Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Walker v. Roberts [2003] ScotCS 254 (08 October 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/254.html
Cite as: [2003] ScotCS 254

[New search] [Help]

Walker v. Roberts [2003] ScotCS 254 (08 October 2003)

OUTER HOUSE, COURT OF SESSION

OPINION OF

R F MACDONALD, Q.C.

(Sitting as a Temporary Judge)

in the cause

BRIAN ROBERT WALKER

Pursuer

against

ELIZABETH PARKER ROBERTS

Defender

________________

Pursuer: Fitzpatrick; Wilson Terris & Co, SSC

Defender: Di Emidio; Campbell Smith, WS

23 September 2003

[1] On Tuesday 23 September 2003 the motion which the defender had enrolled for recall of the sist and the inhibition on the dependence called before me. In moving the motion, Mr Fitzpatrick, counsel for the defender, advised me that the action, which was one for count, reckoning and payment arising out of an alleged joint venture between the parties, had been raised on 7 December 2001 and sisted on the unopposed motion of the pursuer on 17 January 2002 to enable the pursuer to apply for legal aid. Four legal aid applications on behalf of the pursuer had been intimated to the defender, all of which had been refused. Three reviews of the decisions to refuse legal aid had also been refused and there was an outstanding attempt to review the last refusal of legal aid. He added that the first refusal related to an action of declarator of marriage and so was not relevant to the present action. The inhibition on the dependence had been recorded on 7 January 2002 following upon the signetting of the summons. The defender now wished the inhibition to be lifted in order to enable her to proceed with the sale of certain property. Reference was made to the decision of Lord Drummond Young in the case of Karl Construction Limited v Palisade Properties plc 2002 S.L.T.312, and in particular to paragraph 54 thereof at page 327H-I, where his Lordship set out the four requirements which must be satisfied if a right of protective attachment of immovable property during litigation is to conform to Article 1 of the First Protocol to the European Convention on Human Rights. It was submitted that the first three requirements had not been satisfied in this case.

[2] Mr Di Emidio, counsel for the pursuer, opposed the motion. He accepted that the procedural history was as outlined by Mr Fitzpatrick. He advised me that a fourth application for legal aid had been refused and that a review of that application had been before the Legal Aid Board for some months. Additional information had been provided to the Legal Aid Board by the pursuer on 15 July 2003. The application for legal aid had been supported by several notes by counsel and he found it hard to see how the Board could conclude that there was no probable cause for the action. The solicitor who had acted was of the view that there was a joint venture between the parties. Legal aid to sue him had been granted and the action against him was sisted. There was, submitted Mr Di Emidio, no fault on the part of the pursuer and the action should remain sisted in the meantime. He stated that pressure was being put on the Legal Aid Board. So far as the inhibition was concerned, Mr Di Emidio opposed its recall. He said that the total value of the heritage may be in excess of what was stated in the summons. He said that the pursuer did not oppose a partial inhibition in respect of one-half of the property. The pursuer had serious concerns that the defender would remove herself from the jurisdiction with all the funds should the inhibition be recalled. The parties had previously cohabited and had done so for a period in South Africa. The defender had contacts both there and in Europe (by which I took him to mean Continental Europe). When I pointed out to Mr Di Emidio that none of this was mentioned in the pleadings, he sought leave at the Bar to amend the summons to add averments to the effect of what he had just said.

[3] In response to the submissions made by Mr Di Emidio, Mr Fitzpatrick for the defender pointed out that the motion had been intimated three weeks previously and that there was clearly no prima facie case as legal aid had been refused on three separate occasions. The defender was now offering to "scribble something down" to comply with the requirements set out in paragraph 54 of Karl Construction Limited.

[4] Having considered the submissions of counsel, I decided to grant the motion. The action had been raised on 7 December 2001 and sisted on 17 January 2002 on the unopposed motion of the pursuer to enable him to apply for legal aid. Three applications by the pursuer for legal aid in respect of the present action had been refused. So also had two reviews of decisions to refuse legal aid. A third review was outstanding. No progress had been made in the action, which the pursuer had apparently raised without the benefit of legal aid, since 17 January 2002, a period of twenty months. In these circumstances I considered that the defender had shown considerable patience in not having asked the Court much earlier to recall the sist and I was entirely satisfied that the defender was now entitled to have the sist recalled. So far as the recall of the inhibition is concerned, I accepted the submission made by Mr Fitzpatrick for the pursuer that the grant of the inhibition in this case did not satisfy the first three requirements set out by Lord Drummond Young at paragraph 54 in the case of Karl Construction Limited. I therefore concluded that the defender was entitled to have the inhibition on the dependence recalled. I was not prepared to allow counsel for the pursuer to draft at the Bar a Minute of Amendment to introduce averments into the summons in order to comply with the requirements set out in paragraph 54 of Karl Construction Limited. My reason for not allowing him to do this was that the pursuer had been given ample notice of the motion, which had been intimated three weeks before it called in Court. If the pursuer had wished to amend the summons there had therefore been sufficient time for his counsel to draft a properly considered Minute of Amendment before the motion called in Court. No explanation was given by counsel for the pursuer for this not having been done. Having granted the motion, I awarded the expenses of the hearing against the pursuer.