Scottish Court of Session Decisions

This was a reclaiming motion against an interlocutor dated 29 January 1999 pronounced by Lord Osborne. The history of the matter is that on 23 October 1998 Lord Osborne dismissed the petition by Mr. Bell seeking recall of an award of sequestration made against him on 28 January 1998 in the Sheriff Court at Kilmarnock. Mr. Bell reclaimed against that interlocutor. On 18 November 1998, an Extra Division presided over by Lord Kirkwood, ordained Mr. Bell within 28 days from 18 November 1998 to find caution for or to consign in the name of the Accountant of Court as caution for expenses the sum of £2,500. Mr. Bell did not comply with that interlocutor and, after hearing submissions from the parties, the Second Division, presided over by the Lord Justice Clerk, refused the reclaiming motion for reasons set forth in an Opinion dated 7 January 1999. The matter was remitted to the Lord Ordinary to deal with the expenses so far as not otherwise dealt with. In that context the Lord Ordinary, Lord Osborne, pronounced the interlocutor of 29 January 1999 finding the petitioner (Mr. Bell) liable to the respondent in the expenses of the cause and made the usual order to remit to the Accountant of Court. After sundry procedure, including the lodging and amending of the grounds of appeal, the matter came before the court on the same occasion as the reclaiming motion against the interlocutor pronounced by the Lord Ordinary (Lord MacLean) on 12 January 1999. The same arguments were repeated and developed, to the effect that the sequestration of Mr. Bell was based upon fundamental flaws. Mr. Bell acknowledged that there was no point in going on with his arguments if the arguments fell to be rejected in the reclaiming motion against the interlocutor of Lord MacLean of 12 January 1999. He also sought to present an argument under reference to sections of the Bankruptcy (Scotland) Act 1985, as amended, but he could point to no section which supported his argument that the sequestration itself ought to be recalled. He simply repeated arguments already entertained and rejected to the effect that the sequestration had been flawed for reasons which the court had wrongfully dismissed in the course of earlier hearings. He maintained that the various interlocutors of various judges, sheriffs and Divisions of the Inner House were "tainted". He also submitted that the Accountant of Court, the Lord Ordinary and the Inner House presided over by the Lord Justice Clerk had all been deceived by the solicitor advocate appearing for the petitioner in the petition for sequestration. He also invited the court to hear an argument which he had not previously presented but was contained in a letter addressed to the sheriff dated 17 March 1999, a copy of which he produced. That argument, however, relates to the question of what properly falls under Mr. Bell's sequestration. It has nothing whatsoever to do with the validity of the sequestration itself. Mr. Bell sought to justify reference to it by submitting that it supported his basic position, which was that the proceedings were vitiated by fundamental flaws. He expressed various misgivings about the state of justice in Scotland before concluding his submissions.

The court was not addressed at all in relation to any possible flaws in the interlocutor pronounced by the Lord Ordinary on 29 January 1999. In these circumstances the reclaiming motion was refused. The expenses were awarded against Mr. Bell.