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Sutherland v. Campbell [2003] ScotCS 166 (05 June 2003)
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OUTER HOUSE, COURT OF SESSION |
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P82/91
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OPINION OF LORD MACKAY OF DRUMADOON in the Petition of CHARLOTTE LISTON SUTHERLAND Petitioner; against PETER JAMES CAMPBELL Respondent: for Suspension and Interdict ________________ |
Petitioner: Party
Respondent: Webster; Morton Fraser
Commissioners for Inland Revenue: Bartos; Solicitor of Inland Revenue
5 June 2003
Introduction
[1] This petition, at the instance of Charlotte Liston Sutherland, came before me for a hearing on 23 April 2003. The hearing lasted three days. During the hearing the petitioner appeared on her own behalf. Counsel appeared on behalf of Peter James Campbell, Chartered Accountant, ("the respondent"). When the petition was first lodged, the respondent was called as the only respondent to the petition. He was called in his capacity as permanent trustee on the sequestrated estate of the petitioner, having been appointed as such by an interlocutor pronounced in the Court of Session on 9 March 1989, under the provisions of section 12(3) of the Bankruptcy (Scotland) Act 1985 ("the 1985 Act"). When the petition was lodged on 16 August 1991, the petitioner also sought an order for service of the petition on the Lord Advocate, for and on behalf of the Commissioners for Inland Revenue, and on the Accountant in Bankruptcy. The Commissioners are now represented in the proceedings by the Advocate General, on whose behalf counsel appeared. [2] When the petition was first lodged, Article 1 of the petition contained the following sentence:"A Summons for Reduction of the Decree of Sequestration hereinafter mentioned has been raised before this Court and the present Petition for Suspension and Interdict is raised in order to preserve the parties' respective positions until the outcome of said Action of Reduction."
That sentence remains part of the petitioner's pleadings. The petition, as lodged, went on to narrate that reduction of the decree of sequestration dated 9 March 1989 was being sought, on the ground that it had not been competent for the Lord Ordinary to grant the decree of sequestration pronounced on that date. When the petition was first lodged, the prayer of the petition sought
"to suspend said Decree and to interdict, prohibit and discharge the Respondents (sic) and all others acting on their (sic) authority from taking any further steps or proceedings in said purported sequestration until the conclusion of the said action of Reduction; and meantime to grant interdict ad interim and to suspend the said proceedings ad interim".
"20th August 1991 Lord MacLean
Act: Howie
The Vacation Judge appoints the Petition to be intimated on the Walls and in the Minute Book in common form and to be served upon the Lord Advocate for and on behalf of the Commissioners for Inland Revenue, Crown Office, 5/7 Regent Road, Edinburgh, Peter James Campbell, Chartered Accountant, 38 Albyn Place, Aberdeen and the Accountant in Bankruptcy, Meldrum House, 15 Drumsheugh Gardens, Edinburgh, EH3 7QY in common form and ordains any persons claiming an interest to lodge Answers to the Petition, if so advised, within twenty one days of such service and intimation, meantime, having heard counsel for the Petitioner and no caveat having been lodged, interdicts the respondent ad interim and all others acting on their (sic) authority from taking any further steps or proceedings in the purported sequestration of the Petition until the conclusion of the Action of Reduction to be raised by the Petitioner against the Lord Advocate; suspends ad interim the decree of sequestration of 9th March 1989 and the proceedings in the said purported sequestration."
Petition seeking sequestration of the petitioner's estate
[4] Before I detail what has happened in the present petition, since the interlocutor of 20 August 2001 was pronounced, I should summarise other parts of the relevant factual history. On 31 January 1989 a petition at the instance of the Lord Advocate, for and on behalf of the Commissioners for Inland Revenue, was lodged in this Court. The petition sought the sequestration of the petitioner. On 31 January 1989, Lord Prosser pronounced a First Order in that petition. That First Order was in the following terms:"31st January 1989 Lord Prosser
The Lord Ordinary Appoints the Petition to be intimated on the Walls and in the Minute Book in common form; Grants Warrant to cite the said Miss Charlotte Liston Sutherland, residing at Norden, 2 Hillhead Road, Newtonhill, Kincardineshire, as an individual and as a partner of the now dissolved firm of Grampian Medical and Industrial (Wholesale) Suppliers by serving upon her a copy of the Petition and this Interlocutor and Appoints the said Charlotte Liston Sutherland, if so advised, to appear within the Court of Session, 2 Parliament Square, Edinburgh, on the 16th day of February 1989 at 10 o'clock forenoon, being a date not less than six nor more than fourteen days after the date of citation, to show cause why sequestration should not be awarded. Directs the Clerk of Court forthwith to send a certified copy of this Interlocutor to the Accountant in Bankruptcy and to the Keeper of the Register of Inhibitions and Adjudications for recording in that Register."
It is a matter of admission between the parties that, in terms of section 14(1) of the 1985 Act, the clerk of court sent a certified copy of Lord Prosser's interlocutor to the Keeper of the Register of Inhibitions and Adjudications for recording and to the Accountant in Bankruptcy.
[5] It is also a matter of admission amongst the parties that copies of the petition at the instance of the Lord Advocate and the interlocutor of 31 January 1989 were not served upon the petitioner, as that interlocutor had provided. In fact the Lord Advocate took no steps to effect any citation on the petitioner, appointing her to appear in this Court on 16 February 1989. It would appear that was because of a concern as to the adequacy of that part of the interlocutor of 31 January 1989 which referred to the sequestration of the estate of the dissolved firm of which the petitioner had been a partner. [6] The petitioner made no appearance in this Court on16 February 1989. At the hearing that day, the Lord Advocate was represented by counsel. At the conclusion of the hearing, Lord Allanbridge pronounced an interlocutor in the following terms:"Edinburgh, 16th February 1989 Lord Allanbridge
Act: McNeill
The Lord Ordinary having heard counsel for the Petitioner, of new Grants warrant to cite the said Miss Charlotte Liston Sutherland residing at Norden, 2 Hillhead Road, Newtonhill, Kincardineshire by serving upon her a copy of the Petition and this Interlocutor; Grants warrant to cite the now dissolved firm of Grampian Medical and Industrial (Wholesale) Supplies by serving a copy of the Petition and this Interlocutor upon Charlotte Liston Sutherland and Douglas Andrew Arthur the former partners of the said dissolved firm. Appoints the said Charlotte Liston Sutherland and the dissolved firm of Grampian Medical and Industrial (Wholesale) Supplies, if so advised, to appear within the Court of Session, 2 Parliament Square, Edinburgh on the Ninth day of March 1989, at 10 o'clock forenoon being a date not less than 6 nor more than 14 days after the date of citation, to show cause why sequestration should not be awarded. Directs the Clerk of Court forthwith to send a certified copy of this Interlocutor to the Accountant in Bankruptcy and to the Keeper of the Register of Inhibitions and Adjudications for recording in that Register."
"SHERIFF COURT, Stonehaven
ACT AND WARRANT
on appointment of the trustee
Stonehaven, 11 April 1989. The Sheriff of the Sheriffdom of Grampian Highland and Islands has appointed and hereby appoints Peter James Campbell, C.A., 38 Albyn Place, Aberdeen as permanent trustee on the sequestrated estate of Miss Charlotte Liston Sutherland, Norden, 2 Hillhead Road, Newtonhill, Kincardineshire and the whole estate wherever situated of Miss Charlotte Liston Sutherland at 16 February 1989 is vested in and now belongs to Peter James Campbell as trustee for the benefit of the creditors of Miss Charlotte Liston Sutherland in terms of the Bankruptcy (Scotland) Act 1985."
It will be noted that the Act and Warrant refers to 16 February 1989 as having been the date on which the petitioner's estate was vested in the respondent.
[10] It is also a matter of agreement between the parties that on or about 14 March 1990 the Sheriff of Grampian, Highlands and Islands at Stonehaven dealt with an incidental application by the respondent, in his capacity as permanent trustee, seeking to amend the Act and Warrant so as to substitute 31 January 1989 in place of 16 February 1989, as the date of the commencement of the sequestration and the date on which the petitioner's estate had become vested in the respondent. The Sheriff refused that incidental application as incompetent.Criminal proceedings involving the petitioner
[11] Still dealing with the history of events, the next matter to mention is a criminal prosecution of the petitioner, which took place before a Sheriff and Jury, in Aberdeen Sheriff Court, between 6 January 1992 and 1 May 1992. The petitioner stood trial with Douglas Andrew Arthur, her former partner in the dissolved firm of Grampian Medical and Industrial (Wholesale) Supplies. At the conclusion of the trial the petitioner was convicted of contraventions of the 1985 Act, which it was alleged she had committed in the capacity of "a debtor whose estates had been sequestrated on 31 January 1989". [12] The petitioner appealed against her convictions. The appeal was heard by the High Court on 19 November 1992. It was refused. The Opinion of the Court refusing her appeal was delivered by Lord Justice Clerk Ross and is reported as Arthur v HMA 1993 S.C.C.R.130. During the course of that appeal it was argued on the petitioner's behalf that she had not been made bankrupt on 31 January 1989 and that accordingly the basis upon which the charges against her had been laid had been unsound. That contention was rejected by the High Court. The Opinion of the Court concludes with the following two paragraphs:"We are satisfied that the sheriff reached the correct conclusion ... and that where it has been necessary to obtain a second warrant to cite, the date of sequestration is still the date of the first warrant. In the present case the court granted warrant on 31st January 1989. Although after warrant has been granted the debtor may show cause why sequestration cannot competently be awarded or may make payment of the debt in respect of which he became apparently insolvent, this does not prevent the date of sequestration being the date upon which the court granted warrant to cite. Moreover, as the Accountant of Bankruptcy and the sheriff recognised, certain other steps are taken 'forthwith after the date of sequestration' in terms of section 14 of the Act of 1985. Copies of the order of the court are sent to the Keeper of the Register of Inhibitions and Adjudications and the Accountant in Bankruptcy. That falls to be done once the first warrant has been granted and if effect were to be given to the proposition that, where warrant to re-serve has to be obtained, the date of sequestration is the date of the subsequent warrant, there would be considerable confusion as regards recording in the Register of Inhibitions and Adjudications. Furthermore, as the sheriff observes, if sequestration was not to run until the date of the subsequent warrant, the result might be that the debtor was given an opportunity to make gratuitous alienations between the date of the first warrant and the date of the subsequent warrant.
In our opinion the words of section 12(4) of the Act of 1985 fall to be given their natural and ordinary meaning. In the present case warrant to cite was granted on 31st January 1989 and it follows that the date of sequestration is 31st January 1989, being the date upon which the court granted that warrant. There is no justification for the view that where reservice is required, the date of sequestration is to be the date of the subsequent warrant. In the course of his charge to the jury the sheriff directed the jury that where there were two warrants, the date of sequestration was the date of the first warrant, namely 31st January 1989. In our opinion that was a sound direction and there is no justification for the appellant's assertion that the sheriff was in error in so directing the jury. It follows that the appeal at the instance of the second appellant also falls to be refused."
The petitioner's action of reduction
[13] Following upon the criminal proceedings the petitioner raised an action of reduction in the Court of Session. The action was raised against the Lord Advocate , for and on behalf of the Commissioners of Inland Revenue. She sought reduction of the decree for sequestration pronounced in respect of her estates on 9 March 1989. On 14 November 1997, after debate on the Procedure Roll, the Lord Ordinary pronounced an interlocutor sustaining the defender's first plea in law and dismissing the action of reduction. The pursuer sought review of that interlocutor. Before the Inner House the petitioner argued that the sequestration of her estate was null and void because copies of the interlocutor of 16 February 1989 had not been sent to the Keeper of the Register of Inhibitions and Adjudications and the Accountant in Bankruptcy and that any sequestration of her estate ought to have dated from 16 February 1989. The Inner House rejected those arguments. The Opinion of the Court, delivered by Lord Macfadyen, states:"We agree with the conclusion of the High Court of Justiciary in Arthur v H.M. Advocate. In our opinion in the events which happened the date of the sequestration was 31 January 1989, and there was compliance with the requirements of section 14(1) by virtue of the transmission of copies of the order of that date to the Keeper and the Accountant in Bankruptcy. The validity of the sequestrations is not affected either by the fact that before sequestration was awarded there had to be a second warrant for citation, or by the fact that no copy of the order of 16 February was sent to the Keeper.
The pursuer in paragraph 1 of her Grounds of Appeal makes reference to the fact that the averments in the petition for sequestration included reference to the sequestration of her partner, Douglas Andrew Arthur, and argues that he was not validly sequestrated, and that consequently that cross-reference invalidates her sequestration. Since the reference to Mr Arthur's position was not a necessary part of the basis for sequestration of the pursuer's estate, we see no merit in that point. In any event, Mr Arthur's attempt to reduce his sequestration has failed.
In paragraph 2 of her Grounds of Appeal the pursuer seeks to rely on certain actings on the part of her trustee and the Accountant in Bankruptcy subsequent to the award of sequestration. In our opinion, Mr Woolman, Q.C. who appeared for the defender, was correct in his submission that these subsequent events could have no effect on the validity of the sequestration.
Paragraph 3 of the pursuer's Grounds of Appeal seeks to spell out of the fact that her trustee and the Accountant in Bankruptcy did not answer a petition which she brought for suspension and interdict pending the present action of reduction a concession on their part that her attack on the validity of the sequestration is well founded. There is, in our opinion, no merit in that contention."
Procedural history of the present petition
[14] Returning to the present petition, on 20 August 1991 the Lord Ordinary, Lord MacLean, pronounced the First Order to which I have referred. Subsequently, the petition was served upon the respondent, in his capacity as permanent trustee, the Lord Advocate and the Accountant in Bankruptcy. At that stage only the Lord Advocate lodged answers. He did so on behalf of the Commissioners of Inland Revenue. On 6 December 1996 these petition proceedings were sisted, on the unopposed motion of the petitioner. They remained sisted until 5 March 2003, notwithstanding the decision of the Inner House in the action of reduction, which the petitioner had raised. The Inner House's interlocutor in that action was dated 14 October 1998. [15] There is some factual dispute between the parties as to the nature, extent and legal significance of the actings of the respondent, since the interlocutor of 20 August 1991 was served on him. The petitioner avers that the permanent trustee continued to act in "the pretended sequestration" as permanent trustee on her estate. In the petitioner's pleadings she refers to Progress Reports dated 8 November 1989, 15 August 1990, 9 November 1990, 8 May 1991, 10 October 1991, 2 September 1992 and 10 December 1992, which have been lodged as productions by her. Those Reports that post-date 20 August 1991, the date of Lord MacLean's interlocutor pronouncing interim interdict and interim suspension, do not explicitly confirm that the respondent has intromitted with the petitioner's estate since that date. But it was accepted on behalf of the respondent that an issue may arise, in other proceedings, as to what, if anything, the respondent has done by way of intromitting with the petitioner's estate, since 20 August 1991. [16] In March 2003 the respondent enrolled a motion seeking to recall the sist granted on 6 December 1999. Lady Paton dealt with that motion, at a hearing on 5 March 2003. On that occasion the petitioner appeared on her own behalf, counsel appeared for the respondent and the Commissioners were not represented. On 5 March 2003 Lady Paton pronounced an interlocutor, recalling the sist granted on 6 December 1996, allowing answers for the respondent to be received late and allowing the petition and answers to be adjusted up until a hearing which she fixed for 23 April 2003. Following upon that interlocutor the petitioner, the respondent and the Commissioners all adjusted their pleadings. At the outset of the hearing before me it was agreed that the hearing should proceed on the basis of the pleadings as adjusted. Those adjustments included alterations to the prayer of the petition, which the petitioner had sought to effect by way of adjustment. Although a point as to the competency of altering the prayer of a petition by adjustment, rather than by minute of amendment, was initially raised on behalf of the Commissioners, that point was not insisted upon by counsel for the Advocate General. [17] The petition as adjusted now seeks a number of remedies. In addition to seeking suspension of the decree of sequestration dated 9 March 1989 and interdict against the respondents (sic), and all others acting on their authority from taking any further steps or proceedings in that purported sequestration until the conclusion of the action of reduction, the petition now seeks (a) dismissal of the petition at the instance of the Lord Advocate, on behalf of the Commissioners of the Inland Revenue, which was lodged on 19 January 1989 and sought the sequestration of the petitioner's estate, (b) an order re-vesting the petitioner with the residue of her estate, currently held by the respondent, as permanent trustee, and (c) an award of damages against the respondents in the sum of £48,166,364, together with interest from 5 March 2003. It is clear from the petition, as adjusted, that the claim for damages is directed against the respondent, as permanent trustee, and the Commissioners.Hearing in the present petition
[18] At the outset of the hearing it was agreed that I should be addressed in the following order, first of all by counsel for the respondent, then by counsel for the Advocate General and finally by the petitioner herself. Each party was also afforded the right to reply to the submissions that were made against them.Submissions for respondent
[19] Counsel for the respondent intimated that the respondent sought the recall of the interim suspension pronounced on 20 August 1991, because he wished to resign as permanent trustee and seek the appointment of a replacement permanent trustee by the Sheriff at Stonehaven. It was submitted that whilst it was clear from the terms of the interim interdict pronounced on 20 August 1991 that it had run its course, once the dismissal of the action of reduction had been sustained by the Inner House, the interim suspension still stood in the way of the Sheriff allowing the respondent to resign as permanent trustee. Counsel for the respondent also argued that the pleadings in support of the remedies of suspension and interdict were no longer relevant, standing the admitted outcome of the action of reduction, which the petitioner had raised. Indeed, the petitioner had incorporated into her pleadings the Opinion of the Court issued following the reclaiming motion in that action of reduction. It was argued that having regard to the terms of that Opinion, I had no alternative but to proceed on the basis that the petitioner had been competently sequestrated on 9 March 1989, with the date of sequestration having been 31 January 1989. Counsel for the respondent also argued that it was incompetent for the petitioner to add three additional remedies at this stage of the petition proceedings and that, in any event, the pursuer's pleadings in respect of each of those additional remedies were irrelevant. I was invited to sustain the second, third and fifth pleas-in-law for the respondent, refuse the prayer of the petition in its entirety and recall the interim suspension pronounced by Lord MacLean.Submissions for Commissioners of Inland Revenue
[20] Counsel for the Commissioners of Inland Revenue argued that the decree of sequestration dated 9 March 1989 was a decree in foro. He submitted that it was not competent to seek permanent suspension of a decree in foro. It was only competent to suspend such a decree on an interim basis. Reference was made to Stair IV.52.1, Erskine's Institute 4.III.20, and McCarroll v McKinstry 1923 SC 94, per Lord Hunter at p.96 and Lord President Clyde at p.98. It was argued that the petitioner's averments of mora, taciturnity and acquiescence were misconceived. Any delay on the part of the Lord Advocate or the Advocate General in seeking the recall of the interim suspension could not turn an order granting interim suspension into a competent order suspending, on a permanent basis, the decree of sequestration dated 9 March 1989. [21] It was also argued that the petitioner's pleadings seeking suspension of the decree of 9 March 1989 were irrelevant. The test of relevancy when seeking any suspension of a decree of the Court of Session was the same as the test for seeking a reduction of such a decree. The petitioner required to aver and prove that the granting of the decree involved a clear miscarriage of justice in that the decree was fundamentally null. The petitioner's pleadings did not contain any factual averments, which if established by evidence, would entitle a Judge to conclude that there had been anything in the granting of the decree of 9 March 1989 that constituted a miscarriage of justice. The part of the prayer that sought suspension of the decree of 9 March 1989 was accordingly irrelevant. Reference was made to Bain v Hugh L. S. McDonnell Ltd. 1991 SLT 691 and Ali v Ali 2001 SC 618. [22] As far as the claim for interdict was concerned, counsel submitted that it had only been intended to control the permanent trustee's actings until the conclusion of the action of reduction. That had now occurred. The grounds of challenge set forth in the action of reduction had been held to be irrelevant. The interim interdict should be recalled. [23] Turning to the three additional remedies, recently added to the prayer of the petition, counsel for the Commissioners argued that it was not competent to seek dismissal of the original petition at the instance of the Lord Advocate in the context of the present petition. The original petition could only be dismissed by an interlocutor pronounced in that process, whether at first instance or an appeal. [24] Counsel also argued that the second additional remedy was incompetent. That sought to re-vest the petitioner with the remainder of her estate. The remedy was in effect seeking to reverse the Act and Warrant, which, together with section 31(1) of the 1985 Act, had vested the petitioner's estate in the respondent, as permanent trustee. The Court of Session had no power, at common law, to re-vest that estate in the petitioner, [25] Finally, as far as the claim for damages was concerned, it was submitted that it was not competent to seek damages in an ordinary petition. Reference was made to McLaren on Court of Session Practice at page 825(1), Rules of Court 14.1.1 and 60.5 and Tomkins v Cohen 1951 S.C. 22. In any event the pleadings relating to the claim for damages were irrelevant. No averment was made of any legal wrong having been committed on the part of the Commissioners of Inland Revenue or for which the Commissioners are responsible. All the petitioner had averred was that negligent and malicious actings of an unspecified nature had caused severe prejudice to her. Furthermore, there were no specific averments of damages, merely a broad incorporation of a variety of documentation, which could not supplement inadequate specification in the petitioner's averments. I was invited to sustain the first and second pleas in law on behalf of the Commissioner.Submissions for petitioner
[26] In responding to those submissions the petitioner founded her submissions on the contention that Lord Allanbridge's interlocutor of 16 February 1989 had not been a re-service warrant but a warrant of new. She explained that what she meant by the term "re-service warrant" was one which was in identical terms to an earlier warrant, apart from the window frame for the date of citation and the date of compearance and the addition of the words "of new". Lord Allanbridge's interlocutor had constituted a warrant of new. That was because the terms of the interlocutor refer to service of a copy of the petition and the interlocutor of 16 February 1989 not only upon the petitioner herself, but upon the petitioner and Douglas Andrew Arthur as the former partners of the dissolved firm of Grampian Medical and Industrial (Wholesale) Supplies. She submitted that because Lord Allanbridge's interlocutor of 16 February 1989 fell to be considered as being a warrant of new, the decree of sequestration dated 9 March 1989 was invalid and she had not been validly sequestrated with effect from 31 January 1989. [27] In advancing her submissions, the petitioner referred extensively to the Opinion of the Court in her action of reduction. She failed, however, to provide any clear explanation as to the respects in which the issues of (a) whether she was validly sequestrated and (b) if so, what had been the date of sequestration, had not been fully dealt with during the course of the Inner House hearing. At one stage in her submissions, the petitioner contended that the Inner House had not reduced anything, because by the time they had come to consider the matter there had been nothing left to reduce. That was so because of the terms of the interlocutor pronounced by Lord MacLean on 20 August 1991. She explained that the main purpose of her action of reduction had been to get her conviction quashed and that she continued to dispute that she had ever been validly sequestrated. She acknowledged that her claim for damages against both the respondent and the Commissioners proceeds upon the basis that she was never validly sequestrated.Decision
[28] I shall deal with the various remedies sought individually. In my opinion, the argument that seeking a permanent suspension of a decree of sequestration would be incompetent, because such a decree is a decree in foro, raises the important and complex issue of whether the interlocutor pronounced by Lord McCluskey was indeed a decree in foro. As in M'Carroll v McKinstry, however, the simple answer to the petitioner's submissions on the remedy of suspension appears to be that it is clear from the petitioner's pleadings that when the petition was first raised that remedy was sought, not for the purpose of reviewing, let alone reducing the decree of sequestration, but for the purpose of preventing the decree of sequestration having effect, whilst its validity or otherwise was determined in a separate action of reduction, which the petitioner had already raised. In my opinion, on a fair reading of the petitioner's pleadings, that remains the position. In this circumstances, I accept the submission on behalf of the Commissioners, that it would not be competent for the Court to pronounce an order in the present petition which had the effect of suspending, on a permanent basis, the decree of sequestration granted on 9 March 1989. [29] In any event, even if the petitioner's pleadings relating to suspension could competently result in the Court pronouncing an order that has the effect of permanently suspending the decree of sequestration from having any legal effect, the test as to the relevancy of such a claim would be the same as that which would apply in an action of reduction of the decree of sequestration. [30] The grounds on which the petitioner claims that she is entitled to suspension of the decree of sequestration were all discussed before and addressed by the Inner House, when the Inner House heard the reclaiming motion in the petitioner's action of reduction. The Inner House's views on the issues of relevancy are binding on me. The Inner House agreed with the Lord Ordinary that any challenge to the decree of sequestration based on the terms of the interlocutor of Lord Allanbridge, dated 16 February 1989, and the failure to intimate copies of that interlocutor to the Keeper of the Register of Inhibition and Adjudications and the Accountant in Bankruptcy was irrelevant. In these circumstances I intend to sustain the pleas-in-law on behalf of the Commissioners and the permanent trustee in relation to the remedy of suspension as the petitioner seeks to pursue it. For the avoidance of any doubt, I also intend to recall the interim suspension included in Lord MacLean's interlocutor of 20 August 1991. [31] Having reached those conclusions, it is unnecessary to for me to express any concluded view on the submissions advanced on behalf of the Commissioners to the effect that the decree of sequestration dated March 1989 was a decree in foro and that, as such, the decree is not susceptible to being suspended by the Court on a permanent basis. [32] Turning to the remedy of interdict, the matter is now academic. The claim for interdict, as currently drafted, only seeks interdict pending the outcome of the action of reduction. That action of reduction has run its course. It has been dismissed. In my opinion the interim interdict has already run its course and expired. No legal basis is pled which would warrant the granting of a permanent interdict. In my opinion, both the respondent and the Commissioners are entitled to have this matter clarified. In my opinion no question arises of the respondent, or the Commissioners, being barred from seeking the recall of the interim interdict. I propose to recall the interim interdict. I am not prepared to pronounce any permanent interdict. [33] I deal next with the three additional remedies, which the petitioner has recently added to her pleadings. The first of these additional remedies seeks dismissal of the original petition at the instance of the Lord Advocate for and on behalf of the Commissioners of Inland Revenue. In my opinion it would not be competent for a Lord Ordinary in the present process to deal with the dismissal of another petition. The petition at the instance of the Lord Advocate was raised under the statutory provisions of the 1985 Act. As such it fell to be dealt with by the Court, in accordance with the provisions of the 1985 Act and the relevant Rules of Court. If it was ever competent for the petitioner to seek dismissal of the petition of the Lord Advocate, an issue on which I express no concluded view, such a remedy fell to be pursued within the process relating to that petition, rather than within the process of the present petition, which is a petition at common law. [34] The second of the additional remedies advanced by the petitioner seeks to re-vest the petitioner with the residue of her estate as currently held by the respondent. In my view that remedy is also incompetent, in the context of the present petition. Had the petitioner's action of reduction been successful and brought about the reduction of the decree of sequestration, that action would have had, as an ancillary consequence, the petitioner being re-vested in her estate. As long as the decree of sequestration remains in existence, however, it would not, in my opinion, be competent for this Court to pronounce an order in the present proceedings re-vesting the petitioner in her estate, which has been vested in the respondent, by virtue of his appointment in terms of the 1985 Act as her permanent trustee. [35] Finally there is the claim for damages against the respondent and the Commissioners. In my opinion this claim for damages is entirely irrelevant. No proper legal basis is pled for seeking damages against either the permanent trustee or the Commissioners of Inland Revenue. From a consideration of the petitioner's pleadings, it is arguable that the claim for damages is only based on the most general of averments that "negligent and malicious actions ... have caused severe prejudice to the petitioner." But even if the petitioner's pleadings fall to be construed as requiring that assertion to be linked with the petitioner's claims that decree of sequestration should never had been granted, that the petitioner's sequestration has been a pretended one and that the respondent reported the petitioner to the Lord Advocate, giving rise to the criminal investigation into and prosecution of her, that does not, in my opinion assist the petitioner and constitute a relevant pled case for recovering damages from either or both of the respondent and the Commissioners. In my opinion, those averments are merely variations of the petitioner's basic assertion that a valid decree of sequestration of estate was never granted. [36] For the reasons I have already explained, I do not consider that any legal basis for the claim for damages has been relevantly pled. In my opinion, the validity of the sequestration having been upheld by the Inner House, that provides a complete answer to the claim for damages. Moreover, the petitioner's pleadings do not contain any plea in law, which could be construed as containing a legal basis entitling the petitioner to recover damages from either or both of the respondent and the Commissioners. In any event the averments of damages are completely irrelevant. All they do is to seek to incorporate into the pleadings the terms of nine Schedules, which contain a variety of factual assertions, legal arguments and tabulated calculations relating to losses allegedly suffered by both the petitioner and Douglas Andrew Arthur. [37] As far as the claim for damages is concerned, there is one further point I should stress. I have previously noted that there is a dispute between the petitioner and the respondent, about the actings of the respondent as permanent trustee, following upon the Lord Ordinary's interlocutor of 20 August 1991 granting interim interdict and interim suspension. It is important to note, however, that the damages claimed in the Schedules of Damages, lodged by the petitioner, are not specifically related to anything that has happened since 20 August 1991 in possible contravention of the terms of the Lord Ordinary's interlocutor of that date. Rather it is claimed that all the damages flow from what has happened since the Lord Advocate sought the sequestration of the petitioner and the respondent's actings and intromissions with petitioner's estate, since 9 March 1989, initially as the interim trustree and then, from 16 March 1989, as the permanent trustee. Those assertions, linked with the claims that decree of sequestration should never had been granted, that the petitioner's sequestration has been a pretended one, that the respondent reported the petitioner to the Lord Advocate, giving rise to the criminal investigation into and prosecution of her, are averred as forming the factual and legal basis for recovering damages from both the respondent and the Commissioners.Conclusion
[38] For these reasons, I shall sustain the first and second pleas in law on behalf of the respondent, sustain the second, fourth and fifth pleas in law on behalf of the Commissioners, repel the second, third, fifth, sixth, seventh, eighth, ninth and tenth pleas in law for the petitioner and refuse the prayer of the petition. For the avoidance of any doubt I shall also recall the interim suspension and interim interdict pronounced by Lord MacLean on 20 August 1991.