Sheriff Welsh QC has issued an interesting judgment in Smith, Dion-Jones and Herskowit v Uchegbu [2016] SC EDIN 64. Not only is the judgment useful as it recaps the now well-worn tests in quantifying an award against a landlord/landlady in breach, but the question of multiple joint and several tenants is also examined.
In this case there were four tenants under a lease with the landlady – the three pursuers, and an additional person. One aspect of the submissions on behalf of the landlady was that each of the three tenant pursuers should only be entitled to up to three times their individual contribution to the deposit, and not that each should receive three times the whole deposit. So far, so good.
The more interesting question was whether or not it was open to the court to deduct 25% of the total award made owing to the absence of the fourth tenant. The argument made on behalf of the landlady was that as this fourth tenant had not sought to raise an action or become a pursuer in this action, he “could be said to have waived his right to seek sanction and the deposit should be reduced by 25%” (para. 4). In addition, the landlady’s solicitor argued that there was a risk that the fourth tenant might subsequently raise another summary application under the regulations seeking “his share” of the deposit.
The learned Sheriff disagreed with this approach for two reasons. Firstly, he did not know if the fourth tenant had in fact waived his rights. Secondly, and more importantly, it was made clear that any tenant, or one of their number where there are joint and several tenants, can make the summary application. Once that case is decided, the other tenants have to look to the tenant who raised the action for their share of the award, and not to the landlord/landlady. The latter would be able to successfully argue that the issue has been judicially determined (res judicata) and accordingly that any subsequent cases by those tenants, or one of their number, regarding that particular deposit were incompetent.
Whilst this outcome is not at all revolutionary, it is useful that there is now authority for the correct approach.
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