The recent case of Royal Bank of Scotland Plc. v. Jamieson has rejected a previously accepted practice in relation to the sending of a Calling Up Notice (“CUN”) to the Extractor of the Court of Session. The practical ramifications of this decision are uncertain and this case has raised more questions than it has answered. Further case law is going to be needed to clarify how CUNs are to be dealt with in the future.
A creditor holding a standard security can issue a CUN to call up the loan and seek repayment. In this case, when the creditor (RBS) attempted to serve a CUN on its customer (Jamieson) by way of recorded delivery post and using the Royal Mail’s ‘Track and Trace’ service, it was noted that the status of the calling up notice was “no answer”. The creditor’s agents at this point lodged a CUN with the Extractor despite the original CUN not yet being physically returned to them.
The main point at issue during the appeal was the question of whether or not section 19 of the Conveyancing and Feudal Reform (Scotland) Act 1970 had been complied with. Section 19 sets out the procedure to be adopted once CUNs have been served. Subsection (6) provides that notice shall be sent to the Extractor only when either the debtor’s address is unknown, it is unknown whether they are alive, or the packet containing the calling up notice is returned to the creditor with an intimation that it could not be delivered.
Prior to this case, the use of the Royal Mail’s ‘Track and Trace’ service to lodge the CUN with the Extractor after a “no answer” status had been considered acceptable by the courts. However, the Appeal Sheriff decided to apply a strict interpretation of the legislation. The packet had not been returned and therefore none of the three circumstances under which the CUN could be lodged with the Extractor applied, and as such it was not valid.
This led to the whole action being held incompetent and subsequently dismissed.
One of the few certain results of this case is that a CUN can no longer be lodged with the Extractor until the unsigned notice is physically returned to the creditor. However, problems arise when the CUN is neither signed for, nor returned. This is unfortunately not an uncommon occurrence and so leaves a large number of creditors with the important question of what to do next. Should they simply rely on the fact that the CUN has been sent even though it never actually reached the debtor? This creates a lose-lose situation in which the creditor is unsure whether the courts will hold a sent (but undelivered) CUN as competent, and the debtor might still subsequently be brought to court under a CUN they never actually received.
Additionally, what happens in the case of the Royal Mail retaining the packet for an inordinate length of time? The creditor could simply being forced to wait until it arrives. However, they may be better off in either of these scenarios finding an alternative method to contact the debtor. But the alternative methods (e.g. using a sheriff officer) are also uncertain in both their ability to reach the debtor, and their validity in court (there is already doubt over the competency of a sheriff officer posting the CUN through a letterbox).
Either way, in practice, creditors may now be challenged by debtors as to the competency of a CUN sent to the Extractor. They may be forced to choose between spending further time and resources on following up the failed recorded delivery or just hoping that what they have already done is legally enough.
Meantime, for debtors involved in repossession court proceedings it would be worth checking whether any of the foregoing issues apply as there may be scope to have the action dismissed as incompetent.
As for where the law goes from here, the case provides no guidance on any of the issues mentioned above. Until further cases arise to clarify the law, these questions will remain unanswered, creating uncertainty on all sides, for creditors and debtors alike.
If you have any questions arising out of this article please contact our Dispute Resolution team on 0131 226 8200.