Appeal From The Sheriff Appeal Court By Dr Andrei Sheveleu Against Drs Andrew Brown And Christopher Ducker
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Brodie,Lord President |
| Neutral Citation | [2018] CSIH 68 |
| Date | 31 October 2018 |
| Docket Number | XA7/19 |
| Court | Court of Session |
| Published date | 31 October 2018 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2018] CSIH 68
XA7/19
Lord President
Lord Brodie
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD BRODIE
in the Appeal from the Sheriff Appeal Court
by
DR ANDREI SHEVELEU
Pursuer and Appellant
against
DRS ANDREW BROWN AND CHRISTOPHER DUCKER
Defenders and Respondents
Pursuer and Appellant: Isla Davie, Advocate; Young & Partners, Dunfermline
Defenders and Respondents; McIlvride QC; Harper Macleod LLP
31 October 2018
Introduction
[1] This is an appeal from the Sheriff Appeal Court (“SAC”) with the permission of this
court. Whereas initially it appeared to raise questions about the proper function and scope
of sections 38 and 42 of the Partnership Act 1890 in the winding-up of a partnership, as the
2
argument developed it came more to focus on the proper import of sheriff’s (unchallenged)
findings-in-fact.
[2] The action was raised in the Sheriff Court of South Strathclyde, Dumfries and
Galloway at Stranraer. It is for count, reckoning and payment. It is at the instance of one
former partner of a dissolved firm of general medical practitioners (the Southern Machars
Group Practice) against the other two former partners. After proof on a Note of Objection to
Accounts and Answers, the sheriff, in terms of an interlocutor dated 20 December 2016,
found the defenders liable to make payment to the pursuer in the sum of £15,949, together
with certain payments of interest. The sheriff held that in so far as the pursuer had any
claim for profits arising subsequent to the date of dissolution of the partnership that fell to
be quantified by reference to section 42 of the Act.
[3] The pursuer appealed to the SAC on the grounds that the sheriff had left out of
account certain income accruing subsequent to the date of dissolution of the partnership and
paid to the defenders but which fell to be treated as belonging to the partnership and
therefore, by virtue of sections 24 and 29 of the 1890 Act, shared between the former
partners as part of the settlement on winding-up. It was the pursuer’s contention that the
income arose from an uncompleted transaction of the former partnership which must be
taken to have been completed by the defenders by virtue of the authority conferred on them
by section 38 of the 1890 Act. It was further contended that the defenders were therefore
obliged to account to the pursuer for his share of what properly were profits of the former
partnership. The SAC rejected that contention and on 25 August 2017 refused the appeal.
Permission to appeal having been refused by the SAC, it was granted by this court on
7 December 2017.
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