Scottish Court of Session Decisions

Lord Skerrington—“The question is whether two claimants resident in Russia, whose claims have been rejected by the liquidators, ought to be ordered to sist a mandatary. Counsel for the liquidators maintained that these claimants were substantially in the position of pursuers, and accordingly fell under the general rule applicable to pursuers. Counsel for the claimants, on the other hand, maintained that the rule that a foreign pursuer must in the absence of some special reason sist a mandatary, has no application, and had not in fact been applied to claimants in a liquidation. No decision exactly in point was quoted one way or the other, the nearest being the case of Ford ( 1844, 6 D. 1163), where a claimant in a Scotch sequestration, domiciled in England, was held bound to sist a mandatary. Reference was also made to decisions in actions of multiplepoinding, which show that the Court is ready to treat claimants in such actions with indulgence— Elmslie v. Pauline, 1905, 7 F. 541; Gordon's Trustees v. Forbes, 1904, 6. F. 455.

“A person who merely lodges a claim in a liquidation, sequestration, multiplepoinding, or other process of distribution, does not thereby put himself in the position of a pursuer, or even of a litigant. Assuming, however, that his claim has been rejected or opposed, and that the claimant desires to obtain the decision of the Court upon it, he becomes a litigant, and he is either a pursuer or a defender according to circumstances. Thus a claimant who founds upon a probative writing which his opponent impugns on extrinsic ground is, I think, in the position of a defender. On the other hand, claimants who, as in the present case, are attempting to constitute an illiquid claim, are in the position of pursuers. Although pursuers, however, they are not in precisely the same position as ordinary pursuers, who, as a rule, are entitled to choose their own time and their own tribunal for making good their claim. They may be described as involuntary pursuers, and this consideration, in my opinion, entitles the Court to exercise a wide discretion in the way of dispensing with the necessity for a mandatary. In the present case, however, no special reasons were stated which would make it inequitable or hard to require the claimants to sist a mandatary, whereas the hardship upon the liquidator and creditors is obvious if they have to sue in Russia for recovery of their expenses. Looking to the nature of the claims and to the whole circumstances, I am of opinion that the liquidator's motion should be granted in each of the two cases.”