EDINBURGH TOURS LIMITED v. MR DIAMAN SINGH

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal adheres to the sheriff's interlocutor of 17 December 2010; remits the cause to the sheriff to proceed as accords; finds the pursuers and appellants liable to the defender and respondent in the expenses of the appeal all same may be taxed by the Auditor of Court.

The current action is for declarator of irritancy terminating the sub-lease; to ordain the respondent to remove from the premises and for decree for payment of the sums due together with interest. The appellants also seek expenses.

The defender and respondent in answer pleads that the sub-lease has not been validly terminated. In Answer 5 he states "explained and averred the notice dated 28 April 2010 was not served upon the defenders. A letter from Royal Mail PLC dated 28 May 2010 confirming same is produced herewith, referred to for its terms and is incorporated herein brevitatis causa. Having failed to serve an irritancy notice upon the defender, the pursuers' notice dated 18 May 2010 purporting to terminate the parties' lease was of no legal effect".

The appellants sought debate on their first preliminary plea which is a plea to the relevancy of the defender's averments. The appellants seek decree de plano alternatively they argue that the averments in Answer 4 should be excluded from probation and a proof before answer allowed. Following debate on 25 November 2010 the sheriff repelled the preliminary plea for the appellants and allowed parties a proof on the pleadings set out in the record (No 9 of process).

However, the pre-irritancy warning notice which is the subject of debate (pursuers' letter of 28 April 2010 ) must be construed in accordance with section 4 of the Act which regulates such notices and the requirements of such notices. The section deals with irritancy arising from monetary breaches of a lease, as here, and sub-section 4 states: