Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
A1848/01	OPINION OF LORD MACFADYEN in the cause ROBERT BAIN, (A.P.) Pursuer; against ANDREW BAIN, (A.P.) AND OTHERS Defenders:   ________________

Pursuer: Ms. Coutts; Balfour & Manson, (for Hughes Dowdall)

Defenders: Gallagher; A & W. M. Urquhart, (for R. A. Logan & Co)

8 October 2002

Introduction

1. This action is the most recent of a number of litigations which have taken place between the pursuer and the first defender concerning heritable subjects at 57 Main Street, Dreghorn, Ayrshire ("the subjects"). The pursuer and the first defender are father and son. The second and third defenders are the heirs of the former uninfeft proprietor of the subjects, Robert McMurtrie ("the deceased"). They have not entered the process. As the pleadings stood as at 26 September 2002, the pursuer concluded for (1) payment by the defenders jointly and severally to the pursuer of the sum of £50,000 and (2) interdict against the first defender or anyone on his behalf from evicting or taking steps to secure the eviction of the pursuer from the subjects. The monetary claim proceeded on the ground that, the pursuer having incurred expenditure on the subjects and the defenders being lucrati as a result, the pursuer is entitled to be reimbursed (see the first plea-in-law for the pursuer). It is implicit in that claim that the pursuer is not the heritable proprietor of the subjects.
2. On 22 June 2001, Lord Dawson, having heard a debate on the procedure roll, repelled the pursuer's second and third pleas-in-law (in support of the conclusion for interdict) and quoad ultra allowed a proof before answer. A reclaiming motion was marked against that interlocutor by the pursuer, but was refused of consent on 1 November 2001. A diet of proof was then fixed for 2 July 2002, but it appears that that diet was discharged administratively (i.e. otherwise than by interlocutor of the court) and a fresh diet was fixed for 8 October 2002.
3. On 24 September 2002 the pursuer tendered a Minute of Amendment (No. 41 of process). A motion was enrolled to allow the Minute of Amendment to be received, and to discharge the diet of proof. That motion came before me on 26 September 2002. I refused the motion. On 8 October 2002 the diet of proof called before Lord Abernethy. At that stage a motion was made at the bar on the pursuer's behalf to sist the cause. That motion was refused in hoc statu. A further motion was made at the bar for leave to reclaim against my interlocutor of 26 September. Lord Abernethy remitted that motion to me. Later the same day, I heard counsel for the parties on that motion, and granted leave to reclaim. Thereafter the case called again before Lord Abernethy, and on the pursuer's motion he discharged the diet of proof.

The proposed amendment

4. By the Minute of Amendment, No. 41 of process, the pursuer proposes to introduce into his pleadings three new conclusions seeking (1) reduction of the missives by which the deceased agreed to convey the subjects to the first defender, (2) reduction of a decree of implement of the missives granted by Lord Brand on 20 October 1976 in favour of the first defender against the second and third defenders, and (3) reduction of a disposition of the subjects in favour of the first defender, signed by the Deputy Principal Clerk of Session in accordance with authority granted to him by the court in pursuance of the decree of implement, and recorded on 22 May 1996. The Minute of Amendment also contains averments and pleas-in-law in support of those conclusions.

The competing contentions as to title

5. It is not, I think, disputed that the pursuer has, since 1948 been in de facto possession of the subjects. He presently claims to be entitled to possession as heritable creditor on the basis of a decree of maills and duties granted by the Sheriff at Kilmarnock on 4 June 1948. The first defender has, however, raised a summary cause in Kilmarnock Sheriff Court for recovery of possession of the subjects. That action is currently sisted. Prior to the recording of the disposition in the first defender's favour in 1996, the last infeft proprietor of the subjects was the late John McMurtrie, who died in 1941. He bequeathed his estate to his widow. She died intestate in 1951. Her son, the deceased, succeeded to her estate, and in turn died intestate and without having made up title to the subjects in 1971. The deceased entered into missives to convey the subjects to the first defender in 1970. Decree of implement of those missives was granted by Lord Brand in 1976. The second and third defenders did not grant a disposition in implement of the missives. Eventually, the Deputy Principal Clerk was authorised to execute a disposition, and it was that disposition that was recorded on 22 May 1996.
6. In 1985 the pursuer raised an action against the present defenders for reduction of the 1970 missives and Lord Brand's decree of implement. On 12 October 1988 Lord Morison dismissed that action on the ground that the pursuer had no title to sue for such reduction.
7. In 1986 the second and third defenders disponed the subjects to the pursuer. That disposition was, however, reduced by Lord MacLean on 7 January 1994 on the ground that, standing the 1970 missives in favour of the first defender, it had not been granted in good faith.
8. That greatly abbreviated account of the history of the matter may be sufficient to set in context the motion which I heard on 26 September 2002.

The motion to amend

9. The submission made to me on 26 September was that in order to enable the real question in controversy between the parties to be resolved, the Minute of Amendment should be allowed to be received and answered. In view of the proximity of the diet of proof, and the fact that the scope of the proof did not properly encompass the real question in issue, the diet of proof should be discharged. It was explained (by Mr Carruthers, who appeared for the pursuer on that occasion, but had not himself been responsible for framing the Minute of Amendment) that the reason for the presentation of the Minute of Amendment at such a late stage was that new counsel had been instructed on the pursuer's behalf and had taken a different view of the true issue in the case. Mr Carruthers acknowledged that the Minute of Amendment might with advantage have sought to introduce a declaratory conclusion, and that further specification of the averments in support of the conclusions for reduction might be required.
10. Mr Gallagher, who appeared for the first defender, submitted that the pursuer's motions should be refused. They came too late. If they were granted, serious delay, possibly of the order of two years, would be occasioned. The Minute of Amendment sought to raise issues that had already been litigated. Mr Gallagher further pointed out that when the present action was raised in 1996 it included a conclusion for reduction of Lord Brand's decree of implement (albeit not of the disposition which had, by then, followed thereon). He informed me that the pursuer had later tendered a Minute of Amendment deleting the conclusion for reduction. That Minute was answered, and on 23 April 1998 amendment had been allowed of consent. Thereafter the action had proceeded on the basis that the only issues were the claim for recompense (which Lord Dawson subsequently remitted to proof before answer) and the conclusion for interdict (which Lord Dawson dismissed). It was in these circumstances inappropriate to allow the pursuer at this stage to amend to reintroduce an attack on the validity of the first defender's title. There was, at the hearing of the motion to amend, no detailed examination of the grounds on which (i) the original summons in this action and (ii) the Minute of Amendment respectively sought to attack the first defender's title.
11. On 26 September 2002 I refused the motion to allow the Minute of Amendment to be received and to discharge the diet of proof. Although I took into account the various submissions made to me, a principal reason for my exercising my discretion to the effect of refusing the motions was my understanding that, in seeking to introduce the conclusions for reduction of the missives, the decree of implement and the disposition that followed thereon, the pursuer was in effect seeking to resuscitate an attack on the validity of the first defender's title that had been put forward in the summons, but then deleted by amendment.

The motion for leave to reclaim

12. When the motion for leave to reclaim called before me on 8 October, the pursuer was represented by Miss Coutts, who was the counsel who had advised that the Minute of Amendment should be presented. She submitted that in reducing the 1986 disposition in the pursuer's favour, Lord MacLean had proceeded on the erroneous view that the right of an uninfeft proprietor to complete title was imprescriptable, whereas by the time of the 1970 missives, the deceased's right to complete his title had prescribed (Pettigrew v Harton 1956 SC 67; Redford v Smith, Lord Mackay of Drumadoon, 16 July 2002, unreported). Lord MacLean's decision was not res judicata for the purpose of the present action, because it was concerned with the validity of the 1986 disposition, not with the validity of the first defender's title. What the Minute of Amendment sought to do was to introduce a new case, not previously advanced, to the effect that the 1970 missives, the decree of implement and the disposition in the first defender's favour should be reduced because by the time the missives were entered into the deceased's right to complete his title had prescribed. That was a wholly different contention from the one on which the conclusion for reduction in the original summons had proceeded. That conclusion had been based on the contention that the obligation constituted by the missives had prescribed.
13. Mr Gallagher opposed the motion for leave to reclaim on the basis that such a motion could not proceed on material which had not been before the court at the time when the interlocutor which it was sought to bring under review was pronounced. It was, moreover, inappropriate to analyse too minutely the respective bases of the original conclusion for reduction and of the conclusions for reduction which the Minute of Amendment sought to introduce. In April 1998 the pursuer had withdrawn his attack on the validity of the first defender's title, and should not now be allowed to renew it, even if he sought to do so on different grounds.
14. I took the view that in the peculiar circumstances of this case it was appropriate to grant leave to reclaim. There is, in my view, force in Mr Gallagher's submission that leave to reclaim ought not to be granted simply because additional information, over and above that which was founded on in moving the motion which resulted in the interlocutor in question, and casting new light on the merits of that motion, is placed before the court at the time of the motion for leave to reclaim. It seems to me, however, that what Miss Coutts has succeeded in doing in the present case is to draw my attention to the fact that on a closer examination of the material which was before me at the time of the original motion, it is arguable that in exercising my discretion to refuse to allow the Minute of Amendment to be received, I proceeded on a misunderstanding of the import of that material. I accept that it is arguable that such a misunderstanding undermines the basis on which I exercised my discretion. I proceeded on the basis that the pursuer was seeking to reintroduce a line of argument that he had earlier abandoned. That can now be seen, without looking beyond the material which was available to me at the time, not to have been correct. The original conclusion for reduction was concerned with whether the missives had prescribed. The conclusions for reduction which the pursuer now seeks to introduce are concerned with whether the deceased's right to complete his title had prescribed before the missives were concluded. These seem to me to be quite distinct points. It would be inappropriate for me to offer any view as to whether, on reconsideration of the motion to allow the Minute of Amendment to be received, that motion should be granted. That question is not before me. I have granted leave to reclaim because I recognise that it is arguable that my exercise of discretion was flawed by a misunderstanding of the import of the material on which I relied.