Widow’s former solicitor must pay two years’ rent with interest from tenant placed in flat without her knowledge

About this case:

• Citation:
  [2024] SC EDIN 6
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Robert D M Fife

Violet Pringle had sought a total of £300,000 from defender Donald Wightman for his intromissions with money paid to him by the occupant of the flat, including rent and a series of loans from the tenant to the defender in connection with his purchase of the pursuer’s main residence. The defender contended that the action had been raised as the pursuer felt wronged in relation to the sale of her property for undervalue.

The case was heard by Sheriff Robert Fife of Edinburgh Sheriff Court. Forrester, solicitor, appeared for the pursuer and Young, advocate, for the defender.

Not involved in arrangement

In 1976, the pursuer and her late husband purchased a flat in Edinburgh which remained unoccupied for many years. The defender became the Pringles’ solicitor in 2007 and dealt solely with Mr Pringle until his death in 2015. In or around 2007, Mr Wightman suggested to Mr Pringle that a tenant could be put into the flat so the Pringles would not have to pay any ongoing costs.

It was agreed informally between Mr Pringle and the defender that a guest at the guesthouse run by the defender’s wife, Dr Moffat, would move into the flat, with the defender taking over all responsibilities for overheads, maintenance, and expenses. Mr Pringle had no expectation of receiving rent.

The defender charged Dr Moffat a rent of £600 per month up until the end of 2009, with payments totalling £14,400, but since then had occupied the flat rent-free. Other payments totalling £99,000 were made to Mr Wightman for his purchase of the pursuer’s home, which the defender described as a loan arrangement.

The pursuer, who was not involved in the original arrangement, first became aware of Dr Moffat’s occupation of the flat in March 2022, having previously believed that the flat was occupied by a charity free of charge. It was submitted that the defender had failed to produce a full account of intromissions with rent and other sums paid by the tenant and he was liable to pay these sums to the pursuers.

For the defender it was submitted that he was permitted to accept Dr Moffat’s rent in return for attending to the landlord’s obligations under the lease. Any sums other than the £14,400 were not attributable to rent and the pursuer had not proved on balance of probabilities that these were intromissions lawfully due to her.

Absence of documents

In his decision, Sheriff Fife said of the defender’s account: “Having considered Dr Moffat’s evidence and the other evidence, I have concluded what he said that the rent was paid up to date and the £55,000 he inherited was paid to Mr Wightman as advance rent is not reliable. It is inconsistent with other evidence which I have accepted on the balance of probabilities. Dr Moffat wanted to give the impression the rent was paid up to date, in the knowledge he had not paid any rent since 2009.”

He continued: “Mrs Pringle was unable to assist the court in contradicting the purpose of [the payments totalling £99,000]. There is no reliable evidence these were rental payments. While the absence of documentary evidence is unsatisfactory, I have concluded in all the circumstances and on the balance of probabilities, these payments are not attributable to rental payments properly due to Mrs Pringle.”

Assessing what payment was due to the pursuer, the sheriff said: “On the assumption Dr Moffat paid rent, the defender was responsible for all household expenditure including utility bills, insurance, council tax and any maintenance and repair costs during the period from 2007 to 2009. In the absence of any detail on any outgoings, the court is not in a position to form any view on what costs were incurred. In all the circumstances, the defender is due the pursuer the sum of £14,400 in rental payments.”

In determining interest, he concluded: “In the particular circumstances of the case, I have concluded a reasonable approach to adopt is to apply a rate of 4 per cent a year (half the judicial rate) on £14,400 during the period from 1 August 2007 to 1 September 2009, namely £1,152. As the loss of £14,400 had been incurred by 1 September 2009 interest is to apply at 8 per cent a year from 1 September 2009 to the date of decree.”

Interest was therefore given as £17,472 to the date of decree, with the total payment due by the defender being £31,872.