John Russell Against Andrew Russell And Others
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2017] CSOH 137 |
| Date | 24 October 2017 |
| Docket Number | A86/14 |
| Court | Court of Session |
| Published date | 24 October 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 137
A86/14
OPINION OF LORD BOYD OF DUNCANSBY
In the cause
JOHN RUSSELL
Pursuer
against
ANDREW RUSSELL AND OTHERS
Defenders
Pursuer: Heaney; Allan McDougall
Second Defender: Party
For William Renfrew: Gardiner; Renfrew & Co, Solicitors, Glasgow
24 October 2017
[1] The pursuer enrolled the following motion:
“On behalf of the Pursuer (1) to find the third defender (Vikki Russell) liable to the
pursuer in the expenses of this action as the same shall be taxed by the Auditor of
Court; (2) to find the second defender (Paul Casey Russell, who did not enter
appearance in the action) liable to the pursuer in the expenses of the action jointly
and severally with the third defender as the same shall be taxed by the Auditor of
Court; (3) to find William Renfrew, Solicitor of Wm Renfrew & Co, Ltd, Solicitors,
Glasgow (the principal solicitor acting for the third defender in this action and the
nominated solicitor on her Legal Aid Certificate) liable jointly and severally with the
second and third defenders to the pursuer in the expenses of this action as the same
shall be taxed by the Auditor of Court; and (4) to find that the expenses be taxed
against the second and third defenders and William Renfrew on an agent and client
(client-paying) scale.”
2
Background
[2] This is an action for reduction of a disposition executed by John Russell and
Elizabeth Russell (the deceased) disponing a flat at 263 Cumbernauld Road, Denniston,
Glasgow to themselves in liferent and Vikki Russell (the third defender) in fee. It bears to be
signed by both of them on 28 September 2004.
[3] The pursuer is a son of the deceased and executor nominate under his father’s will.
There are four defenders including the Keeper of the Registers of Scotland who has not
entered appearance. The first and second defenders are also sons of the deceased and
brothers of the pursuer. The third defender is the granddaughter of the deceased and
daughter of the second defender. Mr William Renfrew of Renfrew & Co, Solicitors, Glasgow
acted for the third defender in this action.
[4] The pursuer sought reduction of the disposition on the grounds that when it was
executed both of the deceased lacked the capacity to do so. Neither the first or second
defenders entered appearance or lodged defences. The third defender lodged defences. In
due course a proof before answer was allowed. On the eve of the proof the third defender
withdrew her defences. The diet of proof was discharged and decree of reduction was
granted.
[5] Both the pursuer and the third defender are legally aided. I was told that the only
asset in the estate is the property at 263 Cumbernauld Road which has a value of £45,000.
Under the legal aid rules SLAB will look for payment of legal fees from the recovered
property. There are three beneficiaries under the will namely the pursuer and the first and
second defenders. Mr Heaney, counsel for the pursuer, informed me that the pursuer had a
duty to maximise the estate for the beneficiaries and that was why this motion had been
enrolled.
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