Scottish Court of Session Decisions

On 9 January 1998 I pronounced an Interlocutor exonerating and discharging the Noter of his sole actings, intromissions and management as judicial factor ad interim on the trust estate of the late Janet McLanachan. I also granted warrant to and authorised and ordained the Accountant of Court to deliver up the Noter's Bond of Caution. Lastly, I found the Noter entitled to the expenses of and incidental to his application for exoneration and discharge out of the capital of the Trust Estate. The Objector, Mr Bell, reclaimed that interlocutor. On 11 March 1998 the Second Division of the Inner House refused the Objector's reclaiming motion; found that the expenses occasioned by the reclaiming motion formed a proper charge against the funds of the Trust Estate; and remitted to me, as Lord Ordinary, to proceed as accords. The only matter that remained outstanding was the expenses of the Procedure Roll debate which I heard on 19 December 1997 and which expenses I expressly reserved in the Interlocutor of 9 January 1998.

A motion was enrolled on behalf of the Noter to find the Noter entitled to the expenses of the Procedure Roll hearing of 19 December 1997 out of the property of the Trust. This motion was opposed by Mr Bell as Objector. I heard the motion on 12 January 1999 and granted it, rejecting Mr Bell's submissions. I now understand that the Interlocutor I pronounced on 12 January 1999 has been reclaimed by Mr Bell.

It might be thought that, since the Noter had succeeded before me at the Procedure Roll hearing and then later in the reclaiming motion from my Interlocutor, the outcome of the motion for expenses was a foregone conclusion. Mr Bell, however, sought to persuade me otherwise. His first submission was that the Noter was not entitled to charge the expenses of the proceedings against the estate without the special authority of the Lord Ordinary in terms of section 15 of the Judicial Factors Act 1849. That special authority, he said, had never been obtained. This submission, in my opinion, proceeded on a plain misreading of the section. Special authority is only required where the factor himself objects to the Accountant's report. In this case the Noter, as factor, wished the Court to approve the Accountant of Court's report, and it was Mr Bell who objected to the report.

Mr Bell submitted further that it was not competent for me, sitting in the Outer House, to deal with this matter since the action was depending in the Inner House. It is, of course, not depending in the Inner House, but has been remitted to me in the Outer House to proceed as accords, as I have already pointed out.

Mr Bell next submitted that ten months had elapsed since the final Interlocutor of 11 March 1998. In terms of Role of Court 42.1(2)(a) the Noter had four months within which to lodge an account of expenses from the date of that Interlocutor, and he had not done so. The Interlocutor of 11 March 1998, of course, is not final because it has remitted the cause to me to proceed as accords - namely by dealing with the question of the outstanding expenses of the Procedure Roll hearing.

In any event, the judicial factor, said Mr Bell, had misconducted himself, and he should be made liable for the expenses as a penalty in terms of section 6 of the Judicial Factors Act 1849. Between 24 September 1994 and 12 December 1995 the estate was maladministered, and in this period the beneficiary received no revenue. The balance of the estate should have been made over to the testatrix's grandson but that had not been accomplished. Instead, the Noter had decimated the estate from a capital sum of £6,293 to a capital sum of £2,182 and, as Mr Bell put it, he desired to lay his rapacious hands on the remainder. This objection is broadly the same one that I considered and rejected on pages 5 to 6 of my opinion and which formed the third ground of appeal in the last reclaiming motion before the Inner House. That ground of appeal was rejected by the Court on page 3 of its opinion.

Lastly, Mr Bell made reference to an appearance he was due to make in Kilmarnock Sheriff Court on the following day. He alleged that the Noter's motion was timed to cause him the greatest embarrassment before the Sheriff who because of the motion would not be unbiassed. The Trust Estate, he said, was sub judice: it had been unlawfully sequestrated. I confess that I found it very difficult to follow this submission, but Mr Marshall, who appeared for the Noter, informed me that it was Mr Bell himself who had been sequestrated, and that what Mr Bell sought in Kilmarnock Sheriff Court and its outcome, had no bearing whatsoever upon the motion I had to consider.

In my opinion, none of the submissions made by Mr Bell, singly or collectively, had any merit and I saw no reason not to grant the Noter's motion. As the Interlocutor of 12 January 1999 bears out, I granted the motion.