Mrs. Joan Pentland-clark V. Patrick Collinge Gravatt Wilson And Others
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Mackay of Drumadoon,Lord Wheatley |
| Neutral Citation | [2013] CSIH 48 |
| Date | 04 June 2013 |
| Docket Number | A205/04 |
| Court | Court of Session |
| Published date | 04 June 2013 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Mackay of Drumadoon Lady Dorrian Lord Wheatley | [2013] CSIH 48 A205/04 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in the cause MRS JOAN PENTLAND-CLARK Pursuer and Reclaimer; against PATRICK COLLINGE GRAVATT WILSON and others Defenders and Respondents: _______________ |
First, second and third defenders and respondents: Clark QC, Barne; Balfour & Manson LLP
4 June 2013
Introduction
[1] This is a reclaiming motion at the instance of the pursuer and reclaimer in an action of count reckoning, payment and reduction which she raised in the Court of Session during 2004 (A205/04). The action is one of a number of actions in which the pursuer has been a party since the death of her former husband, James Clark, who died on 5 December 1985 ("the deceased"). These actions have been raised on account of the non-payment out of the deceased's estate of monthly maintenance payments to which the pursuer became entitled in 1977, when she divorced her former husband. The pursuer maintains that the arrears of monthly payments now exceed £150,000.
[2] It is convenient to refer to this action as the "private action". The private action, in which the pursuer sues in her own right, has been pursued against a number of defenders, including Patrick Wilson, Charles Pagan WS and Susan Venters, the first, second and third defenders. The first and second defenders were executors administrating the estate of the deceased until they were removed from office by an interlocutor pronounced in the Court of Session on 27 May 1999. At the same time a judicial factor was appointed to the deceased's estate. The first defender had been assumed as an executor by Deed of Assumption dated 13 December 1985 and the second defender by Deed of Assumption dated 13 and 21 June 1991. The third defender was a partner in the former firm of Messrs. J & G Wilson, Solicitors. The late John Simpson Wilson ("John Wilson"), a former partner in the same firm of solicitors, had been an executor on the estate of the deceased from 1985 until his own death on 27 May 1991.
[3] The background to and history of the dispute between the pursuer and the executors of the deceased's estate are set out in detail in a number of opinions relating to the private action, including Opinions of the Court delivered by Lady Paton on 11 June 2009 ([2009] CSIH 48) and 16 February 2010. The private action was dismissed insofar as directed against all six defenders on 11 June 2009 and on 16 February 2010 the pursuer was found liable to all six of the defenders in the expenses of this action, insofar as those expenses had not already been dealt with.
The awards of expenses in favour of the first, second and third defenders remain unpaid. Those defenders are the respondents to this reclaiming motion.
[4] In another action arising out of the non-payment of the maintenance payments due to the pursuer (A1767/03), the pursuer, as judicial factor on the executry estate of the deceased, now sues the former executors. That action was raised by the judicial factor who was appointed in 1999, following a petition at the instance of the pursuer seeking the sequestration of the executry estate of the deceased. The original judicial factor died in 2006 and on 13 March 2007 the pursuer was appointed by the court to replace him as judicial factor. Since then the pursuer has appeared in that action as a party litigant. That action is conveniently referred to as the "judicial factor's action" (A1767/03).
[5] The history of the judicial factor's action is set out in a number of opinions issued since the action was raised including the Opinion of Morag Wise, QC, sitting as a temporary judge, dated 19 November 2009 ([2009] CSOH 153) and the Opinion of the Court delivered by Lord Carloway dated 27 March 2012 ([2012] CSIH 29). In the judicial factor's action a proof has been allowed in respect of certain of the remedies sought by the pursuer. A diet of proof has not yet been fixed. Since the pursuer was appointed judicial factor and, as such, became the pursuer in that action, a number of awards of expenses have been made against her in her capacity as judicial factor.
Hearings before Lord Tyre and Lady Smith in the present action
[6] On 19 March 2012 the pursuer enrolled a motion in the private action in which she sought inter alia an order remitting the private action ob contingentiam upon the judicial factor's action (A1767/03). At a hearing on 21 March 2012 the Lord Ordinary, Lord Tyre, refused the motion seeking to remit the private action as craved. His reasons for refusing the motion were subsequently set out in an opinion dated 12 October 2012 ([2012] CSOH 160). They included that he was not satisfied that there was any contingency between the two actions, the private action (A205/04) and the judicial factor's action (A1767/03). As Lord Tyre noted in his opinion in the private action all the substantial issues had been dealt with by a final judgment. The only live issue that remained related to the amount recoverable in respect of the fees charged by a solicitor advocate, who had been instructed to appear for one of the defenders. Lord Tyre took the view there was no contingency between that issue and those issues which arise and remain outstanding in the judicial factor's action (A1767/03). Lord Tyre expressed concern as to the competency of seeking to review in one action (A1767/03) an award of expenses previously made and not appealed in another action (A205/04). He considered it would not be in the interests of justice to prolong the life of the private action (A205/04) for that purpose. He also took account of the fact that there was no exact identity of parties and that the grounds of actions in the two actions were different, although arising out of the same original circumstances. Lord Tyre also placed considerable weight on the fact that on 16 February 2010 the Inner House in A205/04 had rejected a submission that the determination of the expenses in the private action (A205/04) should await the outcome of the judicial factor's action (A1767/03) (see para [3] of the Opinion of Lady Paton).
[7] On 25 May 2012 the pursuer enrolled a motion in the private action that sought inter alia an order that the private action be sisted on the dependence of the outcome of the application which the pursuer had made to the Supreme Court of the United Kingdom on 8 May 2012 in a Notice of Appeal in the judicial factor's action. By means of that application the pursuer sought that the private action (A205/04) be remitted ob contingentiam and conjoined with the judicial factor's action (A1767/03).
[8] The motion enrolled on 25 May 2012 was opposed on behalf of the first, second, third and fourth defenders. The motion was heard by Lady Smith on 29 May 2012, who considered the written reasons the pursuer had submitted in support of the motion together with the oral submissions of the pursuer and counsel for the defenders. The motion was refused that day. As explained in a written opinion which she subsequently issued, Lady Smith took the view that the pursuer had not demonstrated circumstances which could justify the private action being sisted. In particular Lady Smith was not satisfied that there were any reasonable prospects of the private action being conjoined with the judicial factor's action by the Supreme Court. Lady Smith noted that the outstanding issue between the parties in the private action was not whether or not the first, second and third defenders were entitled to expenses, but what sums were payable by the pursuer in respect of the awards in their favour. Lady Smith indicated that she could not understand how or on what basis the pursuer considered that the entitlement of the defenders to expenses in the private action could be opened up again, were the private action to be conjoined with an appeal to the Supreme Court in the judicial factor's action.
[9] On 5 July 2012 a panel of three Justices of the Supreme Court, Lords Kerr, Dyson and Carnwath, refused the pursuer's application to have waived the requirement of the Supreme Court that two counsel certify that it was reasonable for the pursuer to pursue the appeal she had lodged with the Supreme Court. As a consequence of that decision the pursuer was unable to proceed with the proposed appeal.
Submissions by the pursuer.
[10] In this reclaiming motion the pursuer lodged Grounds of Appeal and a Note of Argument. Ground 1 contended that on 29 May 2012 Lady Smith had erred in the exercise of her discretion in refusing to sist the private action pending the outcome of the pursuer's application to the Supreme Court in the judicial factor's action. In terms of Ground 4 of her application to the Supreme Court the pursuer had sought to have the private action (A205/4) conjoined with the judicial factor's action (A1767/03), together with relief from those orders.
[11] Ground 2 contended that on 21 March 2012 Lord Tyre had erred in refusing to remit the private action (A205/4) ob contingentiam upon the dependence of the judicial factor's action (A1767/03).
[12] Ground 3 contended that because the defenders in the private action were threatening to enforce their awards of expenses against the pursuer, there was a risk that they might seek to remove...
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