Lord ordinary grants interim possession and interdict in respect of sequestrated property in Edinburgh

About this case:

• Citation:
  [2025] CSOH 97
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Richardson

The Accountant in Bankruptcy, as the permanent trustee on the sequestrated estate of the first respondent Andrew Speight, sought an order under section 47(2) of the Court of Session Act 1988 for interim possession of the property. The property was occupied by the first respondent and his partner Frances Speight.

The petition was considered by Lord Richardson in the Outer House of the Court of Session, with E MacEwan, solicitor advocate, appearing for the petitioner and A Murdoch, solicitor advocate, for the respondents.

Continuing threat of breach

An action for division and sale of the property was raised by the petitioner at Edinburgh Sheriff Court in February 2022, with declarator granted in March of the following year. After a protracted procedural history, warrant was granted to eject the respondents from the property in February 2025, with decree extracted on 18 June 2025. Sheriff officers executed the decree on 17 July 2025, entered the property, and changed the locks. However, the respondents moved back in after a gardener they had engaged made arrangements to secure the house again.

As a result of these events, the petitioner raised proceedings seeking an order for removal of the respondents from the property under section 46 of the 1988 Act. The lord ordinary refused the motion on the basis that there was a dispute as to whether Form 4 notice had in fact been served on the respondents. In the alternative, the petitioner moved for an order under section 47(2) for interim possession and to grant interim interdict preventing the respondents from entering the property without the petitioner’s consent.

It was submitted for the petitioner that, against the background of the orders granted in the sheriff court proceedings, there was no dispute that they had the right to remove the respondents to proceed with sale of the property. The respondents’ conduct in respect of the warrant to remove demonstrated a continuing threat of breach, and the narrow factual dispute relied upon by the respondents made little or no practical difference.

The solicitor advocate for the respondents accepted that the petitioner had a strong prima facie case but questioned what the removal of the respondents, pending resolution of these proceedings, would achieve. The respondents were elderly, had lived at the property for more than 50 years, and had nowhere else in Edinburgh to go. On that basis, the balance of convenience favoured refusal.

Heads in the sand

In his decision, Lord Richardson began by assessing the strength of the petitioner’s case: “Following a protracted legal process, there was and could be no dispute that the petitioner had been granted lawful authority to remove the respondents from the property in order to proceed with the sale of the property. The only point raised by the respondents’ answers was whether service of the Form 4 had been properly effected. In this regard, I considered the two affidavits lodged by the petitioner. Both of these speak to: the signature and service of the Form 4; the subsequent posting of the same documentation to the respondents; and the processes which the sheriff officers had in place which ought to have identified any error in service.”

He continued: “As against this, I have a bare assertion in the respondents’ answers. No affidavits were submitted to provide any further explanation of the circumstances. Second, essentially for the same reasons, I considered that the petitioner had established a strong case that there was a continuing breach by the respondents of the petitioner’s right to possession of the property.”

Considering where the balance of convenience lay, Lord Richardson said: “The principal factor which might be seen as weighing against the grant of the petitioner’s motion was the fact that the respondents were presently in possession of the property and, therefore, that grant of the motion would disturb the status quo. In weighing up this factor, I agree with the solicitor advocate for the petitioner that it is important to take account of the immediate circumstances in which the respondents re-gained possession on 17 July 2025 following the actions of the sheriff officers on that day. Prime facie that appeared to me to be precisely the type of unlawful act that was envisaged by the Inner House in Scottish Power v British Energy Generation Ltd (2002).”

He added: “I was sympathetic to the submissions made on behalf of the respondents as to the undoubted disruption which would result from the grant of the petitioner’s motion. However, that sympathy was tempered by a recognition that, in truth, the disruption arose not from what was in issue in the present proceedings but, rather, from the orders that had been granted in the sheriff court proceedings. It appeared to me that, as was candidly recognised by the solicitor advocate on their behalf, the respondents had, for some time, simply been burying their heads in the sand.”

Lord Richardson concluded: “Granting the order would enable the petitioner to progress the lawfully authorised sale of the property in the meantime. I also recognised that if the respondents are ultimately able to vindicate their position in these proceedings, that might give rise to a liability on the part of the petitioner. However, in this eventuality, I could see no reason why an award of damages would not provide the respondents with an adequate remedy.”

The petitioner’s motion was accordingly granted. A subsequent motion for recall was made by the respondents based on the petitioner’s refusal to entertain an offer made by the second respondent to buy out their interest in the property, but this was refused on the basis that this was not unreasonable.