Scottish Court of Session Decisions

Brodie & Ors v. Secretary State Scotland [2002] ScotCS 159 (6th June, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LADY SMITH in the cause ALEXANDER TRISTAN DUFF BRODIE of BRODIE &c Pursuers; against SECRETARY OF STATE FOR SCOTLAND &c Defenders:   ________________

 

Pursuers: Party

First Defenders: Dewar, Q.C.; H. F. MacDiarmid, Solicitor to the Advocate General for Scotland

Second Defenders: Thomson; Anderson Strathern, W.S.

Third to Sixth Defenders: Mure; Morton Fraser

6 June 2002

1. As at 15 March 1968, Montagu Ninian Alexander Brodie of Brodie, [the third defender] knew that his son, Alastair Ian Ninian Brodie, was to be married. In contemplation of that marriage, he entered into a Deed of Trust dated 15 March 1968 ['the Settlement Trust'] which included provision whereby his son was to be entitled to the whole free income of the trust estate throughout his life and that the capital was to be held for the children of the marriage and to be paid to them at such times and in such proportions as appointed by his son. The power of appointment included the power to benefit one child or children to the exclusion of others and if the power was not exercised then the capital was to be divided equally between the children. The original trustees under the Settlement Trust were the third, fifth and sixth defenders. The fifth and sixth defenders resigned as trustees in 1983 and were replaced by the fourth defender who remains a trustee along with the third defender.
2. The property transferred into the Settlement Trust by Disposition in favour of the trustees dated 15 and recorded 27 March 1968 included Brodie Castle and estate but not the contents, which remained the property of the third defender. Brodie Sea Salmon Fisheries were also transferred to the Settlement Trust. The third defender's son was married on 15 April 1968 and three children were born of the marriage, who are the pursuers in the present action.
3. By 1978 the pursuers' parents had separated. The pursuers' mother eventually went to Paris with the pursuers who were then aged 9, 8 and 2 years, and their father went to Australia. The trustees of the Settlement Trust decided to sell Brodie Castle, which they were empowered to do in terms of the Trust Deed. Missives were entered into with the Secretary of State for Scotland, who was the original first defender, in terms of which he was to buy the Castle, estate houses, policies, agricultural land and woodlands, for the sum of £130,000. The contents of the Castle included valuable furniture and heirlooms belonging to the third defender. The Secretary of State's offer was conditional upon a bargain being concluded between him and the third defender for the purchase from the third defender and sale to him of the contents of the Castle, at a price of £275,000, the price being in accordance with a valuation by Messrs Christies. The Secretary of State's missive offer was dated 18August 1978 and missives seem to have been concluded shortly after that, possibly by 5 September 1978. The heritable property was transferred in terms of a Disposition dated 5 and 10 October 1978. The bargain for the sale of the contents of the Castle to the Secretary of State for Scotland at a price of £275,000 was concluded and that sale was also affected.
4. The Secretary of State for Scotland bought Brodie Castle with the intention of transferring it to the second defender, the National Trust for Scotland. The third defender paid the sum of £250,000 to the National Trust for Scotland as an endowment for the maintenance of the property that was the subject of the sale, which sum appears to have come from the £275,000 paid to him by the Secretary of State for Scotland in respect of the sale of the contents. The property was transferred to the second defender by Disposition dated 11^th August 1980 in consideration of the second defender undertaking to accept responsibility for its maintenance, preservation, repair and upkeep but without any payment being made.
5. Prior to the acquisition of Brodie Castle by the second defender, a document was drawn up which was signed by the third defender and on behalf of the second defender on 2 May and 11 June 1979 and entitled: 'MINUTE OF AGREEMENT between BRODIE of BRODIE and THE NATIONAL TRUST FOR SCOTLAND' [6/9 of Process]. Its provisions were subject to the following preamble:

"Notwithstanding the absolute nature of the gift of Brodie Castle and its policies and most of its contents to the The National Trust for Scotland, the Trust intend that in the management and administration of the property the following principles in accordance with the wishes of Brodie of Brodie will be given effect to, but wholly at the discretion of the Trust and during their pleasure,"

and included the following :

'ONE Brodie of Brodie will be allowed to remain in occupation of certain rooms in the Castle... :' [there then followed a list of rooms].

The agreement made no provision for the payment of rental for those rooms. The third defender had, prior to the sale of the property to the Secretary of State for Scotland, been living in the Castle as a tenant of the Settlement Trust and paying rent.

6. The subjects have remained the property of the second defenders since 1980 and are open to the public. The third defender has remained in occupation of the rooms detailed in the above Minute of Agreement.
7. The salmon fishings were sold by the trustees by disposition dated 16 and 28 October 1982, at the price of £20,000, to Robert and Margaret Cormie.
8. The above narrative is drawn from the pursuers' pleadings and, to an extent, from what they advised me was their position in the course of submissions. I should comment at the outset that it was clear that the pursuers, though party litigants, had worked extremely hard in preparing for this case, had sought to understand how to formulate written pleadings appropriately and how to seek to defend them in oral submission. They seemed to understand what the issues were that were raised by the defenders and did their best to address them in a logical and prepared manner. I would also take this opportunity to record that counsel for the various defenders impressed me throughout the four days of the hearing as being mindful of the fact that the pursuers were appearing as party litigants and sought, clearly, to assist them insofar as doing so coincided with their professional duties.
9. The pursuers have seven conclusions. The first two are for reduction of the dispositions to the Secretary of State for Scotland and the second defender. The third is for payment to them by the third to sixth defenders of the sum of £33,000. The fourth is for payment to them by the second defender of the sum of £140,000. The fifth and sixth conclusions are for removal of the third and fourth defender as trustees of the Settlement Trust and appointment of new trustees 'of the Pursuers choice'. The seventh conclusion is for expenses.
10. The action came before me on procedure roll when the pursuers amended to substitute the Scottish Ministers as first defenders in place of the Secretary of State for Scotland. All defenders sought dismissal

Conclusions for Reduction:

11. The basis for the pursuers' conclusions for reduction is, essentially, that the sale of Brodie Castle was in breach of trust in respect that it was a sale at undervalue and it was a sale from which the third defender benefited in respect that he received a 'life free rental' of apartments in the castle as part of the sale and profited from the sale of the contents. They assert the right to challenge the sale in their capacity as beneficiaries of the Settlement Trust. As regards the allegation that the sale was at undervalue, the pursuers aver that the property was valued by Messrs Knight Frank and Rutley, on 6 May 1974, at £152,000. There is no averment as to the value of the property in 1978, when it was sold for £130,000 although there is criticism of the third, fifth and sixth defenders for "not conducting a proper independent site valuation" when the sale took place in 1978. At one point in his submissions the first pursuer asserted that the only way that the first defender could have shown that the property was worth less in 1978 than it had been in 1974 would have been to say what a valuation carried out in 1978 would have produced. It was apparent that, in respect of this and other matters raised by the pursuers they failed to understand that, as pursuers, the onus was on them to make out a case and not on the defenders. The second defender has, though, made detailed averments as to how the price of £130,000 was arrived at and that it involved negotiations between Knight, Frank and Rutley and the District Valuer whose initial valuation was in fact less than £130,000. The pursuers respond with "not known and not admitted" averments and they make no attempt to suggest an alternative figure to the price of £130,000 that was paid. There are also averments to the effect that the endowment of £250,000 provided by the third defender should have been taken into account in assessing the value of the property and the pursuers submitted that since, in general, property increases in value, there should be a proof to show that other similar property has increased in value. There are, however, no averments regarding other similar properties or their values. As regards the allegation that the third defender benefited from the sale, the pursuers relied on the terms of the Minute of Agreement between him and the second defender dated 2 May and 11 June 1979. There are also averments to the effect that the sale ought not to have taken place without the consent of the pursuers' parents, which was not given. The basis for those averments appeared, from the submissions of the pursuers, to be that their father had an interest in the trust and that counsel's opinion taken by the trustees at the time of the sale [6/59 of Process] whilst indicating that the trustees did not require to obtain their father's consent did so subject to the proviso that they had to be satisfied that the sale was in the best interests of the beneficiaries as a whole.
12. The pursuers aver that the Secretary of State for Scotland and the second defender were in bad faith in "negotiating life free rent with the third defender" and in negotiating the purchase of the contents of the castle from him because they "knew he could not benefit from the sale". There are no averments as to how the Secretary of State for Scotland or the second defender would have been aware of the terms of the Settlement Trust. However, the first pursuer advised in the course of submissions that the basis for the averments that they would have been so aware was the reference in the Inventory of Writs attached to the Disposition in favour of the Secretary of State for Scotland to the Disposition by the third defender "in favour of himself and others as Trustees dated 15 and recorded GRS Moray and GRS Nairn 27 March 1968". It is not, however averred nor was it suggested in the course of submissions, that either the Secretary of State for Scotland or the second defender would have been aware of the terms of the Settlement Trust or indeed, of anything that passed between the trustees and the beneficiaries. The pursuers' case seemed to be that once they were aware that the Castle was trust property and that the third defender was a trustee, the Secretary of State for Scotland and the second defender were in bad faith in the transaction because the third defender had benefited in that he "profited" from the sale of the contents of the Castle and he obtained a lifetime entitlement to live in it. The second and third defender both aver that the contents had belonged to the third defender and were sold by the third defender to the Secretary of State for Scotland so as to provide the endowment money of £250,000 that was given to the second defender. The pursuers clarified in their submissions, as seems to be indicated by their averments, that they accepted that the contents had belonged to the third defender and were sold by him to the Secretary of State for Scotland, and that he paid an endowment of £250,000 to the second defender for the maintenance of the Castle.
13. The pursuers also aver that the sale was at variance with "European human rights" under reference to Articles 1 and 8 of the European Convention on Human Rights. In submissions, they explained that they sought to argue that the sale of the Castle contravened Article 8 of the Convention because it was a sale to the state and it was only normal, considering the duty to "respect" a person's family home that is provided for by Article 8, for the state to refrain from purchasing the property unless the family has another home, is informed of the sale and is asked to consent to the sale. No authorities were referred to in support of that submission.
14. The first pursuer stated in submission that, in essence, the basis of their claim for reduction was the loss of a family home, a family home which they still required given that the trustees had refused to buy them a house, a family home which they had traumatic memories of having had to leave.
15. Arguments were advanced on behalf of the first and second defenders that the claims for reduction were irrelevant. Firstly, they relied on the Trusts [Scotland] Act 1961 s.2[1] as giving them protection, since the trustees had power to sell the trust property including Brodie Castle at the relevant time. The pursuers' averments of bad faith were, it was submitted, wholly inadequate and there was nothing else in the pursuers' case that enabled them to overcome the absolute protection given to purchasers of trust property afforded by s.2[1]. Insofar as the pursuers relied, in their averments, on s.2[2] of the Trusts [Scotland] Act 1961 those averments were irrelevant in respect that the provisions of s.2[2] simply confirm that nothing in s.2[1] affects any question of liability between trustee and co-trustee or beneficiary. The pursuers, in submission, sought to argue that s.2[1] did not apply to the Secretary of State for Scotland or the second defender because neither were "persons" within the meaning of the subsection. Reference was made to Stroud's Judicial Dictionary.. Counsel for the second defender in response referred to the common law position that prima facie "person" in an Act of Parliament included a corporation as well as a natural person and that there appeared to be no reason why the Secretary of State should not come within the meaning of "person" within the section.
16. Secondly, as regards the averments that the sale of the Castle was at undervalue, the first and second defenders submitted that it was irrelevant in respect that there was no averment as to what the value in 1978 would have been, it could not be assumed that it would have been worth more than in 1974, and thus, despite the pursuers' complaints about the sale, there was not any averment that the property was in fact sold at undervalue at all. As regards the averments that the provision of the endowment should have been taken into account in assessing the value of the property, on no view should that have played any part in the valuation process. The endowment was provided by the third defender, not by the Settlement Trust and it did not, in any event, attach to the property. Further, even if the property was sold at an undervalue and the first and second defenders knew that, they would not have been in bad faith in acquiring it.
17. Thirdly, it was submitted that the averments regarding the sale by the third defender of the contents of the Castle were irrelevant. The contents belonged to the third defender, not the Settlement Trust, and he was entitled to sell them. Further, the pursuers do not suggest that they were sold at a price in excess of market value but aver that they were sold in accordance with a valuation by Christie's, and ultimately, the third defender, in any event, made over to the second defender the bulk of the proceeds of sale of the contents [the balance being spent, according to the second and third defender's averments, on alterations to the Castle so as to separate off the rooms for his occupation after the sale]. In short, not only did he not make a profit, but was out of pocket and there was no question of his being in breach of trust. Further, insofar as the pursuers averred that the third defender benefited from the sale transaction by acquiring a right to live in the Castle rent free for the remainder of his life that was not what the Minute of Agreement provided for. It was clear from the preamble that his possession was precarious. His occupation of the property was wholly at the pleasure of the second defender and he could be removed from it tomorrow if the second defender so wished. In any event there was no loss to the trust in either the sale of the contents or the terms of the Minute of Agreement regarding the third defender's occupation of the property. The pursuers' whole position on the matter of benefit to the third defender was untenable as demonstrated by their averment that "what the third defender decides to do with his personal resources is and was a decision of his taking".
18. Fourthly, it was submitted on behalf of the first and second defenders that it was not relevantly averred that they knew of the terms of the Settlement Trust or, even if they did, that to proceed with acquiring the Castle and contents was in bad faith.
19. Fifthly, it was submitted on behalf of the first and second defenders that the pursuers' averments that the consent of their father was required for the sale of the Castle, were irrelevant as were the averments that he and they were subsequently unhappy about the sale. It was clear from the terms of the Settlement Trust that his consent was not required and the Trustees had taken Counsel's opinion at the time, which opinion was relied on by the pursuers. That opinion reassured them that they did not need to seek the consent of the pursuers' father. In any event, there was no averment that the Secretary of State for Scotland or the second defender had any knowledge of any opposition to the sale until after it had taken place.
20. Regarding the pursuers' averments that the sale was contrary to Articles 1 and 8 of the European Convention on Human Rights, it was submitted on behalf of the first and second defenders that they were plainly irrelevant. The Convention had no relevant application at the time of the sale, there was no averment that the pursuers or their parents lived at the Castle at the time of the sale and in any event the reliance on the Convention was misconceived.
21. It was further submitted on behalf of the first and second defenders that the claims for reduction were flawed in respect that the wrong remedy was being sought. The appropriate remedy where beneficiaries complain of sale of trust property at undervalue is one of accounting.
22. Finally regarding the conclusions for reduction, it was submitted on behalf of the first and second defenders that the pursuers case was irrelevant in respect that they made no averments as to why the equitable remedy of reduction should be exercised in their favour. In particular, they failed to address what would be involved in reduction, the most significant aspects of which were: that the claim that the Castle had not been sold for enough money was not of itself a good reason for restoration to the Settlement Trust, that the Settlement Trust had enjoyed the sale proceeds since 1978, that reduction would result in the loss to the second defender of the Castle, the Castle as returned to the Settlement Trust would be different to that which was sold by them in respect that significant improvements have been carried out, the pursuers do not offer to prove that the Settlement Trust could repay the purchase price [although it was not submitted by counsel for the third and fourth defenders that it could not do so], and that if reduction was granted, the trustees would be burdened with the responsibility of maintaining the Castle and would have to address again the question of what to do with it.
23. Counsel for the third to sixth defenders adopted the other defenders' submissions in respect of the conclusions for reduction, given the obvious interest of the trustees in those claims, in particular that if reduction were granted, the trust would require to pay the sale price plus any payments held to be due in respect of meliorations over the last 24 years.
24. I have no difficulty in reaching the conclusions that the pursuers do not aver any relevant case for reduction of the dispositions in favour of the Secretary of State for Scotland and the second defender. I do recognise the upset and distress experienced by the pursuers at the fact that what they had hoped to be able to regard as their family home is no longer the property of the Brodie family or of the trust from which they may, one day, benefit. Given that the sale of the Castle occurred at about the same time as the break-up of their parents' marriage and a period of evident unrest and uncertainty in their own lives, the acuteness of their feelings regarding the matter of the Castle, which was evident during submissions, is readily understandable. However, I cannot see that they aver any relevant basis in law for reducing the sale and the transfer to the second defender.
25. The pursuers' challenge to the sale is to the effect that it was at variance with the purposes of the trust, in that they aver that the sale was for the benefit of the third defender. In these circumstances, I agree with the first and second defender that they are entitled to rely on the provisions of s.2[1] of the Trusts [ Scotland] Act 1961 for protection and that, accordingly, it is not open to the pursuers to challenge the validity of the sale to the Secretary of State for Scotland . That being so, it follows that it is not open to them to challenge the validity of the transfer to the second defender. As regards the pursuers' submissions that the word "person" in s.2[1] is not apt to include the Secretary of State for Scotland, I consider that there is no merit in the argument . Nothing in the section or in the Trusts [ Scotland] Act 1961 indicates that the term should be read as being restricted so as to exclude a person holding property in an ex officio capacity, as here. There is no apparent reason for such a restriction.
26. As regards the pursuers' case that the dispositions fall to be reduced on grounds of bad faith, there are four matters that require to be addressed, namely, whether there are relevant averments that there was a sale at undervalue, whether there are relevant averments that the sale was to the benefit of the third defender, whether there are relevant averments of knowledge of those two factors on the part of the Secretary of State for Scotland and the second defender, and whether, if there are any such averments, they amount to sufficient support for the case that the Secretary of State for Scotland and the second defender acted in bad faith in their respective acquisitions of the Castle. I did not understand the defenders' counsel to submit that reduction of a disposition could never be granted where the disponee was aware that the disposition was granted by trustees at undervalue and for the benefit of one of their number . In a particular case, such circumstances might indeed be relevant in an action of reduction. I cannot, however, hold that the pursuers' averments in this case are relevant in respect of any of the above four matters. I agree that they do not in fact aver that the sale in 1978 was for a sum that was lower than the value of the property at that time and I do not accept that it can be assumed that the property would have increased in value in the period 1974-8. The pursuers' case on this matter is encapsulated in their averment : "The sale of the said property to the first defender dated 5 October 1978....for ..£130,000 was less than the [1974] valuation and therefore in breach of trust." but that does not amount to a relevant case of sale at undervalue or breach of trust at all.
27. Further, I agree that the averments to the effect that the sale was to the benefit of the third defender are irrelevant and do not amount to any prima facie case of breach of trust on his part. The Minute of Agreement between the second and third defender was expressly relied on by the pursuers for their averment that the Secretary of State for Scotland and the second defender negotiated an agreement with the third defender "allowing him life free rental of apartments within the said property of Brodie Castle as part of the said sale." From the terms of their submissions to me, I understood the pursuers to be referring to a liferent when using the expression "life free rent". The Minute of Agreement is not, though, an agreement between the party who purchased from the Trustees and the third defender but between the second defender and him. By the time that it was entered into, the property had left the trust and there is no reference in the missives to which my attention was drawn by the pursuers [6/18 and 19 of Process] to any arrangement that was to be entered into with the third defender regarding his occupation of the property. Further, it is clear from the preamble to the Minute of Agreement that the third defender did not acquire any rights in the property. He did not acquire a tenancy. He did not acquire a liferent. He could be required to leave the property at any time. I was urged by the pursuers to regard the third defender as having a "life free rent"' because he had, as a matter of fact, carried on living in the castle since 1978 but that does not, in my opinion, alter matters. His residence continues to be on the basis of the Minute of Agreement and continues, accordingly, to be precarious in the sense that the second defender could decide to terminate the arrangement at any time. Further, the intention was, in terms of the Minute of Agreement, that the third defender would pay for any alterations required and for utilities. Those costs are funded by neither first nor second defender. In respect that the Minute of Agreement also allows for the rent free utilisation of the sawmill by the second defender, that does not, contrary to a submission made by the pursuers, show that there was loss to the Settlement Trust involved in the Minute of Agreement as the clause in question [ Nine] is not inconsistent with the Settlement Trust retaining ownership of the sawmill and of the right to use it, albeit subject to use by the second defender and with the benefit of the second defender paying the costs of maintenance, insurance and any rates.
28. I also agree with the defenders' submissions that the pursuers' averments do not amount to a case of bad faith on the part of the Secretary of State for Scotland or the second defender, that is relevant and sufficient for proof. The pursuers certainly aver that those defenders knew that the third defender was trustee and settlor of the Settlement Trust, knew that he could not benefit from the sale and that they "acted in bad faith in negotiating life free rent with the Third Defender." However, those bald averments do not amount to sufficient notice of a relevant case of bad faith. I have already stated that I do not consider that the Minute of Agreement between the second and third defender had the effect of conferring a liferent interest on the third defender. Further, it was clear from the pursuers' submissions that those averments were founded on the reference to the Disposition in favour of the Settlement Trustees that appears in the Inventory of Writs to the Disposition in favour of the Secretary of State for Scotland. They cannot, accordingly, be regarded as even offering to prove that the Secretary of State for Scotland or the second defender were aware of the terms of the Settlement Trust let alone that they failed to have an honest belief that the transaction was one which could properly be entered into by the trustees. The pursuers' conclusions as to bad faith appeared to stem from a misapprehension that purchasers of heritage who know that they are buying from a trust will necessarily become aware of the terms of the underlying trust deed and possibly also of the state of relationships between the trustees and beneficiaries. No such inferences can be drawn but even if they could, the result in this case would only be to infer that the Secretary of State for Scotland knew of the terms of the Settlement Trust which in fact did confer a power of sale on the Trustees. Neither the Secretary of State for Scotland nor the second defender would, on that basis, have reason to think that the sale was in breach of trust or to have anything other than an honest belief that the trustees were acting properly. Even if one were to go further and infer that the Secretary of State for Scotland would have become aware of the terms of the arrangements between the second and third defenders as set out in the Minute of Agreement that could not, for the reasons that I have already explained, have been expected to lead to his concluding that the third defender was benefiting from the sale so as to put the Secretary of State for Scotland in bad faith.
29. Turning to the question of whether or not the consent of the pursuers' father to the sale was required, I reject that submission. The terms of the Settlement Trust are clear. The pursuers' father, as liferenter, has no right to be consulted as regards the sale of trust property nor does he have any power of veto in respect of any such sale. The opinion of Senior Counsel which was taken prior to the sale [6/59 of Process] makes it clear that the trustees were so advised at that time. The pursuers submitted that, in terms of that opinion, the trustees had in fact been advised that they did need the consent of their father. Whilst the author of the opinion, Lord Jauncey (Mr Jauncey QC, as he then was), stated: "However, provided that [the trustees] are satisfied that the sale of the Castle is in the best interests of the beneficiaries as a whole and the price therefor is a fair and proper one, I do not consider that they need obtain Alastair's consent", I do not read that as advising anything more than that if the trustees considered that the sale would in fact prejudice any of the beneficiaries then, for their own protection, they should seek the comfort of the consent of the liferenter. It certainly does not, in my view, amount to advice that the trustees required, for the transaction to be a valid one, to obtain the consent of the pursuers' father.
30. The submission that the sale of the Castle contravened the European Convention on Human Rights is also ill-founded, in my view. Not only had the Convention not been incorporated into our law at the time of the sale but it is quite plain that no breach of Articles 1 or 8 was involved. The pursuers' submission that where a public body is buying heritable property which is a family home, there is a breach of Article 8 where the family do not have another home, are not informed and are not asked for their consent was presented as a plea as to what they consider the law should be and has no foundation in authority. In any event, there are no averments that the Castle was the pursuers' family home at the time of the sale. On the contrary, they aver that their parents were in Australia at the time of the sale and that they and their mother stayed in Paris from 1978 until July 1982.
31. Turning finally to the defenders' criticisms that the pursuers have not addressed the question of whether or not reduction would be an equitable remedy, I agree that it is a matter which falls to be addressed in the circumstances of the present case and that the pursuers have not done so. In particular, the obvious remedy where sale at undervalue or other breach of trust is alleged is one of accounting directed against the trustees. That being so, a case for reduction directed against third party disponees would require to be very clearly made out on equitable grounds, in my opinion. The need to do so is particularly strong where, as here, the dispositions under attack were granted so many years ago and it is evident from the pursuers' pleadings that they accept that significant works have been carried out on the property by the Secretary of State for Scotland and/or the second defender.
32. I conclude, therefore, that the pursuers have not averred a relevant case for reduction of the dispositions in favour of the Secretary of State for Scotland and the second defender.

Conclusion for payment by the Settlement Trustees of £33,000:

33. The basis of this claim is an allegation that the trustees sold the salmon fisheries for £20,000 but should have sold them for £53,000. It is averred that the trustees had, as part of the pursuers' parents' divorce proceedings, agreed to sell the salmon fisheries for £53,000 and for the money to go towards the purchase of a dwelling house for the pursuers. The pursuers complain that not only were the fisheries sold for only £20,000 but that no house was ever purchased for them. I was advised by the pursuers in submission that the foundation for their averments on this matter was the content of an agreement dated 26 January 1982 from Colin Stroyan of Messrs Brodies WS to J P Watson of Messrs Lindays WS [6/10 of Process]. It is evident that that document is in fact a letter relating to the pursuers' parents divorce. In the letter Mr Stroyan indicated that discussions had taken place with his client and the third defender. It appears that the discussions arose at least in part from a desire on the part of the pursuers' mother that the Settlement Trust funds be divided. The letter indicates not terms of an agreement already entered into but a number of proposals including that the pursuers' father would be represented in the divorce proceedings by Mr McLellan of Dundas & Wilson, that the existing trustees of the Settlement Trust would "sell the Brodie Salmon Fishings which they hope will provide an additional £53,000 for the Trust Fund", and that they would spend up to £80,000 in the purchase of a house for the pursuers' mother and them. There is no question of the letter containing any final commitment on the trustees part to sell the salmon fishings for £53,000 nor any commitment to buy a house for the pursuers. Even if it had, it would not, in my opinion, have been open to the pursuers to seek that the shortfall of £33,000 be paid to them. They are contingent beneficiaries of a fund which has not yet vested in any of them and may never vest in any two of them. Thus, any claim in respect of the shortfall would require to be in the form of an action of accounting with a view to having such a shortfall restored to the trust. In all these circumstances, the pursuers' averments in support of the third conclusion are quite irrelevant.

Conclusion for payment by the second defender of £140,000:

34. This conclusion is based on allegations that the second defender "hijacked" moveable property belonging to the pursuers. The circumstances averred are, briefly, that on 7 December 1994, the pursuers sent a large number of items to Scotland from Italy by means of a carrier to whom they gave instructions to deliver them to Brodie Castle, that the second defender advised the carrier that the goods would not be accepted at Brodie Castle and that the carrier accordingly halted the transfer of the items and placed them into storage. The pursuers aver that they were unaware that the items had been stopped and placed into storage until they contacted the carrier in January 1995. They go on to aver that they could not afford storage, had no alternative location to put the items, were thus unable to retake possession of them and so the carrier subsequently destroyed them, apart from a "datura" tree containing ashes from the body of the pursuers' grandmother. It is averred that the tree was in fact sent to Brodie Castle and cared for by the gardeners there and in one of the second defender's west coast properties, where it died. It is averred that the items were worth £140,000.
35. Counsel for the second defender's submissions in respect of this part of the pursuers' case were prefaced by the observation that if a person had £140,000 worth of property in storage it beggared belief that steps would not be taken either to get it out of store or to sell it, which, in the circumstances did seem to be fair comment. His primary submission was that even if the pursuer had a relevant claim for loss of the value of these items, it had prescribed. More than five years had passed between the latest date for the running of the quinquennium [January 1995] and the raising of the present action. Further, the pursuers sought payment of damages to themselves jointly but did not aver that all the items of property were owned jointly, it was impossible to tell from the pleadings and the productions what all the items of property were albeit that some were specified in the carrier's inventory that did not appear to be of any significant value, their averments were not of any entitlement to store the items at Brodie Castle nor were they in fact to the effect that the second defender had wrongfully intercepted the items. Their averments were simply that the second defender had communicated to the carrier that the items would not be accepted at Brodie Castle for storage. That was not a wrongful action on their part. The second defender did not, on the pursuers' averments, cause them to suffer the loss that they alleged. That loss was caused by their own decision to leave their property in the hands of the carrier and/or their impecuniosity.
36. The pursuers' claim in respect of the loss of the items of property sent to Scotland from Italy on 7 December 1994 is wholly irrelevant . It may also have prescribed although, on these averments, that cannot be ascertained as the pursuers do not say when it was that the carrier destroyed their belongings. However, without considering the plea of prescription it is quite clear that the pursuers do not relevantly aver a case to support their claim for damages for the value of the lost items of property. The suggestion that the second defender was responsible for the loss in circumstances where the Trust's only action in respect of the property was to indicate that they would not receive it into their property for storage is untenable. The second defender did not, on the pursuers' averments, have any obligation to accept that the items be stored in their property at Brodie Castle nor, in any event, in the circumstances averred, any reason to anticipate that their refusal to store the items would result in the loss of their value to the pursuers. Further, the pursuers have not addressed the question of which items belonged to each of them and it was clear from their submissions that they were not in fact suggesting that all the property was jointly owned. Nor do they begin to afford fair notice by way of adequate specification of what the items were or on what the valuation of £140,000 was based. For all these reasons, the pursuers claim for damages of £140,000 falls to be dismissed also.

Conclusions for removal of the third and fourth defender as trustees and for the appointment of new trustees:

37. Counsel for the third and fourth defenders submitted that the action was incompetent insofar as it sought, in a summons, to remove the trustees of the Settlement Trust and appoint new trustees in respect that at common law, removal of trustees required to be sought by petition to the nobile officium in the Outer House and that removal under the Trusts [Scotland] Act 1921 s.23 required also to be by petition in the Outer House. Reference was made to Rule of Court 14.2(c). Also, he submitted that, in any event, the averments in support of the case for removal of the third and fourth defender as trustees and appointment of new trustees was irrelevant in respect that they did not amount to an allegation of malversation of office and he made reference to the following cases: Gilchrist's Trs & ors v Dick 1884 11R 22 ; Wrighton v Cook 1908 1Ch 789; MacGilchrist's Trustees v MacGilchrist 1930 SC 635. Further, the pursuers were seeking appointment of three un-named trustees of their choice. The pursuers were not vested with power to appoint trustees. They were, accordingly, seeking an incompetent order.
38. The pursuers responded firstly by referring to Rule of Court 13.1 and submitting that since it provided that "Subject to any other provision in these Rules, all causes originating in the court shall be commenced in the Outer House by summons", it must be possible to seek removal of trustees in a summons. Their attention was drawn to the provisions of Rule of Court 14 but the response was that because it was provided that that rule was subject to any other provision in the Rules, that meant that removal of trustees could be achieved in an action commenced by summons. Clearly, the pursuers had not appreciated the distinction to be drawn between a "cause" as provided for by Rule of Court 13 and an "application to the court" as provided for by Rule of Court 14. There can be no doubt, in my view, that an application to the court to have trustees removed or appointed must, according to the Rules of Court, be presented by way of petition and for that reason, I agree that these conclusions are incompetent. I also agree, however, that the pursuers do not, in any event, aver a relevant case for removal of trustees. Their response was to the effect that they believed it to be true that the third defender had benefited from the agreement with the second defender concerning his occupancy of the castle and that he had benefited from the sale of the contents. Further, they submitted that there was a loss to the Settlement Trust of the value of the sawmill since the second defender did not have to pay rent for the use of it.
39. As I have already explained, I do not consider that the pursuers have averred a relevant case of breach of trust in respect of these matters. Even less do I consider that they have averred a case that could properly be construed as being one of malversation of office. I agree with counsel for the third and fourth defenders that in the absence of such averments, there can be no case for having the court take the extreme step of removing the trustees of a private trust. It follows that the conclusion for appointment of new trustees is not supported by relevant averments either and I agree that it would not be open to the court to pronounce an order which left the nomination of trustees to the pursuers.
40. Counsel for the third to sixth defenders made two other submissions which fall to be considered. The first was that the action was incompetent because it involved the direction of separate conclusions against separate defenders based on independent grounds of debt within a single action. Reference was made, in support of that submission, to the cases of Western Bank v Douglas 1860 22D 447 and Treadwells Drifters Inc. v RCL Ltd 1996 SLT 1048 and to McLaren: Court of Session Practice at p.338. The second was that the action was incompetent since the pursuers had failed to intimate it to their father who, as liferenter of the Settlement Trust, clearly had an interest in it. In support of that submission, reference was made to the case of Allen v McCombie's Trs 1909 SC 710. The pursuers' response was that all the matters raised were connected and it was not possible to separate them. Further, they had no wish to involve their father as they did not consider that he was an interested party. They did not want to "take an action" with him as they had fallen out with him. They did not want to be involved with him and could certainly not accept him as a co-pursuer. Given the views that I have already expressed, it is unnecessary for me to respond specifically to these submissions. However, it does appear to me that, applying the principles as set out in Western Bank Liquidators v Douglas and in McLaren's Court of Session Practice, this is an action which seeks to combine too many remedies against different defenders or combinations of them for it to be capable of competent pursuit. Consideration of the fourth conclusion alone confirms that. It stands alone as concerning a particular series of events that are quite separate from the issues raised regarding the sale of the castle and concern a grievance that the pursuers have only in respect of one of the six defenders in this action. It cannot be appropriate, in my view, that it be pursued within the ambit of this action as pled. Further, I agree that there should have been intimation to the pursuers' father. He is currently in receipt of income from the trust and thus has a clear interest in its affairs, particularly where they concern the nature of the assets held by the trust in the future and a claim which, if successful, would have resulted in, in effect, the forced reinvestment of trust funds into heritable property of which it had divested itself over twenty years ago.
41. Other submissions were made on behalf of the defenders regarding the relevancy of various of the averments that the pursuers make in their pleadings. There is, for instance, a chapter of averments regarding their grievances over the way that their mother was treated by the trustees, there are averments concerning shooting rights that the third defender has the use of, there are averments regarding their father's ignorance of and opposition to the sale of the castle, there are averments regarding the fact that the fifth and sixth defenders continued to act as lawyers and consultants to the Settlement Trust and there are averments regarding negotiations at the time of sale between the second and third defenders and other family members. Much of the criticism appeared to be well founded as it is not readily apparent how these averments have any bearing on the issues that arise from the orders sought in the conclusions and if there were the essentials of a relevant case on record, a large number of averments would fall to be deleted. I do not, however, propose to deal with the specific deletions since, in all the circumstances, I am satisfied that the action falls to be dismissed. I will accordingly, sustain the first defender's first plea in law, the second defender's first plea in law and the third to sixth defenders' first, second and third pleas in law and dismiss the action.