of the Second Inventory of Productions for the Pursuer are true and accurate copies of the NPRP and relative Certificate of Execution of Service pertaining to the court action raised against the Defender under Court Reference SD1318/08.

19.    That the Pursuer avers that, taking account of the circumstances of the case, it is reasonable for decree as craved to be granted. That the Defender avers that it is unreasonable for decree as craved to be granted, her position being that no incidents of anti-social behaviour have occurred at or in the vicinity of the subjects since 6 May 2008. That the Pursuer is not in a position to lead evidence of incidents of anti-social behaviour after 6 May 2008.

The submissions for the pursuers

[4] The solicitor for the pursuers submitted that there were four factual reasons why I should grant the order sought: that the last incident of anti-social behaviour occurred on 8 May 2008, which was less than one year before the date of the diet of proof; that even the last documented incident involved warning the defender about the state of her tenancy; that only two months prior to that last incident another disturbance had resulted in the arrest of three males in the flat; and that the case against the defender had been due to proceed to proof in September 2008 in an earlier action but had been unable to do so.

[5] As for the law she said that whether to grant the order sought involved the exercise of a judicial discretion on the issue of reasonableness. Although there were no judicial authorities that obliged a Court to grant such an order in the present case, there were a number of cases decided in the Sheriff Court in which orders made under paragraph 2 of Schedule 2 to the Act where the defender had been convicted of offences under the Misuse of Drugs Act 1971 that involved drug dealing had led the court to be satisfied that it was reasonable to grant decree for recovery of possession. She referred to South Lanarkshire Council v Nugent, Hamilton Sheriff Court, 19 August 2008, Sheriff Principal B A Lockhart, unreported; West Dunbartonshire Council v Crawford; Dumbarton Sheriff Court, 14 October 2008, Sheriff S W H Fraser, unreported; Pineview Housing Co-operative Ltd v Smith 2005 Housing Law Reports 99; City of Glasgow Council v Lockhart 1997 Housing Law Reports 99; and Perth & Kinross Council v Gillies 2002 SCLR 1104. She then for each case resolutely went through their facts and compared, and occasionally contrasted, them with the present case. For each, she submitted that it lent support to her motion for decree.

[6] On the matter of the involvement of Tracey Lyons, she accepted that the terms of the Joint Minute, and in particular paragraph 7 of it, did not allow the pursuers to impute to the defender any knowledge of what Tracey Lyons was doing when she was searched within the subjects.

[7] The solicitor for the pursuers concluded the main part of her submissions by urging that in all the circumstances it was appropriate to grant decree under section 16(2) of the Act.

[8] On whether or not to apply the provisions for adjournment of proceedings set out in section 16(1), she submitted that the case had already been going on for too long, the defender had been involved in incidents of anti-social behaviour which post-dated the birth of her child, she had a conviction for being concerned in the supplying of a controlled drug and although she said that she had reformed that in itself would not stop the court granting decree. Moreover, the pursuers had engaged with the various problems caused by the defender but she did not attend for some of the meetings arranged with her. In addition, she had been made aware of the terms of the Tenancy Agreement prior to signing it. To apply the provisions of section 16(1) would involve the defender remaining in the flat and this would be an ongoing situation for the neighbours who would still have her living by them. Despite the terms of the Joint Minute, the solicitor for the pursuer submitted that while she could not point to anti-social acts which post-dated 6 May 2008, the defender's neighbours were continuing to advise the pursuers that they wished her to be removed, but she conceded that she could not point to any facts in the Joint Minute that supported any reason why the neighbours took that position other than the history of events which had preceded 6 May 2008.

The submissions for the defender

[9] In reply, the solicitor for the defender said that her primary position was that the defender should be assoilzied from the crave of the summons and her secondary position that the court should adjourn the proceedings under section 16(1) of the Act for a suitable period of time. None of the cases cited on behalf of the pursuers was of binding authority. She sought to distinguish the case of South Lanarkshire Council v Nugent on the ground that in Nugent the court declined to accept the defender's evidence that he was a reformed character.

[10] Turning to the provisions of section 16(3)(a) and (c) she submitted that the most relevant part of the section was (c) and this had future effect. The court had to consider whether the defender would continue to be of good behaviour as she had been since 6 May 2008 since there was no averment of any anti-social behaviour post-dating that date. From this the court should infer that she could continue to refrain from such behaviour. She questioned the proposition that historic acts could have a continuing effect, and suggested that the pursuers might have lost patience with the defender and foresaw a risk of future anti-social conduct. In order to gauge that risk, the court should adjourn the cause to see how she behaved. Her daughter was 16 months old. Having regard to the terms of the Joint Minute, the defender could not go beyond that to infer any consequences to her or her daughter of ejection from the property. The solicitor for the defender submitted that the case boiled down to the effect of the defender's conduct on the area in which she and her daughter lived. She conceded that the defender was not in a position to dispute that the pursuers as landlords had taken all reasonable steps in advance of raising the present proceedings to get the defender to realise that she had to change her ways.

[11] With regard to the application or otherwise of the provisions of section 16(1) she submitted that it would be appropriate to adopt them and the conditions that might be imposed for the period of adjournment could be that the defender was not to break the law, not to disturb her neighbours and to conduct her tenancy as she ought to.

[12] On the law, the solicitor for the defender referred to the reported decision in the case of City of Glasgow District Council v Heffron 1997 Housing Law Reports 55. She did so for the sole purpose of extracting from it the proposition that a transformation of lifestyle is a factor that should be taken into account in deciding whether or not to grant decree.

[13] She concluded her submissions by saying that the various cases referred to in the course of submissions might be persuasive but they were not binding and what one had to do was to go back to the terms of the Act. That involved taking account of the defender's behaviour both past, present and future. In that regard the court had to take into account the attitude of the defender's neighbours, the absence of any problems involving the defender since 6 May 2008 and that she had shown she could behave and this gave grounds for reasonable prospects of her future good behaviour.

Discussion

[14] Before considering the evidence in light of the submissions I want to set out the statutory regime that applies. The pursuers have complied with all the preliminary requirements of section 14 and raised the action thereunder. The pursuers seek decree under section 16(2)(a) of the Act. That subsection, read short for present purposes, provides that the court must make an order for recovery of possession if it appears to the court that (i) the ground for recovery of possession is one set out in any of paragraphs 1 to 7 of schedule 2 and (ii) it is reasonable to make the order. Section 16(3) gives detailed assistance with particular factors to have regard to when assessing the issue of reasonableness. Returning to subsection (2), any order thereunder is described expressly as being subject to section 16(1). That subsection provides that the court may, as it thinks fit, adjourn proceedings under section 14 on a ground set out in any of paragraphs 1 to 7 and 15 of schedule 2 for a period or periods, with or without imposing conditions as to payment of outstanding rent or otherwise. This vests in the court an additional discretion, whose two principal features are that its extent is wide, being "as [the court] thinks fit", and it renders any order under subsection (2) subject to it. Accordingly, even in a situation where the court is satisfied that the pursuers in an action for recovery of possession have proved their entitlement to decree, and notwithstanding that subsection (2) directs that the court must make an order for recovery of possession, the court retains that wide discretion to adjourn proceedings. That discretion is not described as being restricted only to certain stages of the proceedings. It must therefore be construed as applying to the proceedings for as long as the action is in dependence and that must include a diet of proof.

[15] In the course of the hearing on evidence, I was directed to a clutch of decisions that were grounded in section 16(2). All emanate from the Sheriff Court. None of them is binding on me. Every case must turn upon its own facts and circumstances. Of particular note is the fact that in none of the cited cases was the Court addressed on the discretion afforded by subsection (1), or where the former Housing (Scotland) Act 1987 governed, section 48(1). Accordingly, untrammelled by authority, I must interpret the discretion, and in particular its scope and applicability. Parliament has made it a wide one. Parliament must be held to have intended that it be applied to take account of considerations in a particular case that prevail over the provisions of section 16(2). Those considerations, it must be presumed, are founded in considerations of an equitable nature, arising out of the individual facts and circumstances of each case, with the aim of giving the Court the fullest opportunity to do proper justice in each case.

[16] In the exercise of the discretion that I have under section 16(1) I think it fit to adjourn this proof for a period of time. I do so for the following reasons.

1. The defender is a single mother. She is aged 21, her date of birth being 11 June 1987.
2. She has a daughter who was born on 1 December 2007. She is therefore at present a few days away from being 17 months old.
3. The defender and her daughter are the sole occupants of the flat. The daughter is dependent upon the defender for her care.
4. The defender's conviction for being concerned in the supplying of diazepam, a Class C drug, dates from 26 September 2007. For that she was fined. I infer from that disposal that her involvement in supplying was towards the very modest end of the spectrum for that type of offence.
5. Her conviction for possessing cannabis resin, then a Class C drug, dates from 2 November 2007. For that she was fined.
6. The pursuers are unable to lead evidence of any acts of anti-social behaviour falling after 6 May 2008. That is a period of almost one year prior to the present day.
7. The passage of time since 6 May 2008 entitles me to conclude that there is scope to consider that she has realised the error of her previous ways not only as regards the criminal law but also as regards her neighbours and other residents in the locality. In this latter regard I cannot place any weight at present on the comment in paragraph 17 of the Joint Minute that neighbours and other residents continue to advise the pursuers' local housing officer that they wish the defender to be removed from the flat. That fact lacks any specification that I could work with and stands in sharp contrast to the later fact that the pursuers are not in a position to lead evidence of incidents of anti-social behaviour after 6 May 2008.
8. There are no grounds of recovery urged except 2 and 7.
9. The pursuers are unable to impute to the defender the actions and subsequent conviction of Tracey Lyons referred to in paragraph 7 of the Joint Minute.

[17] The period of adjournment that I propose is six months. It is for the defender to show during that entire time that she is able and willing to live at peace with her neighbours and other residents in the locality. If she achieves that it may go some way to healing whatever rifts have developed between her and them as a result of her past conduct.

[18] I propose to impose conditions on the defender for the duration of the six months adjournment. They are as follows: -

1.     That she complies in full with the entire terms of her Tenancy Agreement. Without prejudice to that generality that includes relations with her neighbours, avoids excessive noise from the flat and attends for interview in respect of any issue arising out of her tenancy with the pursuers as and when such interview is arranged.

2.     That she does not commit a criminal offence for which she is eventually convicted.

I recognise that these conditions do no more than narrate what she ought to do, but I want them imposed so that she is left in no doubt that for the period of the adjournment she must act and behave as she ought to have done from the beginning of her tenancy.

[19] In reaching the conclusion to adjourn I am mindful of the decisions in the various cases referred to in the discussion. All of them involved defenders who were convicted of offences under the Misuse of Drugs Act 1971. In all of them the Court granted decree of recovery, and in one of them that was affirmed on appeal to the Sheriff Principal. That weight of opinion, persuasive and worthy of respect although not binding, amounts, it might be said, to strong, if not compelling, support for granting decree in such cases. That is however to ignore three relevant considerations. The first is that each case must turn upon its own facts and circumstances. It is not the law that decree will always fall to be granted against anyone convicted of an offence under the Misuse of Drugs Act 1971, even one that involves as serious an offence as dealing in controlled drugs. That is not written into the Act. The second is that to take that approach is to remove any meaningful content from the concept of reasonableness under section 16(2). The third is that it also renders nugatory in such applications the exercise of the discretion under section 16(1).

[20] In exercising my discretion in this way and to this extent I want to make it clear that by adjourning the proof I have made no decision on reasonableness. I consider that the wide discretion I have enables me to reserve my position on that critical issue meantime. It may yet be that the proof has to proceed further on that issue, either in respect of the present evidence, or with any additional relevant evidence that may yet have to be adduced. If this procedure seems at first glance unorthodox all I will say is that it is nowhere proscribed by the language of the relevant statutory provisions, and it seems to me that in the present case the balance of the equities lies firmly in favour of allowing such amendment if that best assists the proper presentation of the real issue in controversy.

[21] In order to gauge the success or otherwise of the period of adjournment I propose to apply the discretion that I have to an extent that I admit appears to be unprecedented, but not proscribed, by allowing the parties to amend their respective pleadings not later than 14 days before the date of the next calling together with any additional productions on which they wish to found. My purpose in giving parties this opportunity is twofold: to give them the chance to include within the scope of the present restricted mode of enquiry any acts or events that occur during the period of adjournment that may have a bearing on the issue of whether it is reasonable to grant the order sought by the pursuers; and to reinforce to the defender that during the adjournment she has to behave in a way that complies in full with the obligations she has under her Tenancy Agreement with the pursuers in respect of the flat. I intend that the hearing at the adjourned diet will simply monitor how the defender has acted over the entire period of six months. Should it then be necessary in the interests of justice to return to proof then a date for that continued diet can be assigned as early as circumstances permit. That said, I reserve the right to give appropriate consideration, if necessary, to a further period of adjournment if the balance of the equities justify that.