Scottish Court of Session Decisions

This is an appeal against an interlocutor of the sheriff principal of Lothian and Borders at Edinburgh dated 15 March 1999 in which he refused an appeal against an interlocutor of the sheriff dated 27 November 1998. The latter interlocutor granted decree as craved in an action brought by the executor dative of the late Heather Pride or Pringle (hereinafter referred to as "the deceased") against her husband, for declarator that (1) the defender was not entitled to any part of two life assurance policies; (2) the pursuer was entitled to relief from him in the sum of £25,499.89; and (3) that the pursuer was entitled to insist on an action of sale of a house in Edinburgh with payment to him of one-half of the free proceeds, along with payment of the sum second craved out of any balance due to the defender.

The pursuer in the action (now the respondent) is the son of the deceased and he was confirmed as executor dative in her estate by confirmation dated 23 August 1995. The deceased died intestate on 26 March 1995, having been killed by the defender (now the appellant) who, on 14 June 1995, pled guilty to a charge of culpable homicide and was sentenced to a period of imprisonment.

Prior to her death, the deceased and the appellant were the pro indiviso proprietors of a property in Edinburgh at 5 Allan Park Loan. That property was subject to standard securities granted in favour of the Halifax Building Society and the Royal Bank of Scotland Plc. The deceased and the appellant were jointly and severally liable for the sums due in respect of those standard securities. In turn those sums were secured respectively, by a life assurance policy in joint names written by the Legal and General Assurance Society and a life assurance policy in joint names written by the Royal Scottish Assurance Plc. Those policies, which matured on the first death, were assigned respectively to the Halifax Building Society and to the Royal Bank of Scotland Plc, and, accordingly, on the death of the deceased the proceeds of the policies were paid to the respective assignees so as to clear the amounts outstanding under the standard securities.

The amount outstanding due to the Halifax Building Society was £38,679.38 and accordingly the appellant's liability therefor was one-half of that sum, namely £19,339.69. The amount outstanding from the Royal Bank of Scotland loan was £9,965.52 and accordingly the appellant's liability therefor was £4,982.76.

In addition, in terms of the assignation in favour of the Royal Bank of Scotland the proceeds of the Royal Scottish Assurance Society policy were to be held "in security of all sums of money for which the party or parties more particularly hereinafter described (who were the appellant and the deceased) and any one or more of them now are or may become liable to the Royal Bank of Scotland Plc". As it happened, at the time of the death of the deceased the appellant was personally indebted to the Royal Bank of Scotland in the sum of £1,177.44 and so in terms of the above assignation the proceeds of the Royal Scottish Assurance Society policy were also used to pay off that debt.

The total sum by which it is said that the appellant benefited as a result of the death of the deceased was £25,499.89, which is the sum specified in the second and third craves of the initial writ.

Following on the death of the deceased the appellant did not make any application under the provisions of the Forfeiture Act 1982 to modify the effect of the forfeiture rule within three months of his conviction, and accordingly the respondent maintains that he is not entitled to benefit from the sums paid out to reduce his liability under the standard securities or his indebtedness to the Royal Bank of Scotland and that those sums amounting to £25,499.89 should be paid to the respondent as executor on the deceased's estate.

The appellant lodged defences to the action and admitted that he was not entitled to share in the estate of the deceased. He also admitted that he had failed to make application in terms of the Forfeiture Act within three months of his conviction. He also admitted that he was not entitled to payment of any part of the proceeds of the policies of assurance and he was agreeable to the sale of the heritable property, although not on the terms craved by the respondent.

His main defence to the action, insofar as it can be gleaned from his averments on record, is that the deceased had no right or interest in the policies of assurance after they had been assigned. Accordingly he maintains that they should not have appeared in the inventory of the deceased's estate in the confirmation and therefore that the respondent has no title to sue. By the same token, and in the light of his second plea-in-law, the appellant appeared to be maintaining that since the deceased had no interest in the policies of assurance after they had been assigned, she had not discharged any sums due by the appellant and so the respondent was not entitled to relief. Finally he appeared to be maintaining, in his third plea-in-law, that the action was incompetent because it involved payment of a sum of money in an action of division and sale. His position was summarised in his fourth plea-in-law which maintained that the action was irrelevant and incompetent and should be dismissed.

In turn the respondent tabled pleas-in-law directed to the relevancy of the defences and sought decree as craved.

On 13 October 1998 the action went to a debate roll hearing before the sheriff on the parties' preliminary pleas-in-law. It is perhaps unfortunate that the appellant, who up until August 1998 had had some legal representation, found himself in the position of having to present his own case. The result was, as the sheriff points out in his Opinion of 27 November 1988, that his argument ranged over a whole series of matters, some of which were not only misconceived but also were not reflected in his averments. In the end of the day the sheriff, for the reasons set out at the end of his Opinion, sustained the respondent's fifth and sixth pleas-in-law, repelled the appellant's pleas-in-law and granted decree as craved.

The appellant appealed to the sheriff principal and on 11 March 1999 the sheriff principal heard the parties and made avizandum.

At the hearing on 11 March 1999 the appellant apparently advanced substantially the same submissions as he had before the sheriff, but in this instance he proffered a document described as an "Oration" which purported to specify his grounds of appeal and his submissions thereon. The sheriff principal decided to place the "Oration" in process along with some other documents produced by the appellant and we now have these items before us. After hearing the appellant on his various grounds of appeal the sheriff principal, by interlocutor dated 15 March 1999, refused the appeal and adhered to the sheriff's interlocutor of 27 November 1998. In effect it is against both these interlocutors that the appellant now appeals to this court but it is with the sheriff principal's interlocutor that we are principally concerned.

The appellant marked his appeal to this court on 23 March 1999 and on 27 April this court appointed parties to lodge their grounds of appeal. The appellant's grounds of appeal were duly lodged and they are ten in number. So far as we can make out from the said "Oration" they are the same grounds as were argued before the sheriff principal but, in addition, when the appeal came before us the appellant proffered a further "Oration" in support of his grounds of appeal.

We have carefully read and considered that document along with the previous "Oration" and such additional arguments as the appellant placed before us. The kindest thing we can say about the combination of all these matters is that they simply expand on the points that were made to the sheriff principal but do not advance them in any way.

One example of this is related to the first ground of appeal in which it is maintained that the sheriff principal failed to rule that the closed record used in the debate on 13 October 1998 was erroneous and not "legal for use" in the debate.

The argument presented to the sheriff principal in this connection was expanded in this court to include allegations of conspiracy between the appellant's former solicitors, the solicitor for the respondent, and even the sheriff court officials to place a false document before the court. It was maintained that the initial writ which formed part of the closed record at the debate before the sheriff was only lodged on 13 January 1998 instead of 13 January 1997 and that this was an indication of how things had gone wrong. The basis for this argument was the appellant's interpretation of an illegible date stamp on the copy of the initial writ in his possession. It soon became clear on examination of the principal initial writ in process and also various other documents that this allegation was wrong, although there were various errors and omissions in those documents. However in our opinion those errors and omissions were not material and there was no basis for attacking the legality of the closed record which was used at the debate.

We do not feel it necessary to deal in detail with the other grounds of appeal which, as we have said, were similar to those before the sheriff principal and which, in our view, were adequately and properly disposed of by him.

Accordingly, we would simply adopt the reasoning and decisions of the sheriff principal on those other grounds and confirm that we agree with him.

Finally it only remains to say that, quite apart from the fact that there is no merit in any of the grounds of appeal before us, the appellant has made no averments on record which could conceivably give rise to a relevant defence to this action. Furthermore, in our opinion the action itself is competently raised and relevantly averred.

In these circumstances we would adhere to the interlocutors of the sheriff principal and the sheriff and refuse the appeal.