Scottish Court of Session Decisions

On 23 October 1998, I pronounced an interlocutor sustaining plea-in-law 1 for the respondents and dismissing the present petition, reserving all questions of expenses. My reasons for taking that course are explained in my Opinion of even date. Thereafter, the petitioner caused to be enrolled a reclaiming motion against that interlocutor. After sundry procedure, on 7 January 1999, that reclaiming motion was refused for the reasons set forth in the Opinion of the Court, dated 7 January 1999.

On 29 January 1999 there came before me a motion enrolled on behalf of the respondents to find the petitioner liable to the respondents in the expenses of the petition as taxed. This motion was opposed by the petitioner on the ground stated in the form of opposition, which was: "On behalf of the petitioner for the respondents' motion to be declared incompetent on the ground that the hearings of 9 October 1998 and 7 January 1999 were fundamentally flawed". At the hearing of this motion on 29 January 1999, Mr Marshall, Solicitor Advocate for the respondents, moved the motion, reminding the Court that the petition had been dismissed, as I have narrated, and that a subsequent reclaiming motion against that dismissal had been refused. The expenses of that reclaiming motion had been awarded against the petitioner. The respondents now sought the expenses of the petition itself. He also sought that these expenses should be treated as expenses in the sequestration process, which the Court had power to order in terms of section 17(7) of the Bankruptcy (Scotland) Act 1985. It was said that the respondents had been put to significant expense by the petition for recall of the sequestration, which had failed. There was no reason why expenses should not follow success in the ordinary way.

The petitioner who appeared on his own behalf, then addressed me in supporting his opposition to the motion. He proceeded to attempt to examine the merits of the Opinion which I issued on 23 October 1998, which he asserted was flawed. It made no reference to section 12(3A)(a) of the Act of 1985. He went on to say that the decision of 23 October 1998 was flawed in another fundamental respect. That was because the matter was sub judice in the Sheriff Court under section 31(6) of the Act of 1985. There was to be a hearing in relation to that matter on 17 March 1999. In that connection reliance would be placed upon section 33 of the Act of 1995. The petitioner submitted that, for these reasons, the present motion for expenses should be refused. He also drew attention to the fact that his deceased wife's estate had also been sequestrated, which was unlawful.

In the light of the foregoing submissions, I decided to grant the respondents' motion. It appeared to me that no sound reason had been stated by the petitioner as to why the ordinary rule in expenses, to the effect that they should follow success, should be departed from in this case. In particular, it appeared to me that the existence of the proceedings in the Sheriff Court mentioned by the petitioner possessed no relevance, those proceedings being unconnected with the recall of sequestration. What, in effect, the petitioner tried to do at the hearing of the motion was to reopen the merits of my decision of 23 October 1998, which, in view of the refusal of the reclaiming motion against it, stood. In my opinion, it was not open to the petitioner to attempt such an exercise in connection with the present motion. As regards the application made in terms of section 17(7) of the Act of 1985, the petitioner did not oppose it, as I understood him.