HC Deb 17 December 1973 vol 866 cc996-8

Amendments made: No. 16, in page 7, line 17, after 'sub-lease', insert 'executed after the commencement of this Act'.

No. 18, in page 7, line 17, at end insert 'so executed'.—[The Lord Advocate.]

5.30 p.m.

The Lord Advocate

I beg to move Amendment No. 19, in page 7, leave out line 18 and insert—

'(2) The pursuer in an action under section 7 of this Act shall give such intimation thereof as the court may direct—'.

Mr. Deputy Speaker

With this we can also discuss Government Amendment No. 22.

The Lord Advocate

These amendments relate to technical matters of court procedure. As drafted, Clause 8(2) might possibly give rise to some doubt. It will be appreciated that this is a Bill of considerable complexity and we are always trying to simplify matters. I am not at all sure that we have finished that process.

What we are trying to do in this Bill, as the hon. Member for Renfrew, West (Mr. Buchan) will understand, since his Bill in 1970 was complex enough, is to keep it as clear and as simple as possible.

Two doubts could arise on Clause 8(2) as it stands. The first is whether, in a case where the lease is subject to a sublease or a heritable security, an action of removing under Clause 7 could be brought at all if all the persons listed in subsection (2) had not received intimation of the action. For example, this could arise if some of them were untraceable. The second problem is whether intimation of the action was of itself sufficient to give the person receiving the information the right to appear and plead in the action, or whether the intimation was merely intended to afford that person an opportunity to initiate his own arrangements for safeguarding his own position.

The amendments are designed to meet these two possible difficulties. I am not saying that they would necessarily arise, but they could conceivably arise. Amendment No. 19 removes the first doubt by giving the court a clear discretion about the method of intimation to be adopted. This is always a satisfactory course to follow. Where there is doubt about tracing interested parties it is always desirable to give the court discretion as to what should satisfy the requirements of intimation.

Amendment No. 22 deals with the second possible difficulty by stating quite explicitly that a person having any of the interests listed in the subsection has the same pleas open to him as has the defender in the action. This whole clause is highly technical, and I extend once again the invitation which I extended to the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) in Committee—that if he should wish to discuss these amendments to the clause with me at a later stage, I would be glad to do so.

Mr. Ronald King Murray

I welcome these amendments. I think they are a definite improvement.

Amendment agreed to.

Amendments made: No. 20, in page 7, line 28, leave out from 'to' to 'lessee' in line 29 and insert 'be the'.

No. 21, in page 7, line 30, leave out second 'of' and insert 'the'.

No. 22, in page 7, line 31, at end insert: 'and any such creditor or lessee as aforesaid shall, subject to the provisions of this section, be entitled to plead in the action any defence which could be pleaded by the defender in the action,'.—[The Lord Advocate.]

The Lord Advocate

I beg to move Amendment No. 23, in page 7, line 34, at end insert 'derived from that lease'.

This amendment stands on its own. Its purpose is clarification. It does not alter the basic meaning of Clause 8(3), the effect of which is to ensure that the defence provided under Clause 7(4)—namely, that residential use of a long lease had been approved by the landlord—is to be available only to persons having the actual right of occupancy of the residential property in question.

This meaning is already sufficiently apparent in the context of Clause 8 taken as a whole, but the difficulty is that if subsection (3) is quoted out of context in the form of notice to terminate residential use—and in Schedule 3 there is reference to the quoting of Clause 8(3)—it might not be quite so apparent. Amendment No. 23, therefore, is really a drafting amendment to make the provision perfectly clear, even though it is only quoted out of context in the context of the schedule to which I have referred.

Amendment agreed to.

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