Andrew Battenberg And Others V. Firm Of Dunfallandy House And Others
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lady Paton,Lord Brodie |
| Neutral Citation | [2010] CSIH 41 |
| Court | Court of Session |
| Published date | 14 May 2010 |
| Year | 2010 |
| Date | 14 May 2010 |
| Docket Number | A751/05 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lady Paton Lord Brodie | [2010] CSIH 41 A751/05 OPINION OF THE COURT delivered by LORD EASSIE in the Reclaiming Motion for the Second Pursuer in the cause (1) ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG; (2) SALVATORE RUSSO, as representative of the late AILSA MARGARET LEE; and (3) CAPE VALE PTY LIMITED Pursuers; against (1) THE FIRM OF DUNFALLANDY HOUSE; and (2) MICHAEL WILLIAM BARDSLEY AND MRS JANE SUSAN BARDSLEY, the partners thereof as such partners and as individuals Defenders: _______ |
Act: Upton; Lindsays WS (Second Pursuer and Reclaimer)
Alt: Miss Thomson, Solicitor Advocate; Brechin Tindal Oatts (Defenders and Respondents)
14 May 2010
[1] This is a reclaiming motion by the second pursuer directed to recalling, in so far as it concerns the claims advanced in the action by the second pursuer, a decree of absolvitor pronounced by the Lord Ordinary at a continued hearing on the motion roll on 24 March 2009.
[2] The reclaimer, a solicitor practising in New South Wales, is the professional executor of the estate of the late Mrs Ailsa Lee. The action was commenced in 2005 by Mrs Lee, who was the second pursuer, along with her son Andrew Battenberg, who is the first pursuer, and an Australian company, the third pursuer. In the action the pursuers seek to vindicate their respective separate titles to certain items of moveable property owned by each of the pursuers respectively and averred to be in the possession of the defenders in Dunfallandy House, Pitlochry. Among the various conclusions in the summons is a conclusion for interdict and on 2 November 2005 the Lord Ordinary granted interim interdict against the defenders prohibiting them from purporting to sell or otherwise pass title to the goods in question, which are specified in appendices to the summons, and from removing them from the house without the pursuers' consent.
[3] Defences were allowed to be lodged late on 5 January 2006 and the action was thereupon sisted on the motion of the defenders and respondents to allow them to seek legal aid. The sist was recalled on the pursuers' opposed motion on 13 September 2006. Shortly thereafter, namely on 5 October 2006, Mrs Lee died, domiciled in New South Wales. She died testate, but it appears that the identity or entitlement of the executor proved to be contentious and probate was only granted in respect of her estate some eighteen months later in April 2008. Meantime, on 19 December 2007 the agents originally instructed on behalf of the pursuers - Shepherd & Wedderburn WS - withdrew from acting and in early January 2008 new solicitors - Simpson & Marwick WS - were instructed. The case called on various occasions respecting the situation following the death of Mrs Lee, there being no executor in place who could properly represent the interests of the beneficiaries under her testament. But following the appointment of the reclaimer as executor in April 2008 an interlocutor was pronounced on 3 July 2008 giving effect to a minute of transference whereby the action, so far as at the instance of the late Mrs Lee, was transferred to the reclaimer as her executor. Despite the fact that it was only by means of that interlocutor that the reclaimer became a party to the process, the interlocutor of 3 July 2008 proceeded in these terms:
"Appoints the First, Second and Third Pursuers each to lodge in court, caution for expenses in the sum of £10,000.00 Sterling as a condition precedent to further procedure in the cause. ..."
[4] The sum of £10,000 was subsequently provided as caution by the executry estate. However, the letter from the then solicitors, Simpson & Marwick, lodging that sum with the Accountant of Court referred per incuriam to the first pursuer (Mr Battenberg) as the party providing that caution. This resulted in later confusion but the confusion was ultimately resolved on its being established that it was confirmed that the provider of the funds was Mrs Lee's executry estate; and the Lord Ordinary whose interlocutor is reclaimed accepted that to be the position. Caution was not provided by either the first pursuer, Mr Battenberg, or the third pursuer, Cape Vale. However, no doubt because of the terms of the letter lodging the funds with the Accountant of Court, when the defenders chose on 12 February 2009 to enrol the motion which ultimately led to the interlocutor of the Lord Ordinary from which this reclaiming motion arises, in respect of the absence of provision of caution, they sought decree of absolvitor only in respect of the second and third pursuers.
[5] Following intimation to them of that motion, the pursuers' solicitors, Simpson & Marwick, withdrew from acting and on 18 February 2009 the court appointed service on the pursuers of Form 30.2 in the appendix to the Rules of the Court of Session ordaining the pursuers to state whether they insisted in the action. On the same date the court continued the hearing of the motion enrolled on 12 February 2009 to 18 March 2009.
[6] The reclaimer responded to service of that notice by returning to the Deputy Principal Clerk of Session, under cover of a letter of 26 February 2009, the appropriate form in these terms:
"I am insisting in the above cause. My new solicitors' name and address is - to be advised in due course."
Forms, similarly completed by the first and third pursuers, were also sent to the Deputy Principal Clerk under cover of a letter of 2 March 2009 by a director of the third pursuer in which he stated inter alia:
"We, along with Andrew Battenberg and Mrs Lee's estate, certainly do intend to proceed with the court action to achieve the return of our property and are in the process of appointing new solicitors to represent us.
We have enclosed with this letter, signed forms of notice of intention to insist from the company and from Andrew Battenberg. Salvatore Russo, Executor of Mrs Lee's Estate, has mailed a similar notice from Australia, but a photocopy of it is attached for your reference."
The director in question then proceed to narrate that he was currently in the United Kingdom and gave telephone and fax numbers and an e-mail address for contact.
[7] On 17 March 2009 the reclaimer's firm sent a fax to the Court in which they stated inter alia:
"We are currently in the process of instructing solicitors to represent the estate and Mr Alistair Kerr on behalf of the Estate has been in discussion with a number of firms in Scotland in respect of them being retained.
...
As you can appreciate because the estate is Australian, Scottish firms require various protocols be adhered to and completed prior to them taking carriage of the matter".
(Counsel informed us that Mr Kerr was a beneficiary and a member of the UK diplomatic service).
[8] New Scottish solicitors - Pinsent Mason - were in fact instructed on behalf of the reclaimer and the third pursuer and at the continued hearing on Wednesday 18 March 2009 the reclaimer and the third pursuer were duly represented by those agents and appeared by counsel. The first pursuer appeared in person. He told the Lord Ordinary that he had not provided caution and that it was his late mother's estate which had found the caution which had been lodged with the Accountant of Court. Counsel confirmed that the third pursuer had not provided any caution and it was therefore the case that the estate had provided caution. The Lord Ordinary continued the hearing until later in the afternoon of that date to see if matters might be clarified. In the Note which the Lord Ordinary has provided for the purposes of this reclaiming motion, the Lord Ordinary tells us:
"... Mr McConnell [counsel for the second and third pursuers] informed me that he had spoken to the personal assistant of the solicitor in Simpson & Marwick who acted for the second pursuer and been told that the caution had been lodged 'for the mother'. Mr McConnell was in possession of a faxed receipt from Simpson & Marwick for £10,000 received from the estate. He submitted that in the circumstances it would be inappropriate for the action to be dismissed insofar as laid at the instance of the second pursuer and that a further continuation would be necessary. The first pursuer's position remained that he had not lodged caution. Miss Thomson for the defenders stated that, as far as the court was concerned, the document showed that caution had been lodged for the first pursuer and she maintained her motion in respect of the second and third pursuers. I then adjourned the motion further until 24 March 2009 for the question of which pursuer had lodged caution to be clarified."
[9] When the case called in court again on Tuesday 24 March 2009 the first pursuer was present in person but the reclaimer and the third pursuer were not represented because their solicitors had withdrawn from acting in circumstances to which it will be necessary to revert. According to paragraph [5] of the Lord Ordinary's Note, what happened was:
"... Miss Thomson stated that she was no further on with clarifying the question of who had lodged caution. She...
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