Charlotte Liston Sutherland V. The Advocate General For Scotland For And On Behalf Of The Commissioners For Her Majesty's Revenue And Customs
| Jurisdiction | Scotland |
| Judge | Lord Menzies |
| Neutral Citation | [2006] CSOH 10 |
| Published date | 27 January 2006 |
| Court | Court of Session |
| Date | 27 January 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 10 | |
| OPINION OF LORD MENZIES in the Petition of CHARLOTTE LISTON SUTHERLAND Petitioner; against THE ADVOCATE GENERAL FOR SCOTLAND FOR AND ON BEHALF OF THE COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS Respondent: ________________ |
Petitioner: Party
Respondent: Paterson; HM Milne, Solicitor (Scotland) HM Revenue & Customs
27 January 2006
[1] This is a petition for recall of sequestration in terms of sections 15, 16 and 17 of the Bankruptcy (Scotland) Act 1985. It is agreed between the parties that the petitioner was sequestrated by this Court following upon a petition at the instance of the respondent for and on behalf of the Commissioners for Her Majesty's Revenue and Customs, which was presented on 17 May 2005. The basis on which the respondent sought sequestration of the petitioner was a decree of this Court extracted on 22 March 2005 decerning against the petitioner for payment of taxed expenses amounting to £11,468.43 in a petition at the instance of the present petitioner. In that petition the petitioner sought suspension of a decree of sequestration awarded against her on 9 March 1989 in a petition at the instance of the Lord Advocate for and on behalf of the Commissioners for Inland Revenue. The petition at the instance of the present petitioner also sought interdict against the respondent from taking any further steps or proceedings in that sequestration until the conclusion of an action for reduction at the instance of the present petitioner, and further sought damages of £48,166,364.00. The action of reduction at the instance of the present petitioner was unsuccessful. The Lord Ordinary found against the present petitioner in that action by interlocutor dated 14 November 1997; the petitioner reclaimed against this interlocutor, and her reclaiming motion was refused on 14 October 1998. The petition for suspension and interdict was also unsuccessful; the Lord Ordinary found against the present petitioner by interlocutor dated 5 June 2003; the petitioner reclaimed against this interlocutor, and her reclaiming motion was refused on 17 December 2003. The petition for suspension and interdict appears to have been lodged in the summer of 1991, and so predated the Scotland Act 1998 by several years. It was served upon the Lord Advocate for and on behalf of the Commissioners for Inland Revenue. The Lord Advocate lodged answers. Following upon the Scotland Act 1998, adjustments to those answers were made on behalf of the Advocate General as representing the Commissioners of Inland Revenue, but the petitioner did not seek to amend her petition. Following on the refusal of her reclaiming motion the decree for expenses referred to above repeated the names and designations of the parties named in the petition.
[2] In the present petition as originally presented, all that the petitioner sought was recall of the sequestration dated 19 May 2005. The averments on which the petitioner relied at that time fall under two heads of argument. The first is that the Advocate General for Scotland for and on behalf of the Commissioners for Her Majesty's Revenue and Customs is not a "qualified creditor" for the purposes of section 5(1)(b) of the Bankruptcy (Scotland) Act 1985 because the charge was not at the instance of the Advocate General for Scotland for and on behalf of the Commissioners for Her Majesty's Revenue and Customs. Nothing in the oath, the extract decree or the execution of charge disclosed any debt owed by the present petitioner to the present respondent. Second, the petitioner argued that the only reason for her raising the petition for suspension and interdict was that the Accountant in Bankruptcy had failed to perform his statutory duty by bringing the pursuer's sequestration to an end and by continuing to act as interim trustee, and that any liability to pay expenses in the proceedings for suspension and interdict was truly a liability of the Accountant in Bankruptcy.
[3] Following on the lodging of answers to the present petition by the respondent, the petitioner availed herself of the opportunity to adjust the petition. By adjustments dated November 2005 the petitioner sought to increase radically the extent of the remedies claimed in the petition, and changed the basis of the petition. In addition to the averments referred to above (which were substantially expanded) the petitioner added lengthy averments in support of several further arguments. She averred that the Lord Ordinary erred in law on 30 June 2005 in awarding sequestration and sought recall of the interlocutors of the Lord Ordinary dated 19 May and 30 June 2005. She sought recall of the sequestration granted on 31 January 1989. She sought damages against the Advocate General for Scotland in the sum of £48,166,364.00; and she added allegations that all decrees in absence, extracts, warrants, certificates and charges against her were incompetent, null and void and that both sequestrations were wrongful, fraudulent and malicious. She relied on the Scotland Act 1998, the European Convention for the Protection of Fundamental Rights and Freedoms and the Human Rights Act 1998.
[4] Before considering the merits of the arguments advanced in the petition as originally presented, it is appropriate to deal with the averments added by adjustment. I have reached the view that it is not open to the petitioner (at least within the confines of a petition for recall of sequestration under the Bankruptcy (Scotland) Act 1985) to seek the additional remedies which she now seeks. I have reached this view having regard to the following factors:-
(1) Having regard to the provisions of sections 16(4) and 17(1) of the 1985 Act, the petitioner's attempt to recall the sequestration awarded in January 1989 is...
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