Martin & Co (uk) Limited For An Order Under Section 1 Of The Administration Of Justice Act 1972
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young |
| Neutral Citation | [2013] CSOH 25 |
| Court | Court of Session |
| Published date | 12 February 2013 |
| Date | 12 February 2013 |
| Year | 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 25 | |
| OPINION OF LORD DRUMMOND YOUNG in the Petition MARTIN & CO (UK) LIMITED Petitioners; for An order under section 1 of the Administration of Justice Act 1972 ________________ |
Petitioners: Broome; Simpson & Marwick
First Respondent: No appearance
12 February 2013
[1] The petitioners entered into two franchise agreements dated 10 November 2010 and 7 March 2011 with companies with which the first respondent is connected. The first respondent guaranteed the obligations of the franchisee companies under those agreements. During the summer of 2012 the petitioners brought proceedings in the Commercial Court for inter alia an order that the first respondent should make available various financial records relevant to the agreements. Subsequently, on 13 November 2012, the petitioners terminated both agreements pursuant to a contractual power. Immediately thereafter they presented this petition, brought under section 1 of the Administration of Justice (Scotland) Act, in which they ask for orders to recover a range of documents relative to the franchise agreements. On 15 November 2012 and subsequent dates I granted three such orders, each for the appointment of a commissioner to secure the recovery of the relevant documents. Commissions took place thereafter, and a substantial number of documents were recovered. I should record that at the commissions at least one of the potential havers appeared to act in a highly obstructive manner, and proceedings for contempt of court are presently pending.
[2] On 1 February 2013 I granted an unopposed motion by the petitioners for the expenses of process to date on an agent and client, client paying, basis. The petitioners have now enrolled a motion that the court should order payment by the first respondent of the sum of £50,000 by way of expenses ad interim consequent upon the granting of the order pronounced on 1 February. The motion also seeks immediate extract of the order pending agreement or taxation of the account of expenses.
[3] In support of the motion, the petitioners' counsel stated that in the previous process (in the Commercial Court) an award of expenses was pronounced against the first respondent. This had not been met to any extent, and attempts were being made to have a diet of taxation allocated. The petitioners understood that the first respondent was heritable proprietor of a number of properties. Counsel submitted that, because the interlocutors relating to expenses, whether in the present petition or in the commercial action, did not decern for a particular sum, it was not possible to obtain inhibition on the dependence. There was accordingly a material risk that the first respondent might dispose of her interest in one or more of those properties prior to taxation of the account of expenses and the obtaining of an extract decree for a specific sum. In that event recovery of the expenses would be prejudiced. The petitioners further stated that the fees and outlays incurred by them to date in the present petition are estimated to amount to £75,000. They seek an order for immediate payment of two thirds of that sum, to allow some margin of error.
[4] The petitioners are correct that they cannot do diligence on the dependence of...
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