Russell v Russell
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Ducansby |
| Judgment Date | 24 October 2017 |
| Date | 24 October 2017 |
| Court | Court of Session (Outer House) |
| Docket Number | No 7 |
[2017] CSOH 137
Outer House
Lord Boyd of Ducansby
Blyth v Watson 1987 SLT 616; 1987 SCL 459
Bremner v Bremner 1998 SLT 844; 1998 SCLR 561
McKie v Scottish Ministers [2006] CSOH 54; 2006 SC 528; 2006 SLT 668
McMillan v Mackinlay 1926 SC 673; 1926 SLT 436
Reid v Edinburgh Acoustics Ltd (No 2) 1995 SLT 982; 1995 SCL 791
Ridehalgh v Horsefield [1994] Ch 205; [1994] 3 WLR 462; [1994] 3 All ER 848; [1994] BCC 390; [1997] Costs LR 268; [1994] 2 FLR 194; [1955–95] PNLR 636; [1994] FamLaw 560; [1994] EG 15 (CS)
Stewart v Stewart 1984 SLT (Sh Ct) 58
Walker v Walker (1903) 5 F 320; 10 SLT 551
Macfadyen, DJD, Court of Session Practice (Bloomsbury Professional, Haywards Heath, 2005), paras 502, 514
Macphail, ID, Sheriff Court Practice (3rd ed, W Green, Edinburgh, 2006), paras 4.112, 4.113
Scottish Legal Aid Board, Scottish Legal Aid Handbook (6th ed, Scottish Legal Aid Board, Edinburgh, 2001), paras 8.2, 8.4, 8.5
Expenses — Withdrawal of defences on eve of proof — Whether conduct of party unreasonable or reprehensible — Whether there had been gross mismanagement in the conduct of the litigation by a party's solicitor — Whether expenses should be awarded against party's solicitor — Whether expenses should be on an agent client, client paying basis
John Russell raised proceedings in the Court of Session for reduction of a disposition executed by his late parents disponing a flat to themselves in liferent and Vikki Russell in fee. Andrew Russell, Paul Casey Russell and Vikki Russell were called as defenders. Only Vikki Russell entered appearance and lodged defences, but she withdrew her defences on the eve of the proof before answer. On 31 May 2016, at the proof before answer, the court allowed the defences to be withdrawn, pronounced decree of reduction and made an order under sec 9 of the Land Registration (Scotland) Act 1979 (cap 33). The pursuer thereafter enrolled a motion for the expenses of the action against Vikki Russell, Paul Casey Russell and William Renfrew (solicitor for Vikki Russell), jointly and severally, and all to be taxed on an agent and client, client paying scale. The motion came before the Lord Ordinary (Boyd of Duncansby), for a hearing on 11 July 2017.
The pursuer sought reduction of a disposition granted by his late parents disponing a property in Glasgow to themselves in liferent and their granddaughter (the pursuer's niece) in fee. The disposition was witnessed by the pursuer's brother (the fiar's father). It bore to be signed on 28 September 2004 but the fiar and her witnesses maintained that it was executed on 11 October 2004. The pursuer sought reduction of the disposition on the grounds that when it was executed both parents were incapax. A proof before answer was fixed for 31 May 2016.
By letter dated 24 March 2014 the pursuer's solicitors requested from his fiar's solicitor sight of the conveyancing file relating to the execution of the disposition. In May 2016, the fiar's solicitor advised the pursuer's solicitors that he assumed the file had been destroyed. The fiar's solicitor took precognitions from family members and from the solicitor who had acted for the parents in the conveyance. None of the precognosced family members had concerns about the parents’ capacity and all spoke to the disposition being executed on 11 October 2004. The parents’ solicitor's memory was hazy but he stated that the date of execution was 11 October 2004.
On 30 June 2015 the pursuer's solicitors sent the parents’ medical records to the fiar's solicitor. The medical records for his late father showed that on 28 September 2004 he was in hospital following falls at home and was very confused. There was no record of him leaving hospital that day. The medical records for his late mother showed that she was suffering from dementia. The pursuer's solicitors pressed the fiar's solicitor to acknowledge the strength of the case against his client based on these records.
On the advice of counsel, the fiar's solicitor instructed an expert to report on her grandparents’ capacity. The expert concluded in reports dated 10 March 2016 that it was not possible to say with certainty that either of them was incapax on the basis of the information before him. These reports were sent to the pursuer's solicitors who responded on 7 April 2016 indicating that it appeared the expert did not have the full medical records available to him. After the full records were sent to the expert, the fiar's solicitor met the expert on 18 May 2016 who confirmed that his position remained the same. A note of the meeting was prepared and sent to counsel on 24 May 2016 who advised the same day that it was likely the pursuer would be successful and recommended that settlement discussions take place. On the eve of the proof the fiar withdrew her defences. The diet of proof was discharged and decree of reduction was granted.
The pursuer thereafter enrolled a motion for the expenses of the action against each of the fiar, the fiar's father, and the fiar's solicitor jointly and severally on the agent and client, client paying scale. In moving the motion against the fiar's solicitor, the pursuer submitted that: no responsible solicitor would have allowed their client to get to the door of the court before advising that there was no tenable defence; the medical records cried out for the attention of a responsible solicitor to investigate the parents’ capacity to sign the disposition; and if the opinion from the expert had been obtained timeously the defences could have been withdrawn well in advance of the proof. In moving for expenses against the fiar's father, the pursuer submitted that he had acted as dominus litus with respect to his daughter.
Held that: (1) while there was strong prima facie case that both the pursuer's parents did not have the requisite capacity, it was not conclusive and the defence was stateable (paras 41, 44); (2) while the conduct of the case by the fiar's solicitor was less than adequate — by failing to respond timeously to the request for the conveyancing file, by failing to deal with obvious issues arising from the medical records and the discrepancy in the date of execution, and by conducting the litigation at a leisurely pace — none of these criticisms were sufficient in themselves to establish fault on the part of that solicitor (paras 46–50); (3) the solicitor was at fault by failing to send the expert all of the medical records, had the expert been properly instructed his reports would have contained all the information to enable counsel to advise on the prospects of success at an earlier time and for the defences to be withdrawn by no later than 31 March 2016 (paras 50, 55); (4) the finding of expenses against the solicitor was in itself a mark of the court's disapproval and the further sanction of an award on an agent and client basis was unjustified (paras 55, 56); (5) the fiar was an adult and presumably well able to reach her own decisions and instruct a solicitor accordingly, on no view could it be said that her father was a dominus litus (paras 58, 59); and the fiar's solicitor found liable in the expenses of process from 1 April 2016 on a party and party basis, and motion for expenses against the fiar's father refused.
McKie v Scottish Ministers 2006 SC 528 considered.
At advising, on 24 October 2017—
[1] Lord Boyd of Duncansby— 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] 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, Dennistoun, 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 nor 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 the Scottish Legal Aid Board (‘SLAB’) will look for payment of legal fees from the recovered...
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