Written by: Paul McConville
Dark corners of the law
Open Justice Week is a project that hopefully will be of great help in demystifying the courts. Whilst people read about high profile criminal case, the ‘bread and butter’ court work which is most likely to affect the public is never mentioned. It’s not so much shining light on to the dark corners of the law but rather looking at the bits no one ever bothers about, until they have the misfortune to be there.
Therefore as a matter of public legal education, this project is to be highly commended.
Some people get the glamorous jobs – this week reporters and members of the public will be writing about the ‘in court’ experience in the High Courts of Scotland, in the Appeal Court in Edinburgh, and from Jury Trials across Scotland. However, I am reporting from the civil court at Hamilton – situated within an office building in a business park, about 500 yards from the main court building. Whereas Hamilton Sheriff Court, proper, is a fine old sandstone building, renovated to a 21st century standard, the civil court does not look, even from inside, too much like a courthouse.
An important day
Inside Court ‘A’ however, on this Monday morning, there are people for whom the most important event of their year is taking place – this court is dealing with eviction cases, mainly for rent arrears. The courtroom itself is modern, but not overly large. There is seating for about 30 people in the public area, and room round the court table for around eight lawyers.
As the clock ticks to 10am, the Court Officer busies himself by taking the names of the few members of the public who have come to court for their cases. This will allow them to be dealt with first.
There are 174 tenancy cases to be dealt with in this courtroom between now and 2.30 pm – allowing for a one hour lunch.
This is important as, according to the court list, there are 174 tenancy cases to be dealt with in this courtroom between now and 2.30 pm (allowing for a one hour lunch adjournment at 1pm). This is actually a low number of cases – the tenancy court can have as many as 250 cases calling in it some Mondays. Because the local authorities can write in advance to the court asking for continuations of the cases where this in uncontroversial, not all the 174 matters will need to be dealt with individually today, but many will.
The most common names on the court lists belong to the two local authorities, part of whose boundaries fall within the jurisdiction of Hamilton Sheriff Court, being North and South Lanarkshire Councils.
Hamilton is one of the busiest courts in Scotland, covering the major towns of Hamilton, Motherwell, Wishaw and East Kilbride, together with smaller towns and villages across a wide area.
As well as the cases for the councils, there is a sprinkling of actions raised by Housing Associations. Today there do not seem to be any cases on the lists raised by private landlords.
Like an iceberg
The lawyers round the table are there exclusively for the Housing Associations and the Councils. Few, if any, tenants engage a private solicitor to act for them. This is because of the perceived difficulties in being granted legal aid for these cases, and also because lawyers feel that it is uneconomical for them to act.
Tenancy cases like these are treated as ‘Summary Cause’ cases, meaning that procedure is more straight forward than ‘Ordinary’ procedure, but the fees paid for the work are less too. This is despite the importance of the cases to the tenants. They run the risk of homelessness for them and for their families. However, that importance does not result in lawyers being paid what they see as a proper rate for the job.
There is one person there who is acting for a number of the tenants – the In Court Adviser. His role is to provide assistance to people in connection with cases such as these, and at Hamilton anyway, this extends to representation. The In Court Adviser works hand in hand with the local Citizen’s Advice Bureau, which manages the service.
The Money Advisers and generalist advisers in the CAB will refer cases to the In Court Adviser, as will the local Money Advice centres.
The In Court Adviser’s work for the tenancy court is rather like an iceberg – much of the last couple of days of the previous week is spent on the phone to the local authorities seeing whether they are looking for decrees for eviction in any of the cases where the In Court Adviser has already become involved. If the tenant has reached an agreement to pay, has this been maintained? If the tenant has applied for Housing Benefit, has this been awarded?
The In Court Adviser has been in touch with his clients to tell them if they need to come to court today. He has only needed a couple of clients in, and after they have shown up at his office within the court, he has been able to persuade the Council representatives to give them more time to sort out their problems.
The In Court Adviser sits at the court table, the only person there not wearing a gown.
In the court, thankfully, there are not 174 members of the public in attendance. There are in fact only half a dozen as the clock gets to 10 am.
At that stage the Court Officer, who has already given his list to the Clerk, goes off to get the Sheriff and leads him on to the bench, shouting ‘Court – all rise’ as he does so.
After bowing back and forward between the lawyers and the Sheriff, the cases start being called.
The presiding judge today is Sheriff Scullion.
The Clerk of court calls out the name of the first case, and the member of the public who is defending it come forward. The lawyer for the Council explains to the court that the tenant is not co-operating, and that rent arrears are increasing.
The Sheriff asks the tenant to explain how she plans to deal with the arrears. He listens patiently and, seeing that the experience of coming to court has impressed the seriousness of the situation on her, agrees to continue the case for her to make payments towards the arrears. The cases continue, one after the other, until the members of the public are gone.
It is clear as the court progresses that the Sheriff appreciates that people who take the time and trouble to come to court, or to have consulted the In Court Adviser, are motivated to try to resolve their rent problems. No one who attends court today, or who is represented, has an eviction order granted against them.
However, once the clerk gets to the cases where the tenants have not come to court themselves, nor arranged for representation, matters change.
The representatives of both councils ask for decrees of eviction in some, but by no means all, of their cases.
Sheriff Scullion takes his time with each one to ensure that he has been given as much information as possible about the absent tenant’s situation before deciding if a decree for eviction should be granted. If recent and substantial payments towards arrears have been made, he is likely to continue a case, but, where the councils have taken steps to engage with the tenant, and been rebuffed, the
Sheriff finds that there are some cases where he must grant an eviction order.
The making of an order does not mean that the tenant will be evicted. One case calls, for example, where the lawyer for the local authority tells the court that this is the seventh separate rent arrears eviction case brought against this tenant in the last 11 years. On each and every occasion the tenant has paid the arrears in full, though only at the point just before the eviction takes place.
Whilst the Sheriff might feel, on a human level, that granting these orders is unpleasant, he is bound to be impartial, and the councils have as much right to the court’s ‘sympathy’ as the tenants.
As it turns out, even taking his time to ensure that justice is done in all cases, he reaches the end of the court roll just after mid-day. I have lost count of the number of cases where eviction orders have been granted, but most tenants have been given time to keep their payments going, with the cases due back to court in a few weeks or months so that their adherence to the schedule can be monitored.
Whereas in previous weeks there have been detailed legal arguments about some of the cases, including one where the European Convention on Human Rights was called in aid of a person whose parent, the tenant, had already had an eviction order granted, today’s court has been comparatively straight forward.
What Lessons Can Be Learned?
- Not too late: The most important one for anyone who is taken to court by their landlord regarding rent arrears is that it is still not too late to solve the problems. Many of the cases come before the courts because housing benefit, for example, has not been determined correctly, perhaps because the tenant has not known all of the details he ought to provide. Especially in the present climate, where loss of a job is common, the time lag between a person ‘signing on’ and their housing benefit being awarded can lead to arrears of rent and a court summons.
- Get advice: Anyone who is called to court by their landlord in these circumstances should, as soon as they possibly can, get advice, whether from a solicitor, or from a local Citizen’s Advice Bureau or In Court Advice Service. Often the tenant is not aware of what they can do to avoid eviction, and they may not have the confidence to negotiate a repayment plan directly with the landlord. The local authorities do not want to evict people – especially as they find themselves having to re-house the tenant or their families under homelessness legislation, but, as in the case of the tenant with seven court actions over the years, sometimes that is the only way of getting through to the tenant.
Today was a microcosm of how these cases proceed at Hamilton – no one who turned up at court, or who had sought the assistance of a representative had a decree pass against them. Many who did neither did have court orders for eviction granted.
As I said at the start, this is not a glamorous or exciting court. Indeed most of it takes place without anyone, other than the representatives of the parties, there. However it is a vital part of the operation of the Scottish court system.
Housing cases, like these and the mortgage arrears cases, make up the majority of the civil cases which actually call in court in Scotland. Yet for all that importance, very little is known about how it operates, and clients who do attend do so with a great fear of the unknown. If my contribution to the Open Justice Week is to let people who are called to court in these cases know that the Sheriffs are always looking for fair solutions, short of eviction or re-possession if possible, and that they should, as soon as they can, take advice, then it will be well worthwhile.
A version first appeared on Paul’s site scotslawthoughts.wordpress.com.