Scottish Court of Session Decisions

[1] This is a reclaiming motion against an interlocutor of the Lord Ordinary in which, after proof, he granted decree of reduction as concluded for. In a conjoined action at the instance of the reclaimer, he assoilzied the defender, the respondent in this reclaiming motion. The pursuer raised an action of reduction against the defender, her son, for

The ground of reduction was that she had been induced to sign this document by force and fear. The property at 93-95 Main Street, Bainsford, referred to in the conclusion was formerly a chip shop and related premises but is now a cleared site. The site falls into two parts. The subjects at 93 Main Street, the former chip shop, are owned exclusively by the pursuer's sister-in-law, a Mrs. Wendy Evangelisti. The subjects at 95 and 95A Main Street belong to the pursuer, her sister Mrs. Rena Pellegrini and Mrs. Evangelisti equally among them. Parties agreed, by joint minute, that the pursuer's interest in the subjects at 93-95 Main Street was thus confined to her one-third pro indiviso share in the property at 95 and 95A Main Street. It was agreed that the disputed document, unless reduced, constitutes an enforceable obligation on the part of the pursuer to convey her share to the defender. In the conjoined action, the reclaimer, as pursuer in that action, sought declarator that the respondent, as defender in that action, was bound to transfer to the reclaimer her interest in the heritable subjects concerned, decree for implement of that obligation, interdict and interim interdict incidental to these conclusions and, failing implement, decree for payment of £30,000. It being accepted on the respondent's behalf that, unless the action of reduction succeeded, the conclusions for declarator and implement in the action at the instance of the reclaimer must be granted, the live issue in the proof was whether the disputed document should be reduced. The two actions being conjoined in the circumstances, the reduction action was made the leading one.

[2] The pursuer's case for reduction included averments that she had been

The defender had left school in 1982, had failed to find employment initially, had joined the Army in 1986, had left the Army in the spring of 1988 on medical grounds and thereafter, she averred, he would not look for work but interfered in a chip shop business which the pursuer had in Uddingston. In her averments, the pursuer made detailed allegations of the various ways in which the defender's physical and psychological behaviour caused her to become frightened of him. In his pleadings, the pursuer responded in detail to allegations made by the pursuer and his averments involved denial of having behaved in a way to cause the pursuer to become frightened of him. He explained that the background to the pursuer willingly signing the disputed document was that the pursuer owed him various sums of money in respect of sums paid to and on behalf of the pursuer by the defender and a sum of £1,000 promised to be paid by the pursuer to the defender if he joined the Army, which he did.

[3] So far as the circumstances of her coming to sign the disputed document are concerned, the pursuer averred that,

She later avers,

The defender's averments as to the circumstances of the pursuer signing the disputed document on 15 July 1989 alleged that the pursuer had been indebted to him in the ways already referred to and that it was agreed between the parties on 15 July 1989 that in consideration of his agreeing to extinguish these debts the pursuer would transfer to him her interest in the heritable subjects in Bainsford and that that agreement was recorded in the disputed document, which the pursuer signed freely.

[4] At the proof, both parties were represented by counsel. The Lord Ordinary, in his opinion, explains that there was little dispute as to the law. Reference was made to the cases of Priestnell v. Hutcheson (1857) 19 D. 495; Hislop v. Dickson Motors (Forres) Limited 1978 S.L.T. (Notes) 73; Gloag on Contract at page 488; Hunter v. Bradford Property Trust Limited 1977 S.L.T. (Notes) 33 and the Stair Memorial Encyclopaedia of the Laws of Scotland vol. 15 para. 673. In the result, the Lord Ordinary concluded that in light of these authorities he was of the opinion that counsel for the pursuer was well-founded in maintaining that, in seeking to show that at the time when she signed the disputed document the pursuer's will had been overpowered so that there was no true consent, he could properly point beyond the circumstances of the particular occasion to the behaviour of the defender towards the pursuer over the longer period addressed in the averments, and its cumulative impact on her. He concluded also that the authorities led him to the view that if he was to find it proved that the defender did overpower the will of the pursuer in the way alleged, it would not be a sufficient defence for the defender to show that at the time the pursuer was indebted to him in a sum broadly equivalent to the value of the property which she undertook to convey. On the other hand, the existence of a prior debt, if established, was a factor which required, in his view, to be taken into account in deciding whether it had been proved that the pursuer's will was overpowered by the defender's alleged bullying. The Lord Ordinary referred to what he described as the useful observations of Lord Maxwell in his opinion in the case of Hislop where he said (at page 75),

In concluding in favour of the pursuer in the circumstances of the present case, it is clear that the Lord Ordinary carefully considered that from the pursuer's evidence one element in her reasoning when she gave into the demand that she sign the disputed document was a belief that the defender would never rely on it. He concluded that it would be wrong to treat the pursuer's belief that the defender would never found on the disputed document as an independent factor separate from his bullying, which can be held to account for her agreeing to sign it. Rather he regarded it as appropriate to bear that factor in mind in judging whether the pursuer gave in too easily to the effect of the bullying. He concluded that it must be legitimate to take account of any factor which would in the circumstances have reduced the resolve of a person of ordinary firmness. In the circumstances of the present case, he was of the opinion that a mother of ordinary firmness, believing as the pursuer did that her son was unlikely to enforce a document which he was pressurising her to sign, would give in to the pressure more easily than she would do in the absence of that belief.

[5] The reclaimer appeared as a party litigant in the reclaiming motion. It was not contended that the Lord Ordinary erred in law as to the test to be satisfied in this case for the pursuer to be entitled to decree of reduction. We agree that there would be no sound ground for challenging the test which the Lord Ordinary applied.

[6] In his opinion, the Lord Ordinary referred to evidence given by the pursuer, by Dr. Colville, the family general practitioner, Mrs. Wendy Evangelisti, the pursuer's sister-in-law, Mrs. Pellegrini, the pursuer's sister, the defender, Hugh Maloney, a delivery man at the shop, Carla Rea, the pursuer's daughter and defender's sister, her husband Michael Rea and Amerigo Russo, the pursuer's husband and defender's father. In the course of his review of the evidence, the Lord Ordinary pointed out that a manuscript document (No. 33/1 of process) reading "To whom it may concern. I Marie Russo give Adrian my son the third of the piece of land in Falkirk part payment of £6,000. M. Russo", was in a curious position. This was because on the one hand the defender did not seek to found any claim on it in the event of the disputed document being reduced, while on the other hand the pursuer did not aver that it had been extorted by force and fear or seek to have it reduced. There was evidence that this document was written in May or June 1989, accordingly antedating the disputed document. The Lord Ordinary concluded that he could only have regard to it to the extent that it may cast light on the circumstances prevailing at the time when the disputed document was executed. The pursuer acknowledged that it was in her handwriting but denied that she was ever indebted to the defender in the sum of £6,000. She could not explain why she wrote it, other than simply to pacify the defender. The defender made the point that it was not written in shaky handwriting and that no threats had been used in connection with it. Mr. Russo's evidence was that it was he who brought up the subject of the pursuer giving the defender her interest in the ground at Falkirk as payment, and that she said "all right" and signed the paper (No. 33/1 of process).

[7] In concluding that the defender did over a considerable period behave towards the pursuer in an aggressive and bullying manner, the Lord Ordinary held that it was not by any means as long as the 15 years mentioned in the pursuer's pleadings. There had been no evidence to support as long a period as that but the evidence did, in his view, establish such behaviour for a period of about a year before the defender enlisted in the Army, about three years before the disputed document was signed and for a period of over a year after his discharge from the Army. He based that conclusion in the first place on the evidence of the pursuer, which he broadly accepted. She impressed him as being in general a truthful witness, although not in all respects wholly reliable. He rejected the defender's and Mr. Russo's view of her as a skilled actress who was putting on an act to mislead him. The general tone of her evidence was free of bitterness or rancour, and more one of sorrow at the breakdown of her relationship with the defender. He explained that certain individual episodes mentioned in evidence did not seem to him to have as much significance as was sought to be attached to them. He referred to evidence given by Dr. Colville as providing support for the pursuer's claim that her health was adversely affected by the defender's behaviour. He found additional support for the pursuer's general evidence about the defender's behaviour and the evidence of Mrs. Pellegrini and Mrs. Evangelisti, both in general and in relation to specific incidents which they were able to describe. He said that Mrs. Evangelisti in particular impressed him as an intelligent and articulate witness who was better able than other witnesses to convey an impression of the menacing manner which the defender adopted towards the pursuer. He rejected the suggestion that they were giving false evidence because of their interest in the outcome of the actions. He preferred their evidence to the very general evidence of Carla and Michael Rea to the effect that there was nothing untoward in the relationship between the pursuer and the defender. He rejected the evidence of the defender in so far as he denied bullying the pursuer. He did not regard him as a witness on whose evidence, when in conflict with other evidence, it would be safe to place reliance. He regarded his credibility and his reliability as in doubt. In the course of his evidence he had evinced considerable hostility towards the pursuer, mixed with self-righteousness. Much of what he had said was coloured by that hostility. He did not believe his denials of having bullied the pursuer or used violence on occasions towards her. He took the view that it must have been obvious to him that his aggressive and overbearing behaviour was having an adverse effect on her health. He also rejected the evidence of Mr. Russo in so far as he sought to suggest that there was nothing amiss in the defender's behaviour towards the pursuer and that there was no adverse effect on her health. He did not regard Mr. Russo as in general credible or reliable. The Lord Ordinary dealt in detail with the evidence in relation to the defender's allegations of debts being due by the pursuer to him. His conclusion as to the position as at July 1989 was that the pursuer did owe the defender £1,000 which she had agreed should be paid as an incentive for him to join the Army but that otherwise no sums had been shown by the defender to be due by the pursuer to him. So far as the events of 15 July 1989 are concerned, the Lord Ordinary rejected the evidence that the pursuer had signed the disputed document willingly and freely. He took the view that although little was done actively by the defender that evening to coerce the pursuer, the event must be seen in the context of the course of behaviour on his part which he had held proved. He took the view that the pursuer was materially influenced by that hist

[8] The reclaimer lodged 30 grounds of appeal, the first 29 of which he adhered to at the hearing of the reclaiming motion. At the commencement of the hearing, he lodged extensive notes in support of his submissions. He also made oral submissions and replied to the submissions made by Mr. Campbell, for the respondent. His first ground of appeal was that the Lord Ordinary had succumbed to emotional involvement in the cause which he was not entitled to do. Reference was made to passages in the Lord Ordinary's opinion. He submitted that the Lord Ordinary had abused his judicial discretion. He had become over sympathetic to the cause of the pursuer and deliberately manipulated the true and relevant evidence. So far as this ground of appeal is concerned, we accept the submission made by Mr. Campbell that there was no substance whatsoever in this allegation of what the reclaimer summarised as being "judicial oppression". It is indeed clear from the Lord Ordinary's opinion and the transcript of the evidence that the Lord Ordinary acted fairly throughout the proof and that, subject to a possible minor omission conceded by Mr. Campbell in his treatment of Dr. Colville's evidence, to which we will refer later, the Lord Ordinary dealt thoroughly with the evidence and submissions on the material issues in the case.

[9] The second ground of appeal involves alleged failure by the Lord Ordinary to record "any or all of the submissions made to him and by failing to express a view on same thereafter". The reclaimer was unable to specify any material submissions omitted from his opinion by the Lord Ordinary. Mr. Campbell, who also appeared for the respondent at the proof, stated that he was unaware of any such submission omitted from the Lord Ordinary's opinion. We reject this ground of appeal.

[10] The third ground of appeal submitted that the Lord Ordinary had failed to grant decree in the reclaimer's favour for the sum of £1,000 which he concluded was due by the defender to the pursuer. Mr. Campbell submitted that the reclaimer did not seek decree for any debt in the conjoined action. His only monetary conclusion was for payment of £30,000 failing implement in the event that he was found entitled to such implement. This ground of appeal is clearly misconceived.

[11] The fourth ground of appeal involved the submission that the Lord Ordinary had erred in law and in fact by finding that advances made by the defender to the pursuer for such purposes as expenditure on the family house did not constitute valid debts owed by the pursuer to the defender. Mr. Campbell submitted that all that the reclaimer could claim in this respect was that advances for expenditure on the house might give him a patrimonial interest in what such advances were spent on. This ground of appeal was wrong in law. We agree with Mr. Campbell.

[12] The fifth, sixth and seventh grounds of appeal involve the submission that the Lord Ordinary should have given the defender a judicial warning that he did not require to answer a question posed by the Lord Ordinary to the defender if the defender's answer tended to incriminate him in a criminal offence. The matter arose in this way. The defender had lodged documentation relating to a loan of £2,500 which he had obtained from the Halifax Building Society and which he claimed he either advanced to, or expended for the benefit of, the pursuer. The defender gave evidence which tended to suggest that he had obtained this loan on the strength of Army earnings which had ceased. The questioning by the Lord Ordinary referred to in these grounds of appeal was clearly seeking to confirm whether this was, indeed, the case. In the event, the defender accepted that he had obtained the loan on the basis of earnings which had ceased. Later in his evidence he referred to this as a "white lie". One aspect of these grounds of appeal was the contention that the Lord Ordinary had erred in law in taking any account of this evidence in assessing the credibility of the defender. Mr. Campbell pointed out that no submission had been made by counsel for the defender to any such effect to the Lord Ordinary. The defender had lodged and founded upon the documentation about the Halifax loan and all that the Lord Ordinary was doing was seeking to check whether inferences to be drawn from evidence already led were, indeed, correct. The Lord Ordinary had not erred in law. In any event, failure to give the warning desiderated, had it been appropriate, would not prevent evidence elicited by such questioning from being used for the purposes of this civil action, in particular on the matter of credibility. We agree with Mr. Campbell on this matter and reject these grounds of appeal.

[13] The eighth, ninth and tenth grounds of appeal relate to the evidence of Dr. Colville and to medical records bearing to relate to the pursuer but which, in part, were found to contain entries relating to the defender, being entries which had been misfiled. We have already referred to a conceded possible omission in the Lord Ordinary's opinion. This relates to a question and answer in the course of the examination-in-chief of Dr. Colville, who was a witness for the pursuer. Dr. Colville was asked by Mr. Campbell with regard to the pursuer, his patient, "Do you think that she is the type of person who might be forced to do something against her will?". Dr. Colville replied, "On balance I don't think so because she had the guts if you will pardon the expression to get out of the house when she felt uncomfortable about it." The Lord Ordinary does not mention this particular item of evidence in the course of his opinion. As Mr. Campbell conceded that this omission amounted to what Mr. Campbell described as a "mistake", it is right for us to treat it as such, whether the concession be well-founded or not. Mr. Campbell submitted that this omission

did not undermine the Lord Ordinary's conclusions as to the significance of

Dr. Colville's evidence with regard, in particular, to complaints which he had made to him recorded in her records. Dr. Colville had only limited knowledge of matters material to the question which the Lord Ordinary had to determine as to whether grounds for reduction were established. So far as misfiled reference to the pursuer was concerned, a matter raised in subsequent grounds of appeal, this was accidental and did not give rise to any error of law on the part of the Lord Ordinary. We agree that these grounds of appeal fall to be rejected.

[14] The eleventh ground of appeal relates to the Lord Ordinary having failed to "attach due weight" to habitual exaggeration on the part of the pursuer. The reclaimer's reference to weighing of the evidence inevitably attracted the submission from Mr. Campbell that assessment of the evidence was very much a matter for the Lord Ordinary, who had the advantage of seeing and hearing the witnesses (Thomas v. Thomas 1947 S.C. (H.L.) 45, especially Viscount Simon at page 47). Mr. Campbell submitted that the Lord Ordinary had carried out a careful assessment of the pursuer's evidence holding that she was in general a truthful witness, although not in all respects wholly reliable. He held that certain of the individual episodes mentioned in evidence did not seem to him to have as much significance as was sought to be attached to them by her. He expressly rejected the view of the defender and his father that she was a "skilled actress who was putting on an act to mislead" him. We are satisfied that the Lord Ordinary carried out a careful assessment of the credibility and reliability of the pursuer and that there are no grounds for interfering with the assessment which he made with the advantage of seeing and hearing the witnesses. This ground of appeal is rejected.

[15] The twelfth, thirteenth and fourteenth grounds of appeal relate to the holograph writing (No. 33/1) which apparently antedated the disputed document and to which we have already referred. The reclaimer contended that the Lord Ordinary had misdirected himself in law in forming conclusions about the alleged debts which were inconsistent with the literal terms of this holograph document, which clearly referred to a promise to convey in exchange for extinction of admitted debt. Parole evidence about the document should not have been admitted. Mr. Campbell submitted that no objection was taken to such parole evidence. As the Lord Ordinary pointed out in his opinion, this document was not founded upon by the defender in the conjoined action for implement at his instance other than as evidence in support of the validity of the disputed document. The pursuer did not seek to reduce this document but, in the circumstances, she had no requirement to seek to do so. It is clear to us that both parties accepted this earlier document as being relevant only for evidential purposes in relation to the disputed document so far as the present actions are concerned. In the circumstances, it is clear to us that the Lord Ordinary did not err in any way in his treatment of this earlier document.

[16] The fifteenth and sixteenth grounds of appeal relate to a diary (No. 30/1), being a 1989 diary in which the defender made entries, the only entries in it, reflecting all but the first two alleged payments made by him to the pursuer. In substance, the reclaimer contended that the Lord Ordinary had placed insufficient weight in favour of the defender upon this evidence. He also rather suggested that the Lord Ordinary had treated the diary entries as having been made after the event in order to fabricate supporting evidence for the defender's case. Mr. Campbell submitted that the Lord Ordinary had found nothing of assistance to the defender in the diary entries. The Lord Ordinary had not concluded that the entries were fabricated. Assessment of the significance, if any, of the diary entries was a matter for the Lord Ordinary. We agree with Mr. Campbell's submissions on this matter. In particular, we are satisfied that the Lord Ordinary has not erred in any way in relation to this evidence.

[17] The seventeenth, eighteenth and nineteenth grounds of appeal relate to alleged error on the part of the Lord Ordinary in assessing the evidence of Mr. Malonie, Mrs. Carla Rea and Mr. Michael Rea, all witnesses for the defender, in particular not attaching sufficient weight and relevancy to their evidence, and by attaching too much weight to the evidence of Mrs. Evangelisti. Mr. Campbell submitted that these grounds related to matters which were very much for the Lord Ordinary who had seen and heard the witnesses. The Lord Ordinary had made no error in law in relation to the evidence of these witnesses. We agree with Mr. Campbell's submission.

[18] The twentieth ground of appeal relates to alleged failure by the Lord Ordinary to criticise, and take due account of, failure by the pursuer to lead evidence of witnesses other than her sister and sister-in-law, who had proprietary interest in the matter as pro indiviso owners of the plot of land in issue, in support of her averments about the defender's alleged behaviour. Mr. Campbell submitted that it was for parties to decide what evidence to lead and this ground of appeal disclosed no error of law by the Lord Ordinary. We agree with Mr. Campbell.

[19] The twenty-first ground of appeal relates to alleged failure by the Lord Ordinary to take into account, or express a view on, discrepancy between the pursuer's position in the pleadings, in particular on the matter of alleged debts, and the extent of acceptance by the Lord Ordinary of her evidence. Mr. Campbell submitted that this ground involved a matter of evaluation by the Lord Ordinary of the extent to which he accepted the pursuer's evidence and he had carried out a careful assessment of that matter. His conclusions identified matters upon which he did not accept, or fully accept, the pursuer's evidence. He had not erred in law on this matter. We agree that the Lord Ordinary has not erred in law on this matter.

[20] The twenty-second ground of appeal relates to the Halifax loan already referred to. The reclaimer contends that the Lord Ordinary failed to make a finding on, and take into account and express a view on, evidence that the loan had been repaid in full by the defender after having been personally sued by the creditor. The significance of this point was that the more money that was owing by the pursuer to the defender the more difficult it would be for the pursuer to substantiate grounds for reduction of the disputed document. Mr. Campbell submitted that the Lord Ordinary had explained carefully why he was unable to conclude that any of the payments made by the defender to the pursuer, whether in relation to the Halifax loan or otherwise, constituted debts due by the pursuer to the defender. The submission made in relation to this ground of appeal did not impugn the Lord Ordinary's findings on this matter. We agree that this ground of appeal fails for the reasons given by Mr. Campbell.

[21] The twenty-third ground of appeal makes very much the same point as the twenty-first ground. It is specifically directed to evidence by the pursuer in support of averment on record that the defender did not pay the loan agreement. Mr. Campbell's submission was to the same effect as his submission on the twenty first ground and we agree.

[22] The twenty-fourth ground of appeal submits that the Lord Ordinary erred in law by allowing the defender's misfiled medical records, already referred to, to be lodged in the course of cross-examination of him for the purpose of using an entry therein to contradict evidence given by him in cross-examination denying that he had assaulted his father. The ground of appeal alleges that the information was confidential and should not have been admitted and that the Lord Ordinary has not justified the use which he allowed to be made of this confidential material. It appears from the transcript of the defender's evidence that his counsel did not object to the Lord Ordinary seeing the contents of the medical records concerned for the purpose of deciding whether to grant the pursuer's motion to allow them to be used in the way sought. Mr. Campbell founded upon the case of The Advertising Concessions (and Parent) Company Limited v. Paterson Sons & Co. 1908 S.L.T. 654 in support of his motion. Mr. Campbell accepted that the factual situation in that case was different but submitted that the principle there applied would apply in the circumstances of the present case also. Mr. Kennedy, for the defender, opposed the motion as being inappropriate in the circumstances of the case, in particular where evidence could be sought from the defender's father on the matter, but the Lord Ordinary ruled that the motion should be granted on the grounds that the use sought to be made of the document was competent and relevant in the circumstances. At the hearing of the reclaiming motion, Mr. Campbell submitted that the Lord Ordinary had properly considered the law on the matter before admitting use of the document for the limited purpose involved. The Lord Ordinary had not erred in law on the matter. We agree with Mr. Campbell's submission on this matter.

[23] The twenty-fifth ground of appeal submits that the Lord Ordinary failed to take into account, or express a view, in assessing the credibility of the pursuer, of her conduct during the proof in respect of her "deliberate breach of the defender's medical confidentiality". In his twenty-sixth ground of appeal, the reclaimer submitted that the pursuer's use and deliberate breach of those confidential medical records had not been assessed by the Lord Ordinary or offset against his findings about the defender's conduct during the proof. In the latter ground of appeal he submits that, similarly, such assessment and offset is lacking in relation to the evidence about advances by the defender to the pursuer and the pursuer's denials on record and in evidence about such assistance and in the Lord Ordinary's findings that the allegations by the pursuer of behavioural impropriety by the defender over 15 years were not held established by the Lord Ordinary over nearly such a lengthy period. Mr. Campbell submitted in relation to these matters that they were concerned with assessment of the evidence by the Lord Ordinary of the pursuer and defender respectively and the Lord Ordinary in his opinion made careful assessment and conclusions on these matters. He had not erred in law. We agree with Mr. Campbell.

[24] The twenty-seventh ground of appeal submits that the Lord Ordinary did not take adequate account in favour of the defender of collateral matters. In his written submissions the reclaimer refers to such matters as the defender's good conduct in the Army and his achievements in obtaining legal qualifications in recent years. Mr. Campbell submitted that, these matters being collateral, the Lord Ordinary had not regarded them as relevant for comment and, in this respect, he had not been shown to have erred. We agree with Mr. Campbell.

[25] The twenty-eighth ground of appeal submits that the Lord Ordinary failed to attach sufficient weight relative to the immediate circumstances and factors surrounding the signing by the pursuer of the disputed document. Mr. Campbell submitted that the test to be satisfied for reduction to be warranted was not in dispute at the proof. In particular, there was no submission by Mr. Kennedy that the test appropriate on the authorities cited for the pursuer, in particular that stated by Lord Maxwell in the Hislop case was wrong. Nor, indeed, was it now suggested that that test was wrong. So far as application of the test was concerned, it had not been shown that the Lord Ordinary had erred in law in any way in application of the test to his conclusions on the factual circumstances relevant to that test, including those surrounding the signing by the pursuer of the disputed document. We reject this ground of appeal.

[26] The twenty-ninth ground of appeal submits that the Lord Ordinary failed to find as a fact the approximate value of the pursuer's share of the land in issue at the date of signing of the disputed document. The Lord Ordinary had also erred by finding that the pursuer's established indebtedness to the defender was not commensurate with that value. Mr. Campbell submitted that the Lord Ordinary could not come to the conclusion sought by the defender because there was no evidence to establish what the value of the pursuer's interest was at the date of signing of the disputed document. Furthermore, the Lord Ordinary had concluded, as he was entitled to do, that the defender had not established that the pursuer was owing him any money other than the £1,000 promised if he joined the Army. Accordingly, this ground of appeal also should be rejected. We agree with Mr. Campbell on this matter also.

[27] On the whole matter, we reject the grounds of appeal for the reclaimer and refuse the reclaiming motion against the Lord Ordinary's interlocutor, both in relation to the leading action in which the reclaimer is the defender and the conjoined action, in which he is the pursuer.