Ewen Alexander V. Skene Investments (aberdeen) Limited And Others
| Jurisdiction | Scotland |
| Judge | Lord Uist |
| Neutral Citation | [2011] CSOH 144 |
| Date | 01 September 2011 |
| Docket Number | A792/08 |
| Court | Court of Session |
| Published date | 01 September 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 144 | |
| A792/08 | OPINION OF LORD UIST in the cause EWEN ROSS ALEXANDER as Trustee on the sequestrated estates of DAVID GEORGE POCOCK Pursuer; against SKENE INVESTMENTS (ABERDEEN) LTD AND OTHERS Defender: ________________ |
Pursuer: A M Clark QC, Barne; Ledingham Chalmers LLP
Fourth Defender: Primrose QC, A N McKenzie; Balfour + Manson LLP
Seventh Defenders: Lindsay; DLA Piper LLP
1 September 2011
[1] In this action, which called before me on the procedure roll for debate on certain of the preliminary pleas of the relevant parties, the pursuer seeks eight declarators and four decrees of reduction. He seeks those remedies as a result of a series of conveyancing transactions flowing from an alleged fraud on the part of the bankrupt on whose estates he has been appointed permanent trustee. The property in question ("the property") consists of the semi-basement flat and the ground floor flat at 5 Queen's Gardens, Aberdeen. The basic sequence of events, as averred by the pursuer, is briefly as follows.
[2] By missives dated 6 and 7 July 2000 Messrs Jamieson and Cradock on behalf of Mr Pocock offered to buy and Messrs Ledingham Chalmers on behalf of Skene Investments (Aberdeen) Limited (the first defenders) agreed to sell the property to Mr Pocock for £207, 125. A disposition (to which a plan of the subjects was annexed) conveying the subjects was executed by two directors of Skene and delivered to Jamieson and Cradock on settlement of the transaction. Inspection of the books of Jamieson and Cradock by accountants acting on behalf of the Law Society revealed various irregularities and also breaches of the Solicitors (Scotland) Accounts Rules 1997. In August 2002 the Law Society petitioned for the appointment of a judicial factor on the estates of Russell Taylor trading as Messrs Jamieson and Cradock and Ms Morna Grandison was appointed interim judicial factor on 9 August 2002, with her appointment being confirmed on 11 September 2002.
[3] The pursuer was appointed permanent trustee on the estates of Mr Pocock in December 2003. He thereafter discovered from the records available to him that in a number of transactions Mr Pocock had acquired a heritable property with the assistance of Jamieson and Cradock as his solicitors and the relevant disposition in his favour had not been registered. On checking the position with the Keeper of the Registers of Scotland ("the Keeper"), he ascertained that (i) the disposition and plan of the property had not been registered; and (ii) that a second disposition, which purported to be a disposition of the property executed by Skene in favour of Howemoss Properties Limited (the second defenders), had been lodged with the Keeper. I shall refer to the disposition in favour of Mr Pocock as the first disposition and to the disposition in favour of Howemoss as the second disposition. He also ascertained that further transactions had taken place in reliance on the validity of the second disposition. Howemoss executed four standard securities over the property in favour of Woolwich Limited (the third defenders). Howemoss also disponed the semi-basement flat to Sinclair Brebner (the fourth defender) on 17 December 2002 and Mr Brebner granted a standard security over that flat in favour of the Nationwide Building Society (the sixth defenders) on 29 November 2002. Howemoss also disponed the ground floor flat to Colin Torr (the fifth defender) on 21 November 2002. Mr Torr granted a standard security over that flat in favour of Abbey National plc (the seventh defenders) on 18 February 2008. The deeds relating to these additional transactions have been lodged with the Keeper for registration, but he is awaiting clarification of the status of the first disposition before he makes any decision about the status of the second disposition and the other deeds flowing from it. The dispositions by Howemoss in favour of Mr Brebner and Mr Torr were signed by Mr Pocock as a director of Howemoss.
[4] The trustee avers that Skene did not execute the disposition in favour of Howemoss. He believes and avers that it consists of an unauthorised alteration of the first disposition by Jamieson and Cradock, the name of the purchaser and the purchase price having been changed without the proper authority of Skene as sellers and that, as such, it is a nullity. He further believes and avers that the first disposition was destroyed or lost in the process of its unauthorised alteration and conversion into the second disposition. The second disposition being null and void, Howemoss had and have no right in the property over which they would be able to grant a standard security. The trustee therefore seeks reduction of the second disposition and of the four standard securities granted by Howemoss in favour of Woolwich (conclusions 3 and 6) as well as declarator of the tenor of the first disposition (the principal of which cannot be found and a copy of which was found in the file of the solicitors for Skene relating to the sale of the property), declarator that the copy plan annexed to the copy of the first disposition is an accurate copy of the principal plan that was annexed to the first disposition, declarator that Skene did not execute the second disposition and declarator that the second disposition and the standard securities granted over the property by Howemoss were granted a non domino (conclusions 1, 2, 3 and 5 respectively). Further, on the basis that Howemoss had no right to dispone the property to third parties, he seeks declarators that the dispositions by Howemoss to Mr Brebner and to Mr Torr and the standard security granted by Mr Brebner in favour of the Nationwide Building Society were granted a non domino (conclusions 7, 8 and 9), together with reduction of the standard security (conclusion 10). He also seeks declarator that Mr Torr's standard security in favour of Abbey National was granted a non domino and reduction of that standard security (conclusions 11 and 12).
[5] The trustee avers that he does not know the purpose of the alteration of the first disposition but he believes that it might have been to avoid payment of stamp duty by Mr Pocock on the original purchase of the property by him from Skene. He has ascertained that similar alterations were made to dispositions of four other properties in Aberdeen purchased by Mr Pocock with the assistance of Jamieson and Cradock. He believes that in each case the original disposition was destroyed in the process of creating the forged replacement.
[6] Several points were argued in support of the preliminary pleas for Mr Brebner and Abbey National, and I propose to deal with each of these in turn.
Whether there are sufficient averments for a case of proving the tenor, in particular for proving the casus amissionis
Submission for Mr Brebner and Abbey National
[7] The submission for Mr Brebner, which was adopted for Abbey National, was that it was incumbent on the trustee to aver and prove not only that the first disposition existed, but that it was lost or destroyed in some way that did not affect its validity or imply extinction of the right of which it was the evident. The law was set out with admirable clarity in Walker and Walker, The Law of Evidence in Scotland (3rd Ed, 2009) at p 377, para 20.4.2 as follows:
"To obtain decree the pursuer must aver and prove (1) the execution of the document, (2) its tenor or terms, and (3) the casus amissionis (the circumstances of the loss). But these three matters may not be wholly independent. For example, if it is proved that the document was destroyed by someone with an adverse interest, who had no right to destroy it (the casus amissionis), the burden of proving its execution and tenor may be reduced, and strong evidence that a deed of the nature alleged was executed may lead the court to accept slight evidence of its tenor. Clear proof of authenticity and tenor reduces the burden of proving the casus amissionis, and vice versa. It is therefore unwise to isolate the evidence on one matter in a previous decision and assume that the same result will follow in another cause where the evidence on that matter is similar. The evidence on the other matters may be different."
[8] In this case the trustee could not on any view establish that the first disposition had been lost or destroyed in a situation not intended to affect its validity. He averred (in condescendence 6 at p 26D) that the purpose of the alteration of the first disposition was not known although it was believed that it may have been to avoid payment of stamp duty by Mr Pocock on the original purchase of the property from Skene. The circumstances were not innocent as avoidance of stamp duty amounted to fraud. Mr Pocock intended to destroy, or be involved in the operation, to destroy the first disposition so that it was no longer valid: he wanted the world to believe that the disposition was not from Skene to him personally, but instead to Howemoss. The situation here was very far from that where a deed was lost or destroyed in circumstances not intended to affect its validity: it was analogous to a testator revoking his will by tearing it up. In Winchester v Smith (1863) 1M 685 a mutual settlement of spouses in favour of the survivor, and providing for the distribution of the means and estates "of the said longest liver" was found, on the death of the husband, in the repositories of himself and his wife, with the wife's signature and that of the instrumentary witness cancelled. In an action of proving the tenor at the instance of a party having a spes successionis under the provision relative to the estate of the survivor the widow deponed that she had cancelled the signatures in a fit of passion without her husband's knowledge. It was held, in conformity with the opinions of the majority of the judges of both Divisions, that it was incumbent upon the pursuer to prove that the...
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