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Sutherland v. Campbell, [2003] ScotCS 213 (09 July 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Kirkwood

Lord Hamilton

Lord Cameron of Lochbroom

P82/91

OPINION OF THE COURT

delivered by LORD HAMILTON

RECLAIMING MOTION

PETITION

CHARLOTTE LISTON SUTHERLAND

Petitioner and Appellant;

against

PETER JAMES CAMPBELL

Respondent;

_______

Act: Party (Petitioner)

Alt: McCreadie; Morton Fraser (Respondent): Webster; Solicitor for Inland Revenue

9 July 2003

[1] In 1986 the Lord Advocate, for and on behalf of the Commissioners of Inland Revenue, raised an Exchequer Cause in the Court of Session against a firm and its two partners, as such partners and as individuals; one of those partners was averred to be the present petitioner. The action being undefended, the pursuer obtained, on 2 October 1986, joint and several decree against the defenders in various sums amounting in total to £162,784.18 together with certain interest and expenses. In 1988 the Lord Advocate, in the same capacity, raised a further Exchequer Cause in the Court of Session against the present petitioner. The action again being undefended, he obtained, on 22 July 1988, decree against her for various sums amounting in total to £13,152.14 with certain interest and expenses. In January 1989 the Lord Advocate, in the same capacity, presented to the Court of Session a petition for sequestration of the present petitioner's estate. The qualification as creditor upon which he relied was the aggregate of the debts constituted by the foregoing decrees. After sundry procedure the Lord Ordinary, on 9 March 1989, having heard counsel for the Lord Advocate and the present petitioner personally, pronounced an interlocutor awarding sequestration and appointing Peter James Campbell, C.A., as interim trustee. A remit was made to the Sheriff of Grampian Highlands and Islands at Stonehaven to proceed in terms of the Bankruptcy (Scotland) Act 1985.

[2] In August 1991 the petitioner instituted the present petition proceedings in which she sought and obtained an order for service upon the Lord Advocate for and on behalf of the Commissioners of Inland Revenue and upon Mr. Campbell. The petitioner narrated that in certain respects the decree awarding sequestration had been irregular and that the petitioner intended to raise an action of reduction of it. The prayer included a crave

"to suspend said decree and to interdict, prohibit and discharge the Respondents and all others acting on their authority from taking any further steps or proceedings in the said purported sequestration until the conclusion of the said Action for Reduction; and meantime to grant interdict ad interim and to suspend the said proceedings ad interim; ... ".

[3] On 20 August 1991 the Lord Ordinary, on the ex parte application of the petitioner, pronounced an interlocutor including the following terms:

"interdicts the Respondent (sic) ad interim and all others acting on their authority from taking any further steps or proceedings in the purported sequestration of the Petitioner 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 9 March 1989 in the proceedings in the said purported sequestration".

[4] An action of reduction of the decree awarding sequestration was subsequently raised by the present petitioner, the Lord Advocate, for and on behalf of the Commissioners of Inland Revenue, being called as the defender. Defences were lodged. After debate on the procedure roll the Lord Ordinary, on 14 November 1997, pronounced an interlocutor sustaining the defender's first plea in law and dismissing the action. The pursuer reclaimed against that interlocutor but on 14 October 1998 the First Division refused the reclaiming motion and adhered to the Lord Ordinary's interlocutor. That interlocutor became final.

[5] In the present proceedings Answers were lodged in September 1991 by the Lord Advocate; no answers were at that stage lodged by Mr. Campbell. The interim orders pronounced on 20 August 1991 remained in place. Following the raising of the action of reduction the present proceedings were, by interlocutor dated 6 December 1996, sisted until the conclusion of that action.

[6] Despite the final disposal of the action having taken place in 1998 or thereby no further interlocutors were pronounced in the present proceedings until 2003 when, on 5 April, the Lord Ordinary, against opposition from the petitioner, allowed Answers from Mr. Campbell to be received late. A hearing on the petition took place on 23 April and two subsequent days, at the end of which the Lord Ordinary made avizandum. On 5 June he issued an interlocutor refusing the prayer of the petition. For the avoidance of doubt he also recalled the interim orders contained in the interlocutor of 20 August 1991. The petitioner has marked a reclaiming motion against the interlocutor of 5 June. A hearing on that reclaiming motion is yet to be fixed.

[7] The petitioner then lodged a minute of amendment and enrolled a motion to allow it to be received, to allow amendment in terms of it and for certain further procedural orders. That motion was opposed by both respondents. Having heard the petitioner in person and counsel for the other parties, we refused that motion, intimating that our reasons for that disposal would be given later. That we now do.

[8] By the first paragraph of the minute of amendment the petitioner seeks to delete the whole terms of the existing prayer of the petition and to substitute for them terms which in certain respects are materially different. In particular, the passage from the existing prayer quoted earlier in this Opinion is proposed to be removed and there to be substituted a crave

"to suspend/reduce said decree and to prohibit and discharge the Respondents and all others acting on their authority from taking any further steps or proceedings in the said fraudulent sequestration; to set aside ope exceptionis the Exchequer Cause Decrees in absence dated 2 October 1986 and 22 July 1988, together with the Extracts, Warrants, Certificates and Charges thereon; ... ".

In subsequent paragraphs of the minute of amendment the petitioner proposed, among other things, (1) that there should be deleted an existing averment that the proceedings were raised to preserve the parties' respective positions until the outcome of the action of reduction and (2) that there should be inserted averments directed towards the reduction or suspension of the decree of sequestration and to the effect that the decrees upon which the petitioning creditor had relied in the petition for sequestration "should ... be set aside ope exceptionis in the present cause".

[9] The petitioner appeared before us in person. The other parties were represented by counsel. The topics raised were wide-ranging. The petitioner expressed her strong views on the injustice, as she perceived it, which she had suffered over the years. The issue before us, however, was simply whether the court should entertain amendment in the terms proposed at this stage in these proceedings.

[10] Proceedings by way of petition for suspension have a long history in the Court of Session. However, the purposes for which, at least in modern times, they can legitimately be used fall within two classes, namely, (1) temporarily to stay diligence or other proceedings (including the implementation of a judicial decree) pending resolution of a challenge to such proceedings in another process, such as in an action of reduction, and (2) in limited circumstances to review, on a substantive and permanent basis, a decree of an inferior court or a decree in absence of the Court of Session. A decree in absence cannot be reviewed by suspension if it has been implemented or acquiesced in. Proceedings for suspension are by way of petition; reduction of a decree is by way of action.

[11] The purpose for which the present petition for suspension was initiated fell within the first of these classes. That is plain from, among other features, the express terms of the averment now sought to be deleted. The interim orders in the interlocutor pronounced on 20 August 1991 were clearly sought and granted as a means of staying the sequestration proceedings pending resolution of a challenge to them by an anticipated action of reduction. It is also plain that the purpose of the proposed amendment is to translate the proceedings into a substantive challenge by review of the award of sequestration and of the decrees upon the basis of which that award was made. Leaving aside such ineptness as the confusion in the proposed amended prayer between suspension and reduction (the latter being available only by action) and the infelicity (where a direct challenge is presented) of a crave "to set aside ope exceptionis" the Exchequer Cause Decrees, it is obvious that the petitioner's proposed amendment involves a wholly radical change in the character of the proceedings. While the court has a wide discretion in relation to amendment even at a late stage, we are of opinion that it would not be in the interests of justice to allow so radical an amendment at this stage in these proceedings. We express no view on the other issues which were raised before us. They may require to be addressed in the pending reclaiming motion. But, for the foregoing reasons, we refused the petitioner's motion.