X Against A, B, C And D
| Jurisdiction | Scotland |
| Judge | Sheriff W. Holligan |
| Neutral Citation | [2016] SC EDIN 55 |
| Court | Sheriff Court |
| Date | 01 February 2016 |
| Published date | 22 August 2016 |
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2016] SC EDIN 55
JUDGMENT OF SHERIFF WILLIAM HOLLIGAN
In causa
X
Pursuer:
Against
A, B, C and D
Act: Speir, Advocate, instructed by MHD Law
Alt: Stewart, Advocate, instructed by McNabs
EDINBURGH, 1 February 2016
The sheriff, having resumed consideration of the cause, allows the record to be opened up and amended in terms of the pursuer’s Minute of Amendment number 32 of Process and the defenders’ answers (as adjusted) thereto number 33 of Process; thereafter repels the defenders’ second and third pleas in law and the pursuer’s third plea in law; quoad ultra allows parties a proof of their respective averments; finds the pursuer liable in expenses to the defenders in relation to the proof before answer and the expenses of and incidental to the foregoing amendment procedure, limited to one half thereof; allows an account thereof to be handed in and remits the same to the auditor to tax and report; assigns 18 February 2016 at 10 am, Sheriff Court, 27 Chambers Street, Edinburgh as a diet to determine further procedure.
Note
[1] By interlocutor dated 12 November 2015 I assigned a hearing to deal with further procedure arising out of my judgement issued therewith (“the November judgement”). Put shortly, I gave leave to the pursuer to lodge a minute of amendment. A minute of amendment (number 32 of process) was lodged, as were answers, further adjusted, which are number 33 of process. The matter came before me on the pursuer’s motion to allow the record to be opened up and amended in terms of the minute of amendment and answers. That motion was opposed. The background to this matter is set out in the November judgement and I do not propose to repeat what I said there. For present purposes it is sufficient for me to say that the action is brought pursuant to section 29 of the Family Law (Scotland) Act 2006 (“the 2006 Act”). The initial writ sought decree against all four defenders cognitionis causa tantum. In the debate before me it is accepted that, at the commencement of proceedings, the pursuer’s agents were aware that executors dative had been appointed to administer the estate of the deceased. That information had not been communicated to the drafter of the writ who proceeded upon the erroneous belief that no executors dative had been appointed. As I narrated in my November judgment the pursuer sought and was granted leave to amend the craves of the initial writ by interlocutor dated 15 July 2015. That amendment changed the craves of the initial writ to remove any reference to a decree cognitionis causa tantum. The instance remained, and remains, unchanged. The pursuer’s present minute of amendment is very brief and seeks to amend the instance of the initial writ quoad the first and second defenders (who are the remaining defenders) so as to design them as executors dative. The defenders’ answers are extensive and contain averments dealing with the merits of the action.
Submission for the Defenders
[2] Mr Stewart’s primary submission is that I should refuse the pursuer leave to amend. In short, the court ought not to substitute one defender for another after the expiry of the statutory time limit within which proceedings may be brought. Secondly, an action cognitionis causa tantum was not a competent procedure to satisfy the terms of the 2006 Act. What the minute of amendment sought to do was to cure a radical incompetence. If leave to amend were granted to the pursuer it should be upon the condition that the pursuer meets the expenses of the first and second defenders. There is an important distinction to be drawn between the first and second defenders as individuals and as executors. Mr Stewart referred to chapter 18 of the Ordinary Cause Rules; Pompa’s Trustees v The Edinburgh Magistrates 1942 SC 119; Rackstraw v Douglas 1919 SC 354; Gray Aitken Partnership Limited v Link Housing Association Limited 2007 SC 294. Rule 18.2(2)(b) sets out certain specific areas in which amendment may be permitted. Self-evidently, if the pursuer were to raise proceedings today the action would be time barred. The present minute of amendment comes outwith the six month time limit. In Pompa’s Trustees an action had been raised against The City of Edinburgh Council within the requisite time period but had not, as the statute required, been directed against the particular office holder of the council. The minute of amendment sought to cure that defect. The court allowed the amendment because the correct procedure had been followed and all the amendment did was to substitute the proper representative of the correct defenders. In the present case the executor is not a “representative” of anyone. In Pompa’s Trustees the Town Clerk represented the City of Edinburgh Council. It was the Council which had the underlying statutory obligation. In the course of his opinion in Pompa’s Trustees, the Lord Justice Clerk said, at page 125, that the court will not in general allow a pursuer by amendment to substitute the right defender for the wrong defender or to cure a radical incompetency in his action. Those dicta apply in the present case. In particular, the pursuer is seeking to substitute one defender for another. Rackstraw was an example of substitution of a party. Although the pursuer in that case was the same individual, during the course of proceedings he discovered that his right to bring the proceedings (which related to an entail) might have been open to challenge. He accordingly took an assignation of the rights of an heir of entail. By doing so he was adding to the instance another person who was entirely separate and distinct from himself as individual. However, there was no time bar issue in that case. Rackstraw also has a number of important observations in relation to expenses (see in particular the dicta of Lord Salvesen).
[3] Mr Stewart then turned to the question of a decree cognitionis causa tantum. Mr Stewart referred to Stair, Institutions of the Law of Scotland (More’s Edition) volume 2, chapter IV, Title XIX; McLaren, Court of Session Practice at pages 805-806; Walker, Civil Remedies pages 302-303; Kerr v Mangan 2015 SC 17; Simpson v Downie 2012 Fam LR 121 and Royal Insurance (UK) Limited v Amec Construction Scotland Limited 2008 SC 201. A decree cognitionis causa tantum is declaratory. It is not a decree for payment. Such a decree declares that a debt is due by the deceased. Section 29 is not a procedure to recover a debt incurred by a deceased. As was said in Kerr v Mangan and Simpson v Downie the 2006 Act creates a novel jurisdiction. In Kerr, Lady Smith rejected the proposition that a claim pursuant to section 29 relates to a debt owed by a deceased. Section 29 confers the right to bring an application. The matter is governed by the law of succession. Simpson v Downie makes clear that the cohabitant has no independent right. Mr Stewart accepted that I had decided in the November judgment that the failure to convene the executors was not an absolute bar to the making of a claim pursuant to section 29. Whatever may be the correct alternative procedure, cognitionis causa tantum is not appropriate. Accordingly, what the minute of amendment seeks to do is to cure the procedural defect outwith the statutory time limit. It is an attempt to cure a radical incompetence. There never was an inter vivos debt due by the deceased. Cognitionis causa tantum is used to declare that an obligation existed. In the Royal Insurance case there was always an underlying right to sue, vested in the litigant. Here, the defenders, as individuals, did not have the underlying obligation, only the executors did. That much is made clear in the rules of court and Kerr v Mangan.
[4] In relation to the exercise of its discretion to allow amendment, the court should consider the stage of proceedings; whether the amendment could have been brought earlier; whether there has been unreasonable delay. In the present case, it is accepted that the pursuer’s agents were, collectively at least, aware that executors had been appointed. Accordingly, if leave to amend was refused the pursuer would not be without a remedy. That is a factor for the court to consider.
[5] Mr Stewart’s secondary position was that if leave to amend was allowed then the first and second defenders, as individuals, should have an award of expenses in their favour. The very fact of the present and recent procedure amounts to an acknowledgement on the part of the pursuer that the defenders should not have been put to the expense in defending this matter as individuals. The authorities all support the proposition that if leave to amend is granted, payment of the defenders’expenses should be a condition of the granting of that leave. Reference was again made to Pompa’s Trustees; Rackstraw and Morrison v Morrison’s Executrix 1912 SC 892. If the first and second defenders were not awarded their expenses they would have no other way of ensuring their recovery. They did not have an automatic right to be indemnified by the estate. Furthermore, expenses should be awarded upon an agent and client basis, client paying. Reference was made to McKie v Scottish Ministers 2006 SC 528. At paragraph [3] of his opinion, Lord Hodge summarised the factors to be considered by the court in deciding whether to make such an award. Mr Stewart relied upon a third of these propositions namely that one of the parties has conducted on litigation “incompetently or unreasonably”. Mr Stewart asked what reason was there to sue the first and second defenders as individuals? The answer is none. The minute of amendment is effectively an acknowledgement on the part of the pursuer that the defenders’ position is correct. The court could consider the question of expenses relating to the debate as a separate matter. That was the case in which the defenders submitted that there needs to be a minute of amendment which there now is. In...
To continue reading
Request your trial