Court of Session (Outer House) — Opinion of Judge Richardson (summarized and anonymized)

Citation: [2025] CSOH 97; Petition P755/25. Date of decision: 14 October 2025.

Factual and Procedural Background

This opinion concerns regulation of possession of a residential property located in The City. The property is owned jointly by the respondents, who also occupy it. The Petitioner is the permanent trustee of the sequestrated estate of the First Respondent; the First Respondent's sequestration date is 17 October 2018 and the First Respondent's interest in the property is vested in the Petitioner under the Bankruptcy (Scotland) Act 2016.

The Petitioner raised an action for division and sale of the property in the Sheriff Court on 16 February 2022. Key procedural events in the Sheriff Court litigation included:

• 21 March 2023: Declarator granted that the Petitioner could insist on division and sale; authority under section 113 of the Bankruptcy (Scotland) Act 2016 granted for sale, consent of the Second Respondent dispensed with, and a surveyor appointed to value the property.
• 19 September 2023: Surveyor's report approved and warrant granted for sale by private bargain.
• Attempts to appeal the 21 March 2023 interlocutor by the First and Second Respondents were refused (First Respondent's appeal refused as late; Second Respondent's late appeal ultimately refused on 10 December 2024). Subsequent attempts to appeal to the Inner House were refused.
• 26 February 2025: Warrant granted to eject the respondents; decree extracted on 18 June 2025.

Dispute arose during enforcement of the warrant to eject. The Petitioner avers that sheriff officers served charges for removing and a Form 4 Notice on the respondents on 27 June 2025, and that sheriff officers executed the ejection on 17 July 2025 by entry and changing the locks. The Respondents deny service of the Form 4 Notice (while accepting that charges for removing were served) and aver that they were absent from The City on 17 July 2025, that they were notified by a gardener of a forced entry and some internal disruption, and that the gardener changed the locks and secured the house.

On 24 July 2025 a surveyor instructed by the Petitioner found the Respondents in occupation; the Respondents refused to remove. The Petitioner then raised proceedings under section 46 of the Court of Session Act 1988 seeking an order for the Respondents to remove, and moved alternatively (and principally) for interim possession under section 47(2) of the 1988 Act together with interim interdict preventing entry without the Petitioner's consent.

The case was heard on multiple dates. On 9 September 2025 the Petitioner's motion for the substantive prayer was refused in hoc statu because of a disputed fact (service of Form 4). The Petitioner's alternative motions for interim possession and interdict were continued and heard on 10 September 2025. Interim orders were granted on 10 September 2025. The Respondents later moved on 2 October 2025 to recall those interim orders, asserting a material change in circumstances (an offer by the Second Respondent to buy out the Petitioner's interest); the motion to recall was refused.

Legal Issues Presented

1. Whether the Petitioner should be granted interim possession of the property and interim interdict under section 47(2) of the Court of Session Act 1988 pending resolution of the proceedings.
2. Whether the Petitioner had established a prima facie case as to its right to possession and a continuing breach by the Respondents.
3. Whether the balance of convenience favoured granting the interim orders (including consideration of the status quo and the Respondents' personal circumstances).
4. Whether the Respondents' later offer (the Second Respondent's offer to buy out the Petitioner) and the Petitioner's response constituted a material change in circumstances warranting recall of the interim orders.

Arguments of the Parties

Petitioner's Arguments (presented by Attorney MacEwan, solicitor advocate, on behalf of the Petitioner from Company A)

• Relied on the approach in Dem-Master Demolition Limited v Alba Plastics Limited [2014] CSIH 58 and Scottish Power Generation Limited v British Energy Generation (UK) Limited 2002 SC 517: the Petitioner must show (1) a prima facie case as to the existence of its right, (2) a continuing breach by the Respondents, and (3) that the balance of convenience favours an interim order.
• Contended there was an extremely strong prima facie case because of the prior Sheriff Court orders authorising sale and ejection; the only disputed factual issue was service of the Form 4.
• Relied on affidavits of two sheriff officers evidencing signature and service of the Form 4, subsequent posting and internal processes that should have identified any error; the Respondents' pleading was a bare denial and the Respondents produced no affidavits to explain circumstances.
• Argued continuing breach shown by the Respondents' conduct and actions in relation to enforcement (re-entry and refusal to vacate).
• Submitted that balance of convenience favoured the Petitioner because interim possession was necessary to progress the lawfully authorised sale (e.g., to obtain up-to-date valuation) and because the Respondents' narrow factual dispute would not defeat the underlying Sheriff Court orders; departure from the status quo was appropriate where the interim order grants relief from a prima facie unlawful act (invoking Scottish Power, para 31).
• Proposed consequential measures (warrants to open, remove, interim interdict) and undertook that the Petitioner would act reasonably in executing orders.

Respondents' Arguments (presented by Attorney Murdoch, solicitor advocate, on behalf of the Respondents from Company B)

• Conceded the Petitioner had a strong prima facie case and did not challenge the Sheriff Court orders themselves, but contended that enforcement (ejection) had not been carried out lawfully because of disputed service of Form 4.
• Focused on balance of convenience: argued removal pending resolution would expose the Petitioner to a potential damages action and would cause substantial disruption to the Respondents, who are elderly, had lived in the property for over 50 years, and have nowhere else in The City to go.
• On recall, asserted a material change in circumstances: the Second Respondent had offered £50,000 to buy out the Petitioner's interest (alleged to be twice the Petitioner's interest), and the Petitioner had acted unreasonably in rejecting that offer by seeking £250,000, grounding its counter-request on sequestration costs rather than a valuation; submitted that the Petitioner's conduct should inform balance of convenience.

Table of Precedents Cited

Court's Reasoning and Analysis

The court treated the principal issue as whether to grant interim possession and an interdict under section 47(2) of the Court of Session Act 1988 and adopted the three-part approach articulated in Dem-Master and Scottish Power:

1. Prime facie case: The court concluded the Petitioner had an extremely strong prima facie case. This conclusion rested on the prior Sheriff Court orders authorising the Petitioner to insist on division and sale and to proceed with ejection. The only live factual dispute was whether service of the Form 4 had occurred; the Petitioner produced two sheriff officers' affidavits describing signature, service, and subsequent posting and systems that should have detected any error. The Respondents had offered only a bare denial in pleadings and provided no affidavits to explain the circumstances. On this basis the court assessed the Petitioner's prospects of establishing its right as good.
2. Continuing breach: The court found a continuing breach by the Respondents: the Respondents had re-entered the property following the execution of the warrant and refused to vacate when a surveyor attended on 24 July 2025. The court considered these facts to demonstrate an ongoing interference with the Petitioner's right to possession.
3. Balance of convenience: The court began its balance assessment from the strength of the Petitioner's prima facie case and prospects of success (a factor favouring the Petitioner, in line with Toynar). The main factor tending against interim relief was disturbance of the status quo because the Respondents were in occupation. The court, however, accepted the Petitioner's submission (drawn from Scottish Power) that where the interim order remedies a prima facie unlawful act (here, re-entry after lawful ejection), less weight should be given to preservation of the status quo. The court also considered the Respondents' personal circumstances (elderly, long-term occupation) with sympathy, but concluded the disruption resulted from the Sheriff Court orders rather than the interim application. The court considered practicalities: interim possession would enable the Petitioner to progress the lawfully authorised sale (e.g., obtain valuation). The court acknowledged a risk that, if the Respondents later prevailed, damages might be payable, but concluded damages would be an adequate remedy.

Having weighed these considerations the court concluded that the balance of convenience favoured the Petitioner and that interim possession and interdict were proportionate, subject to the Petitioner's undertaking to act reasonably in executing the orders.

On the Respondents' recall motion (brought on the basis of an alleged material change in circumstances — a late-stage offer by the Second Respondent to buy out the Petitioner's interest for £50,000 and the Petitioner's counter by email seeking £250,000), the court undertook a focused analysis:

• The court accepted, on balance, that it should consider whether the offer and the Petitioner's response had any impact on the balance of convenience previously reached.
• After reviewing the correspondence and broader context, the court concluded the Petitioner's response could not reasonably be characterised as unreasonable given the late stage of the offer and the absence of an up-to-date independent valuation (the Petitioner's attempts to obtain valuation had been impeded by the Respondents).
• The court further concluded that rejection of the offer did not materially alter the balance of convenience previously assessed and therefore refused the recall motion.

Holding and Implications

Core Ruling: The court GRANTED the Petitioner’s motion under section 47(2) of the Court of Session Act 1988 for interim possession of the property and granted related interim orders (warrants to open, to remove respondents, and interim interdict preventing entry without the Petitioner's consent). The court REFUSED the Respondents' motion to recall those interim orders.

Direct consequences for the parties

• The Petitioner was granted interim possession and may take steps (subject to the court's orders) to enable progression of the lawfully authorised sale, including warrants to access and remove the Respondents.
• The Respondents are restrained from entering the property except with the Petitioner's consent, and remain exposed to enforcement of the Sheriff Court orders unless they successfully vindicate their position in the present proceedings.
• The court recorded an undertaking from the Petitioner's solicitor advocate that the Petitioner would act reasonably in executing the orders. The court acknowledged that if the Respondents ultimately prevail they may have a remedy in damages.

Broader implications

The decision applied established interim relief principles (as in Dem-Master, Scottish Power and Toynar) to a factual matrix involving disputed service of enforcement papers and subsequent re-entry. The opinion does not purport to create new legal principle; it applies existing authorities to the particular facts and emphasizes that where interim relief addresses a prima facie unlawful re-entry, preservation of the status quo is afforded less weight. No new precedent was stated beyond application of those existing authorities to the facts.

Note: This summary is strictly limited to information contained in the provided opinion and has been fully anonymized in accordance with the instructions provided.