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Sutherland v. Campbell [2003] ScotCS 317 (17 December 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Hamilton

Lord Kingarth

Lord McCluskey

P82/91

OPINION OF THE COURT (No.2)

delivered by LORD HAMILTON

Reclaiming Motion

In Petition of

CHARLOTTE LISTON SUTHERLAND

Petitioner and Reclaimer;

against

PETER JAMES CAMPBELL

Respondent;

_______

Act: Party

Alt: Webster, Bartos; Morton Fraser (for Respondent)

17 December 2003

[1] The background to, and certain aspects of the procedural history of, this litigation are narrated in paragraphs [1]-[6] of the Opinion of the Court dated 9 July 2003, to which we refer. By interlocutor of that date the Court extended the time for the reclaimer to lodge grounds of appeal against the Lord Ordinary's interlocutor. Thereafter the reclaimer lodged a document entitled "Grounds of Appeal" containing seven numbered paragraphs, with an appended "further submission". When the reclaimer enrolled a motion to appoint the cause to the summar roll for a hearing, the Advocate General (now representing the Commissioners of Inland Revenue) and Mr Campbell each opposed that motion. The substance of the opposition, as presented at the Bar, was that the "Grounds of Appeal" contained no grounds of appeal as required by the Rules of Court, that is, no specific propositions stating the grounds on which it was proposed to submit that the reclaiming motion should be allowed (Rule of Court 38.16(2)). After hearing counsel for each of the Advocate General and Mr Campbell and the reclaimer personally, we sustained that objection except insofar as concerned paragraph 1 of the "Grounds of Appeal". In terms of Rule of Court 38.17(2)(b) we directed that the cause be heard on the Single Bills in respect of the ground of appeal stated in that paragraph. With the agreement of parties that hearing took place the following day.

[2] At that hearing the reclaimer, again appearing in person, submitted that the reclaiming motion should be allowed, essentially on the ground that the terms of the interlocutor of 20 August 1991, the first interlocutor pronounced in this process, had certain effects in law in the events which had occurred; the effects contended for are those specified below. On that date, by that interlocutor, the Vacation Judge appointed the petition to be intimated in the usual form and to be served upon (1) the Lord Advocate for and on behalf of the Commissioners of Inland Revenue, (2) Mr Campbell and (3) the Accountant in Bankruptcy and ordained any person claiming an interest to lodge Answers to the Petition, if so advised, within twenty one days of such intimation and service. The interlocutor continued -

"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 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 and the proceedings in the said purported sequestration".

[3] Within the appointed period the Lord Advocate lodged Answers. In these Answers he admitted many of the petitioner's averments but maintained that the petitioner had suffered no prejudice; he also, in terms of his pleas-in-law, opposed the grant of the remedies sought by the petitioner. Neither Mr Campbell nor the Accountant in Bankruptcy lodged Answers within the appointed period. No further motion was made nor order pronounced in the process until December 1996 when, on the unopposed motion of the petitioner, the Lord Ordinary sisted the proceedings until the conclusion of the related action of reduction.

[4] The reclaimer submitted that the petition was truly directed against Mr Campbell alone and that, as he had not lodged Answers within the appointed period, the Vacation Judge's order suspending the decree of sequestration had, on the expiry of that period and without further order of the Court, become "perpetual" - to the effect that the decree of sequestration, and all that had followed upon it, were then for all time set aside. The Vacation Judge before pronouncing this order must, it was argued, have satisfied himself that the sequestration had been improperly obtained. It was clear, the reclaimer submitted, that the sequestration had been improperly obtained; the essential statutory formalities had been flouted and disregarded. Although three persons had been named in the schedule of service in the present petition and an order for service obtained against all three, only Mr Campbell had been designated in the petition as "respondent", he being the permanent trustee on the sequestrated estate and the person against whom the petition was directed. The fact that the Lord Advocate had lodged Answers was immaterial. The petition was properly to be regarded as having been unopposed and Rule of Court 14.9 applied. At no time prior to March 2003 had Mr Campbell sought to enter the process. By that stage the sequestration had long been set aside; Mr Campbell had no right to appear or to be heard. The reclaimer referred to Adair v Colville & Sons 1926 S.C.(H.L.) 51 and Clippens Oil Co Ltd v Edinburgh & District Water Trustees (1906) 8F 731.

[5] In our view the reclaiming motion must be refused. It is plain that the petition was presented on the basis that it was, on the face of the petitioner's averments, wrong that further steps should be taken in the sequestration proceedings pending the outcome of the intended action of reduction. On the ex parte application of the petitioner the Vacation Judge pronounced certain orders designed to protect the petitioner's position pending that outcome. The fact that the Vacation Judge was prepared to grant an interim remedy in no way imports that he was satisfied that the factual or legal basis of the petition was ultimately well-founded. These orders (for interdict and for suspension) were expressly interim orders and were pronounced without any interested party other than the petitioner being heard. At no stage, at least until the petitioner addressed the Lord Ordinary in the debate which took place in April 2003, was the Court asked to make these orders final; in the event, they were never made final. The fact that the period for lodging Answers expired without Mr Campbell having lodged Answers did not have the result that the interim orders, or either of them, became thereupon final. No authority was cited to that effect. Neither of the cases referred to by the reclaimer supports such a proposition. In particular, Clippens is concerned with the question of when an interim order ceases to have effect. It does not suggest that an interim order can automatically become final. The reclaimer's proposition is plainly inconsistent with the nature of an interim order. Moreover, Rule of Court 14.9 has no application, the petition having in fact been opposed by the Lord Advocate who lodged Answers resisting the grant of the remedies sought. But, even if no Answers had been lodged by any person, orders having final effect would not have come into existence unless and until such orders were sought from and granted by the Court.