Sheriff Court case in which Ms Strickland raised an action under section 25 of the Conveyancing and Feudal Reform (Scotland) Act 1970 seeking damages from Blemain Finance on the basis that it failed to sell a repossessed property for the best price that could reasonably have been obtained.

Background
Blemain sold the property for £150k after it had been on the market for 12 weeks. After hearing evidence from a charted surveyor to the effect that if Blemain had marketed the property for a longer period a price of £175k could have been obtained, the sheriff concluded that a price of £160k could have been obtained over a further 3 months and awarded damages of £10k. The sheriff made no award with regard to interest on the basis that, the sale of the subjects had resulted in a shortfall of just over £10k with respect to Ms Strickland’s debt to Blemain and the outstanding balance of the debt had nonetheless been frozen by Blemain. (The sheriff taking the view that, after the sale, Blemain’s wrongful withholding of £10k –through its failure to obtain the best price- was eliminated by the fact Ms Strickland was not called upon to make interest payments on the outstanding debt.)

Ms Strickland appealed on the basis that:

1. despite accepting the surveyor’s evidence that a sum greater than £150k ought to have been achievable with more time, when it came to quantification of the increased sum, the sheriff had, for no cogent reason, departed from the surveyor’s evidence; and
2. having specifically precluded consideration of the shortfall for the purposes of determining the principal sum due to Ms Strickland, the sheriff had then taken the existence of the shortfall into account when considering whether an award of interest should be made.

Decision
The sheriff principal refused the appeal in relation to the damages due in respect of the failure to obtain the best price but allowed the appeal on the question of interest.

Best price
With regard to calculation of the damages in respect of the failure to obtain best price, the sheriff had articulated his reasons for the selection of a lesser figure (the fact that there had been no competing offer at the time the offer of £150k had been made, the effect of the recession and the existence of adverse feedback about the condition of the property).

The sheriff principal also took the view that he should be slow to interfere with the sheriff’s decision unless it could be demonstrated clearly, that he had misunderstood the facts, applied the wrong principles or arrived at a conclusion which was manifestly unjust and was not persuaded that any of these features had been made out. In coming to this decision the Sheriff Principal noted that this was a case in which the parties had agreed to dispense with shorthand notes (and, consequently, no transcript of the evidence was available for the purposes of the appeal) and that the sheriff had the advantage of having seen and heard the witnesses involved and had had the opportunity to consider the evidence in its totality.

Interest
On the other hand, the sheriff principal found Ms Strickland’s arguments regarding interest to be well founded: the shortfall having been specifically left out of account by the sheriff, at the request of parties, it was not then open to him to reintroduce it into the case when it came to the question of interest.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.