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On appeal from: [2009] CSIH 36

Raised questions as to the proper construction of provisions of the Conveyancing and Feudal Reform (Scotland) Act 1970 which establish and regulate the form of security over heritable property known as a “standard security”. In particular, the appeal addressed the circumstances in which a creditor was entitled to eject the debtor from the property over which the security was granted. The bank applied for an order to eject the appellant couples from their homes. Under the Heritable Securities (Scotland) Act 1894, s 5, a creditor can only do so if the proprietor had failed to repay the sum in question “after formal requisition”. An Extra Division held that a certificate of default which the bank had lodged in court, in accordance with s 24(2) of the 1970 Act, constituted such formal requisition. The Supreme Court unanimously allowed the appeal and held that the bank was not entitled to the remedies sought. A certificate of default was simply a piece of evidence created for use in proceedings and, contrary to the opinion of the Extra Division, could not constitute a “formal requisition” for the purposes of s 5, since that requisition has to be made before any proceedings are begun.

For judgment, please download: [2010] UKSC 50
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII