Pet: For Recall Of Sequestration Agnes Watt Dickie Or Ritchie V. Charles Dickie
| Jurisdiction | Scotland |
| Judge | Lord Bonomy |
| Date | 07 April 1999 |
| Docket Number | P145/5 |
| Court | Court of Session |
| Published date | 07 April 1999 |
| P145/5/97
| OPINION OF LORD BONOMY in Petition and Answers for Recall of Sequestration of MRS AGNES WATT DICKIE or RITCHIE, Petitioner; against CHARLES DICKIE, Respondent: ________________
|
Petitioner: Holroyd; Anderson Strathern, W.S.
Respondent: MacIver; Bennett & Robertson
7 April 1999
Factual Background
The petitioner and respondent are sister and brother. Their brother James Dickie died intestate on 13 May 1990. The petitioner was appointed executrix-dative on his estate on 7 August 1990. She was confirmed as executrix on 25 September 1990. On 28 October 1994 the petitioner, as executrix-dative, received a cheque in her favour for £13,392.46 from the solicitors acting in the executry of her late brother. That cheque represented the sum including accrued interest due from the estate to the respondent as calculated by the solicitors. The petitioner held the money in a separate bank account and did not make payment to the respondent. The respondent raised an action of count reckoning and payment in the Sheriff Court in Inverness, which action was later transferred to the Sheriff Court in Edinburgh. On 8 November 1996 counsel representing the petitioner consented to decree passing against her for payment of £13,392.46 with interest at 8% per annum from 25 January 1992 until payment and expenses as taxed. Decree for taxed expenses of £3,498.89 was not pronounced until 5 March 1997. The initial decree was extracted on 25 November 1996 and a charge was served on 30 December 1996. On expiry of the days of charge the respondent petitioned the sheriff at Inverness for sequestration of the petitioner and a warrant for service was granted on that petition on 27 January 1997. On 21 February 1997, when the application for sequestration called before the sheriff, the petitioner was neither present nor represented, and the sheriff pronounced decree sequestrating "the estate now belonging or which shall belong to the debtor Agnes Watt Dickie or Ritchie, Advocate, Coille Ghlas, Lower Dell, Nethybridge, Inverness-shire". The Accountant in Bankruptcy was appointed interim trustee. On 17 April 1997 Alan Andrew Nelson was confirmed as permanent trustee on the said sequestrated estate.
The Petitioner's Case
The petitioner lodged the present petition seeking recall of the award of sequestration at the Petition Department on 1 May 1997. The petition is presented under sections 16 and 17 of the Bankruptcy (Scotland) Act 1985 and invokes the court's discretionary power to recall the sequestration if the court considers that appropriate in all the circumstances of the case. The principal ground on which recall of the sequestration is sought is that decree sequestrating her estate ought not to have been pronounced at all, since it proceeded upon a decree against the petitioner as executrix-dative of her late brother, and any diligence ought to have been confined to the estate of her late brother as held by her at the time the decree pronounced was enforced. She maintains accordingly that she was sequestrated on an erroneous basis and that the sequestration ought to be recalled. Alternatively, she maintains that, taking account of all the surrounding circumstances, it is appropriate to recall the sequestration.
The Respondent's Case
The respondent initially opposed the prayer of the petition in principle. However the sequestration resulted in the cautioner under the petitioner's bond of caution as executrix-dative paying all sums due to the respondent. I was advised that payment was made in July 1997. By Minute of Amendment lodged on 8 June 1998 the respondent withdrew his opposition to recall of the sequestration. However, he maintains his opposition to paragraphs (v) and (vi) of the prayer which seek findings against him in respect of the expenses of this petition and the expenses of the sequestration, including those of the interim and permanent trustees. He also maintains his contention that this petition is out of time and should be dismissed on that basis.
When is a Petition "Presented"
The provision of the Bankruptcy (Scotland) Act 1985 governing the timing of such a petition is section 16(4). Where the petition is presented on any of the grounds mentioned in paragraphs (a) - (c) of section 17(1) of that Act, there is no time limit. Paragraphs (a) - (c) contain specific grounds for recall. None is invoked at present in this petition. Where, however, the ground advanced for recall falls within the general discretion of the court as set out in the initial part of section 17(1), as is the case here, there is a time limit requiring the petition to be "presented" to the Court of Session within ten weeks after the date of the award of sequestration. The first issue falling for determination is whether this petition was presented within that time limit. It is agreed that the petition was handed into the Petition Department on the last available day of the ten week period. It is equally agreed that all procedure following thereon, including the interlocutor of the court granting warrant for service, occurred outwith the ten week period. The petitioner contends that a petition is "presented to the Court of Session" when it is handed in or lodged at the appropriate office of the court. The respondent, on the other hand, maintains that a petition is presented to the court when it is placed before a judge for consideration. The respondent's authority was the opinion of the High Court of Justiciary in Tin Fan Lau, Petitioner 1986 S.L.T. 535, which in turn relied on Hume on Crimes, ii 95. The issue in Tin Fan Lau was the interpretation of section 28(2) of the Criminal Procedure (Scotland) Act 1975 dealing with bail applications to a sheriff, which section provided as follows:
"Such application shall be disposed of within 24 hours after its presentation to the sheriff, failing which the accused shall be forthwith liberated."
The court stated their opinion at p.535l as follows:
"Presentation or presentment can only occur when the application has been transmitted to the sheriff so that the sheriff may consider and judge of the application."
The court relied heavily on the passage in Hume dealing with the presentation of a bail petition to a magistrate in circumstances where the office of the clerk might be situated so far from the location of the magistrate that 24 hours might pass before the magistrate could know anything of the application. Hume was explaining the terms of the Act of 1701(c.6) which are very similar to those of section 28(2) of the Act of 1975. The matter was the subject of consideration by the High Court as a Court of Criminal Appeal in H M Advocate v Keegan 1981 S.L.T. (Notes) 35 where Lord Cameron observed that Hume, Alison & Burnett all considered an application for bail was presented only when it was placed before the magistrate or sheriff and was not presented when it was lodged with the clerk. So in relation to bail an application has, since at least the late 18th Century, been regarded as presented only when placed before the appropriate judge.
The petitioner's counsel, on the other hand, drew my attention to two cases in which "presented" has been given a different meaning in civil proceedings. I am persuaded by these authorities that "present" has a different meaning in relation to petition procedure in the Court of Session. In Bain v Allan (1884) 11 R. 650 it was held that a reclaiming note was "presented" when it was lodged with the clerk. That was the interpretation placed upon section 28 of the Court of Session Act 1868 (c.100) which provided that an interlocutor appointing a proof
"shall be final unless within six days from its date the parties, or either of them, shall present a reclaiming note against it to one of the Divisions of the Court."
In 1884 a reclaiming motion required to be "boxed" before it could appear in the Single Bills of a Division. Objection was taken to the reclaiming motion in that case because it had not been boxed within the statutory time limit. In dealing with that objection the Lord President (Inglis) said:
"Although the word 'presented' may in the ordinary case be held to have the meaning of and to be equivalent to both 'lodging in process' and 'boxing to the Court', yet, as the word is used here, I have great doubts whether it was intended to comprehend both acts. The words used are 'shall present a reclaiming note to one of the Divisions of the Court, by whom the case shall be heard summarily'. I do not therefore see how the statute can be held to mean more than that something is to be done which shall have the effect of putting the case in the hands of one Division of the Court. But that is accomplished by the mere act of lodging the paper with the clerk to the process. The case is thus brought to the Division. The principal note is necessarily what is lodged; it is signed by counsel on behalf of the parties. I am not able to say that the lodging of that note, signed by counsel, is not a sufficient compliance with the requirements of the section to which I have referred."
Lords Mure and Shand expressed similar opinions. In Burgh of Millport, Petitioners 1974 S.L.T. (Notes) 23 Lord Keith in the Outer House expressed the view that presentation was achieved by lodging a petition for sequestration at the office of the clerk of court. He expressed the view that that was consistent with common-sense. In Secretary of State for Trade and Industry v Normand 1994 S.L.T. 1249 Lord Sutherland reached a similar view in interpreting the Company Directors Disqualification Act 1986 which by section 7(2) requires any application for a disqualification order to be made within two years of the date upon which the company of which the person is or has been a director became insolvent. In that case a petition was presented within the two year period but the interlocutor granting a first order for service was not pronounced until the two year period had expired. In...
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