Scottish Court of Session Decisions

The pursuer, who has conducted his own litigation since his legal aid certificate was withdrawn in about May 1997, sought reduction of a Disposition to the defender of the one half pro indiviso share of a property which he and the defender owned at 24 Cathcart Place, Edinburgh. The challenged Disposition (15/13 of process), registered in the General Register of Sasines for the County of Midlothian on 11 April 1986, was on the face of it, subscribed by him on 28 February 1986 before two witnesses. It was admitted by the defender that the witnesses did not see the pursuer sign nor did he acknowledge his signature to them. The pursuer maintained that the signature on the said Deed was not his and that therefore it must have been forged.

When the pursuer raised his action he was represented by solicitors and in receipt of legal aid. Despite the fact that the summons contained a warrant for inhibition and that it concerned the ownership of heritable property there was not recorded on behalf of the pursuer any inhibition or notice of litigiosity. The defender, after the present action was raised, and, I find as fact, well knowing that the title she held was in dispute, nonetheless sold and conveyed the whole property, i.e. her own half share and the disputed half shares, to the minuter Mrs Rehka Begum. Mrs Begum financed her purchase by a loan from the first minuter, now Halifax PLC. It was not disputed that Mrs Begum was an innocent third party purchasing for value and there was no means whereby Halifax PLC could have been aware of the dispute over the defender's title. The defender managed to achieve that situation by instructing different solicitors for the sale of the property from those she instructed for defending the present action. It is in the light of such conduct that the evidence of the defender requires to be regarded. She was an unimpressive witness in any event and I would not have been disposed to rely upon anything she said which was not otherwise established. Her demeanour in the witness box was aggressive, her answering of questions evasive and her account of the relationship of the parties at the time of the signing of the Disposition wholly incredible. Accordingly for her to discharge the onus of providing that the disputed Disposition did in fact represent the wish of the pursuer at the time and was signed by him required other independent and satisfactory evidence to establish those facts on the balance of probabilities.

Equally the pursuer's evidence was inconsistent and at odds with that of the only other witness led in connection with the transaction, Mr Dunnett, the solicitor who acted for both parties at the time of their purchase of the property and at the time of the transfer from the pursuer to the defender. The pursuer stoutly maintained that the signature on the Deed was not his. If he was disbelieved on that matter, that would not of itself suffice to establish that it was in fact his signature. He also stoutly maintained that he had never instructed Mr Dunnett to execute the Disposition at issue. I could no see no reason whatsoever to disbelieve Mr Dunnett's clear evidence on the matter and it follows that, in that regard, I cannot accept the pursuer as credible. The lacuna which is left is that Mr Dunnett had no means of knowing whether the pursuer had changed his mind and revoked his intention as expressed to Mr Dunnett after Mr Dunnett had sent him the Deed. That, of course, was not the position adopted by the pursuer. Had it been the task of the Court might have been more difficult.

The defender and first minuter relied on the evidence of two handwriting experts. Both these gentlemen expressed the view that the signature on the Deed was that of the pursuer beyond a doubt. They produced reports which followed upon the examination of a wide variety of examples admitted to be the pursuer's signature and conducted such detailed examination of the format of the pursuer's signature as they could. There was no evidence led by the pursuer other than his own. An expert's report obtained for him, although not, it would appear, by a solicitor, was produced in process it was not properly spoken to. The defender and minuter's witnesses however were asked to deal with that report and they did so. They pointed out that the report itself was not definite in its terms and proceeded on a very small range of sample signatures as well as upon only a microfiche copy of the Disposition as opposed to the Disposition itself. The two experts who gave evidence had the advantage of seeing the actual Disposition and a far wider range of signatures. They were confident that the characteristics displayed in the sample signatures were replicated in the Disposition and further indicated that the Disposition itself showed no sign of hesitation or any of the other common signs of a forgery such as heavy indentation, hesitancy or tracing. The only matter upon which there was not a clear indication was in relation to the first curl on the commencement of the letter "M". That only appeared on one other sample signature on a Gas Board application which pre-dated the Disposition. There was accordingly a possibility that that feature indicated that the signature had been copied. The matter was not properly put to either of the experts and neither of them had paid much regard to it in their reports. The fact that the pursuer had produced a very similar "M" on the Scottish Gas Board application form seemed to be a satisfactory explanation for it also appearing on the Disposition but not on any of the other sample signatures. I did not regard that matter as vitiating the views which the experts had expressed in relation to the entire signature.

I accordingly find as a fact from the evidence of the handwriting experts that the signature on the disputed Disposition is that of Mr Young the pursuer, finding sufficient support for that view in the surrounding circumstances spoken to by Mr Dunnett. I accordingly reject the pursuer's denial that the signature was his and hold that it was his signature.

The background and surrounding circumstances were that the pursuer and defender, who had been cohabiting, instructed Mr Dunnett, then a partner in Messrs Lindsay Duncan & Black, W.S., and now a minister of religion, to act for them in the purchase of the property at 24 Cathcart Place, Edinburgh as pro indiviso proprietors. That property was subject to various defects for which improvement grants were obtained, and an enhancement in the value of the property so secured. Mr Dunnett's evidence was that shortly thereafter the pursuer, on the narration that he was about to go abroad for employment, instructed him to make over his one half share to the defender. He accepted those instructions and produced the Disposition 15/13 of process which he sent to the pursuer under a covering letter dated 4 February 1986 (15/1/18 of process). The Deed was returned signed to Mr Dunnett who recorded it. He could not recall from whom he obtained the Deed. The matter however had proceeded from 19 November 1985 when Mr Dunnett had written to both parties in relation to the transfer and made arrangements for the loan to be guaranteed and the transfer to be indicated. Mr Dunnett was adamant, and I believe him, that he would not have accepted instructions from Mrs Archibald to transfer Mr Young's property to her and he corresponded with both as can be seen from his file in terms which meant that both of them were aware of how matters were progressing.

Matters proceeded until about 1990 when the parties had a disagreement and the defender raised an action in Edinburgh Sheriff Court to evict the pursuer from the property on the narration that she was the sole proprietor. At that time the pursuer consulted solicitors, Bennett & Robertson, W.S., who made enquiries about the actual Deed. From those enquiries it can be inferred that at that time the pursuer was asserting that he still held title in the property. The most charitable interpretation of that attitude is that as he still remained as a guarantor and that as the insurance policy was still in his name as well as that of the defender, see 15/1/12 of process, he thought he was secure and still had an interest in the property.

Thereafter the parties appeared to have reconciled their differences because they resumed cohabitation. In 1993 however, in an action in the Sheriff Court in Edinburgh the defender again sought to have the pursuer evicted, which he was. Thereafter he proceeded to raise the present action which was commenced after he had obtained legal aid in May or June 1995.

Both minuters strongly argued that reduction should not be allowed on the basis of the delay by the pursuer in pursuing the remedy. I would not have considered this to be a sound defence either on the matter of the alleged delay between 1990 and 1995 or from 1993 to 1995. By 1995 the pursuer personally should not be taken to have anticipated that the defender would attempt to dispose of the property while it was litigious. Accordingly I would have found no bar to the pursuer obtaining reduction on that ground. However, I would not have allowed a reduction in the exercise of the equitable jurisdiction of the Court having regard to the effects upon the bona fide third party purchaser. The pursuer would have had a satisfactory alternative remedy in a sum of damages which he reasonably quantified at £12,000. The defender did not dispute that quantification should damages arise. A further circumstance which would have militated against reduction was that the effect of a reduction would have meant that the pursuer and defender were once again pro indiviso proprietors, a situation which would require to be further resolved having regard to the defender's disposal of such interest as she unquestionably had in the property to Mrs Begum. In all these circumstances even had I found that the signature on the Disposition in issue was not that of Mr Young, I would not have granted reduction.

Since, however, I have found it established that the signature is that of Mr Young on a balance of probabilities, I repel the pursuer's pleas-in-law, sustain the defender's second plea-in-law and the third plea-in-law for the first minuters and the second and third pleas-in-law for the second minuters and grant decree of absolvitor.

Act: Party

Alt: Caldwell

McKay & Norwell, W.S.,

(Defenders)

Grahame

Morton Fraser (First Minuter)

L Milligan

Simpson & Marwick, W.S.,

(Second Minuter)

23 December 1998