Anne Meldrum Allison Maclehose V. Patrick Collinge Gravat Wilson+charles William Pagan
| Jurisdiction | Scotland |
| Judge | Lady Rae |
| Neutral Citation | [2014] CSOH 50 |
| Court | Court of Session |
| Published date | 13 March 2014 |
| Year | 2014 |
| Date | 13 March 2014 |
| Docket Number | A504/11 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 50 | |
| A504/11 | OPINION OF RITA EMILIA ANNA RAE QC (Sitting as a Temporary Judge) in the cause Anne Meldrum Allison MacLehose Pursuer; against Patrick Collinge Gravatt Wilson and Charles William Pagan Defenders: ________________ |
Pursuer: Campbell QC; Thorntons Law
Defender: Barne; Balfour and Manson LLP
13 March 2014
Introduction
[1] This is an action for damages by a widow against the former executors of her deceased husband's estate as a consequence of the defenders' alleged failures in connection with the administration of the estate. The action is related to a number of actions which have been raised in the Court of Session since the death of a farmer, James Clark. The action came before me for debate at a procedure roll which commenced on 27 September 2013 and concluded on 16 October 2013. The defenders seek absolvitor or dismissal of the action while the pursuer seeks a proof before answer on the present pleadings.
[2] The deceased resided in Fife and was formerly married to Mrs Joan Pentland-Clark. That marriage came to an end by divorce in 1977 and their financial arrangements upon divorce were regulated by a Minute of Agreement dated 7 October 1977 ("the Minute of Agreement"). This agreement made provision inter alia for payment of an allowance to Mrs Pentland-Clark until her remarriage or death. The deceased subsequently married the pursuer in 1982. The deceased executed a will on 20 November 1985 and registered in the Books of Council and Session on 12 December 1985 ("the Will"). In that Will the deceased bequeathed his whole estate equally amongst his widow and his three surviving children. The Will appointed the pursuer and Mr John Simpson Wilson as the deceased's executors. Mr Clark died on 5 December 1985. The first defender was assumed as an additional executor conform to a Deed of Assumption dated 13 December 1985. The pursuer resigned as executrix on 25 August 1986 and her resignation was acknowledged on 2 September 1986. Mr John Wilson died on 27 May 1991 and the second defender was assumed as an executor by Deed of Assumption dated 13 June and 21 June 1991. Messrs J & G Wilson, solicitors, Kinross, acted for the executors of the deceased until 1 July 1991 when Messrs Pagan Osborne, solicitors, Cupar, commenced acting for them. The present defenders were removed from office as executors by interlocutor of the Court of Session on 23 March 1999.
[3] After Mr Clark's death, a number of disputes arose amongst the pursuer, the beneficiaries and the defenders as then executors of the deceased's estate. Several actions were raised by the children of the deceased against the present pursuer and the executors between 1986 and 1997. In order to attempt to resolve these disputes, a mediation took place in or around October 1997 and settlement was achieved. As part of that agreement the pursuer was to pay the sum of £145,000 to the deceased's children. In addition the sum of £100,000 representing the value of partnership assets belonging to the pursuer was to be paid to her from the estate. Although not invited to the mediation process parties appear to agree in the pleadings that without the influence of Mrs Pentland-Clark on them her children would not have agreed to the settlement terms ultimately agreed at the mediation. Parties to the mediation undertook to make no claim "against the executors or their advisers, past or present, in respect of any act or omissions to date, or arising out of the implementation thereof".
[4] After the mediation was concluded, agreement reached and payments made, the executors had a number of issues outstanding, one being the amount due to Mrs Pentland-Clark as a principal creditor and a second being the liability on the estate as a consequence of the deceased's interest in Lloyds. This resulted in the executors requiring to petition the Court of Session for directions. The estate was identified as being insolvent. Mrs Pentland-Clark petitioned the court for sequestration of the estate and the appointment of a judicial factor. This led to the appointment of Mr John Hamilton Macfie as judicial factor. Mr Macfie presented an interim report to the court on 11 October 2000 and in November 2000 he was appointed permanent judicial factor. Said report is lodged as a production no 6/3 of Process and is referred to and incorporated into the pursuer's pleadings. Mr Macfie died on 18 July 2006 and despite the fact that she was already pursuing a personal action against the executors, Mrs Pentland-Clark was appointed judicial factor.
[5] The history of litigations arising out of this executry is complicated and convoluted. The disputes identified by Mr Macfie are fully detailed in his report dated 11 October 2000. It seems to me from that report that all of the actions identified there were actions by the children of the deceased and not by Mrs Pentland-Clark. Despite this the pursuer at article V of condescendence includes them in the list of actions which have occasioned her legal expense and the implication appears to be that she is entitled to claim those expenses because of the failure to wind up the estate properly. I am not clear whether and if so, to what extent expenses relating to actions by the children are included in the pursuer's present claim. In article VII of condescendence the pursuer states that "between October 1997 (the date of the Mediation) and the date hereof, the pursuer has incurred legal expenses ....totalling £433,006 in defending legal proceedings commenced against her by Mrs Pentland-Clark and the children." As I understood the summary of the factual background, the report of Mr Macfie and the submissions from parties, the actions involving the deceased's children as pursuers pre-dated the mediation. I note also in article VI of condescendence at page 22 of the Record the pursuer complains that had Mrs Pentland-Clark "been included" in the mediation process "and had she been paid that which was due to her, she could not have raised actions involving the pursuer for the next following two decades or more, apoealling(sic) at each stage when she lost, and thereby causing the pursuer to sustain the loss which she has." This would again imply that the pursuer is seeking expenses for actions raised more than 20 years prior to the raising of the action in 2011, namely from 1991.
[6] Mrs Pentland-Clark raised a personal action against the pursuer and the executors in April 2004. That action was dismissed by Lady Clark in September 2006. Mrs Pentland-Clark reclaimed and in June 2009 the reclaiming motion was refused.
[7] In December 2003 Mr Macfie raised an action in his capacity as judicial factor against the present executors claiming that the executors had made certain payments disabling the estate from meeting its obligations to Mrs Pentland-Clark. The action was sisted and the judicial factor intimated in or about March 2004 that the action was not to be insisted upon. My understanding was that this was to do with a lack of funding. Mrs Pentland-Clark took over the action at some point after she became judicial factor in July 2007. She expanded that action. The action was eventually dismissed against the pursuer by Lord McEwan in August 2011. Mrs Pentland-Clark reclaimed unsuccessfully in March 2012. She subsequently sought leave to appeal to the Supreme Court but that was refused in or about July 2012.
[8] The present action was signeted on 11 October 2011 and served on 14 October 2011. The defenders are sued in their capacity as executors of Mr Clark's estate.
[9] The pursuer, in her pleadings, complains inter alia that the former wife of the deceased, Mrs Pentland-Clark, was not invited to participate in the mediation process. As a result of this, it is averred, the pursuer required to defend a number of court actions at the instance of Mrs Pentland-Clark and the deceased's children occasioning considerable expense. The pursuer also avers that had the defenders wound up the estate properly and had they settled the debt due to Mrs Pentland-Clark, Mrs Pentland-Clark would have been unable to raise any legal actions against her. The present action seeks repayment of losses suffered by the pursuer as a result of defending these actions.
[10] The pursuer also seeks repayment of said sum of £145,000. She avers in article VII of condescendence the following:
"at the mediation the pursuer has agreed to compromise the alleged claims against her by the children in the sum of £145,000, ....for the payment of which sum from her own resources she has secured no benefit or advantage nor any respite from litigation. As a result of the failure of the defenders to wind up the estate of the deceased the payment of the £145,000 has been made in vain and has failed to achieve its intended purpose."
Submissions by the defenders
[11] The primary position for the defenders was to seek absolvitor on the ground that the action had prescribed. A number of matters raised under this head of argument, particularly in relation to relevancy of the pleadings, inevitably overlapped other issues raised under the separate heads and all as helpfully summarised in the defenders' note of arguments. I shall deal with those other heads of argument in due course.
[12] The present defenders were removed as executors by interlocutor dated 23 March 1999 accordingly any action against them for alleged failings during their period of administration had prescribed. (Sections 6 and 11 and schedule 1 of the Prescription and Limitation (Scotland) Act 1973.) It was submitted by reference to the case of Pelagic Freezing Ltd v Lovie Construction Ltd [2010] CSOH 145 that the issue of prescription having been raised, it was for the pursuers to make relevant averments which, if proved, showed that the action had not prescribed. The pursuer accepted this proposition as a correct statement of the law. Similarly the pursuer...
To continue reading
Request your trial
-
The Judicial Factor For The James Clark Executry Estate Mrs Joan Pentland Clark Against Mr Patrick Collinge Gravatt Wilson As Executor Of The Late James Clark As An Individual And Mr Charlges William Pagan As Partner In The Firm Messrs Pagan Osborne, Solicitors As Executor Of The Late James Clark And As An Individual And Mrs Joanna Helen May Clark, Mr James Clark And Mrs Carolyn Elizabeth Clark
... ... half share of the partnership assets to Mrs Anne M A Clark on 29 November 1985 conform to ... ...