Scottish Court of Session Decisions

Duff v. Merrick Homes Ltd [2003] ScotCS 76 (18 March 2003)

OUTER HOUSE, COURT OF SESSION
A1074/02	OPINION OF J GORDON REID, Q.C., SITTING AS A TEMPORARY JUDGE in the cause JAMES DUFF Pursuer; against MERRICK HOMES LIMITED Defenders:   ________________

 

 

Pursuer: Party

Defenders: Love, Reid Cooper Partnership, Glasgow

18 March 2003

Introduction

1. In this action the Pursuer ("Mr Duff") seeks (1) reduction of missives of sale of heritable property at Lochmaben, Dumfriesshire entered into in 1990, (2) the reduction of a decree of the Court of Session dated 31/1/96 in foro, following a proof, and in respect of which a reclaiming motion was refused later that year, (3) interdict to prevent the implement of the decree, (4) declarator that Mr Duff has right to the subjects of the missives, and (5) decree ordaining the defenders ("Merrick") to deliver up the Title Deeds and a Disposition of the subjects in question. The action came before me on Procedure Roll on 7 March 2003 for discussion of Merrick's general plea to the relevancy and specification of Mr Duff's pleadings. Merrick were represented by Steven A. Love, Advocate. Mr Duff, who drafted his own pleadings, represented himself. He did not challenge the relevancy or specification of the defences. He had however enrolled a motion for various orders purporting to proceed under sections 46 and 47 of the Court of Session Act which are considered at the end of this Opinion.

Submissions

2. Mr Love submitted that Mr Duff's pleadings were generally incomprehensible, irrelevant and wholly lacking in specification. Merrick's first plea-in-law, a general plea to the relevancy and specification of Mr Duff's pleadings should therefore be sustained. There was no fair notice of the case being made against Merrick or the basis upon which it was being made. He was not in a position to challenge the competency of the action because the pleadings were so difficult to understand; if the pleadings were more focused he would be in a better position to take a view on the question of competency. He informed me that there was a lengthy history of disputes between the parties as well as between Mr Duff and his Trustee following upon Mr Duff's sequestration under the Bankruptcy (Scotland) Act 1913 in 1976. It was not in dispute that Mr Duff obtained his statutory discharge in 1980 and that the Trustee did not obtain his discharge until about 1995. The dispute between the parties culminated in a proof before the Lord Ordinary, Lord Gill (as he then was). Mr Love drew my attention to many passages in Lord Gill's lengthy Opinion dated 31/1/96, which contained a detailed account of the background and history of the disputes among the parties and Mr Duff's Trustee in bankruptcy. The action is reported on the question of caution, a matter which arose in 1995 after the proof had been partly heard (1996 SLT 932), and on the reclaiming motion following proof (1997 SLT 570).
3. Mr Love illustrated his submissions by reference to numerous passages in Mr Duff's pleadings, some of which are set out at paragraph 11 below. He pointed out that Mr Duff appeared to be making allegations of blackmail and threats (Article 6 of Condescendence, page 9) and fraudulent misrepresentation (Article 9 page 13). He drew my attention to a passage in the Opinion of Lord Macfadyen in Royal Bank of Scotland plc v Holmes 1999 SLT 563 at 569k-l where his Lordship observes that averments of fraud must be specific. Mr Love also referred me to Gore Brown on Companies 44^th edition in relation to article 9 of the condescendence which inter alia complained that Merrick's Articles of Association had not been complied with as regards its borrowing powers and the funding of the payment for the land which was the subject of missives in 1990, the subsequent proof and the subject of the conclusions in the present proceedings. Mr Love submitted that an "outsider" ie a shareholder can assert his rights under the Articles of Association if he can establish that the Articles benefit him. When I raised the question of the competency of challenging a Court of Session decree in foro, and the question of res judicata and the plea of "competent and omitted" Mr Love referred me to Walker Civil Remedies pp 173-180, and to Maxwell, The Practice of the Court of Session p583.
4. When Mr Duff addressed me, I regret to say that I had great difficulty in understanding the points which he was attempting to make. He was unable to identify the parts in the pleadings which contained the essentials of his case whatever that case might be. He referred me to numerous letters and statements which he had previously lodged in an Inventory of Productions. Many of these related to the administration of his estate by his Trustee in bankruptcy. His reference to these documents did not, while the debate was proceeding, assist my understanding of what his case was or even what it might be if the pleadings were, as Mr Love put it, more focused. He referred me to Professor Macdonald's Conveyancing Manual, part 5 page 27, though which edition was not clear, to Lord Abernethy's Opinion dated 20/7/94 (page 12) in the earlier action at the instance of Merrick, to Grant v Peter G Gauld & Co 1985 SC 251, Mair v Rio Grande Rubber Estates Ltd 1913 SC(HL) 74 and Glebe Sugar Refining Co v Greenock Harbour Trs 1921 SC(HL) 72. He did not refer me to any

particular passages in the last three cases mentioned.

5. Finally, with regard to the submissions, I should record that, although not mentioned in the pleadings, both parties were agreed that the land at Vendace Drive, being the subjects of the missives of 1990, and the earlier action before Lord Gill, and being the subject of the conclusions in the present action have been conveyed to a third party who has a registered title thereto. His Lordship's decree would thus appear to have been implemented. Mr Love pointed out in this context that while Mr Duff appears to seeks reduction of the missives and the earlier decree of implement, he does not seek reduction of the Dispositions to or by Merrick.

Discussion and Decision

The earlier action

6. In order to begin to attempt to understand Mr Duff's pleadings, it is necessary to set forth the background to and the decision in the earlier action at the instance of Merrick against Mr Duff, his Trustee in bankruptcy (who did not enter appearance), and Mr Duff's solicitor. The action was raised by Merrick, an off-the-shelf company, for implement (failing which damages) of missives dated 30/1/90 entered into by Merrick and Mr Duff for purchase by Merrick of land at what came to be known as Vendace Drive, Lochmaben. One line of defence was that Mr Duff's solicitor purported to conclude missives without Mr Duff's authority; this led to the convening of Mr Duff's solicitor as third defender (see pages 1-5 of Lord Gill's Opinion dated 31/1/96). Mr Duff was a builder and began to acquire the land in question in the early 1970's with a view to developing it for housing. He constructed access roads, installed services, and built and sold a number of houses (ibid pp6-8). Mr Duff was sequestrated in 1976 and his building company was put into liquidation. His Trustee subsequently sold off part of the remaining land previously acquired by Mr Duff. Four areas of land remained unsold, described as the "Robson residual land "(consisting of three of these areas) and the "Dyer land" (ibid pp8-9). These areas of land were to become the subject of the missives to which the action related (ibid p55).
7. Mr Duff was aggrieved by the actings of his Trustee and over the years raised actions against him and complained to the Accountant of Court. He also vented various grievances against the legal system and numerous members of the legal profession. Mr Duff refused to consent to the Trustee obtaining his statutory discharge. The consequence of this, apparently, was that the Trustee would be able to sell the land at Vendace Drive at a price sufficient to "clear off" the sequestration but which might not truly reflect its development value, and thus bring the sequestration to an end (ibid p11). Mr Duff therefore sought finance to enable him to pay his remaining creditors, which would enable the sequestration to be completed, the titles to the land at Vendace Drive to be returned to him, and to enable him to proceed with the development of the land (ibid p12). By 1989 the shortfall was under £10,000. At the same time he was proposing to raise a further action against his Trustee alleging fraud in the administration of his estate (ibid pp10-14). Mr Duff proposed to a Mr Robertson and a Mr Wilkes the setting up of a development company to acquire the land. Mr Robertson was one of the Commissioners in the sequestration and had carried out work for Mr Duff in the past; Mr Wilkes was Mr Robertson's brother-in-law and a retired engineer. A company was formed and it was agreed that it should acquire the land at Vendace Drive (ibid pp14-25).
8. Missives for the purchase by Merrick from Mr Duff of the land subject to conditions involving the deposit of the purchase price with a view to it being paid over to the Trustee and various other matters concerning the Trustee in Mr Duff's sequestration were concluded on 30/1/90 (ibid pp25-35). Lord Gill held that in concluding these missives, the third defender (Mr Duff's solicitor) was acting on and within the scope of Mr Duff's instructions (ibid p37). The Trustee in the meantime had intimated that he was proposing to advertise the land in question for sale (a situation which Mr Duff was most anxious to avoid) unless Mr Duff consented to his immediate discharge (ibid pp 37-41). Sale by the Trustee could only be prevented by paying the sum of £10,000 to the Trustee and consenting to his Discharge. Mr Duff subsequently agreed to this and the £10,000 was paid by Merrick to the Trustee (ibid pp42-44). Shortly thereafter Mr Duff wrote to his solicitor (the third defender) discussing numerous points of grievance against the Trustee. The third defender withdrew from acting on behalf of Mr Duff. Mr Duff then changed his mind about agreeing to the Trustee's discharge and made various complaints about the third defender (ibid pp44-51). Thereafter, Mr Duff, in sundry correspondence, denied giving authority to his solicitor to enter into the missives (ibid pp 51-53) and accused Merrick's solicitors, and Messrs Robertson and Wilkes of conspiracy, fraud and libel and reported them to the police, and the solicitors to the Law Society; he also accused his Trustee of collusion and conspiracy in relation to his discharge. In evidence he asserted that various documents had been forged and that other witnesses were lying. The detail of these complaints is not discussed in his Lordship's Opinion (ibid pp53-56) although several pages are devoted to illustrating "the many inconsistencies, implausible explanations and absurd accusations" in Mr Duff's evidence (ibid pp57-59)
9. The action for implement was raised by Merrick in 1991 (ibid p54). His Lordship described Mr Duff's allegations against Merrick's solicitor, a Mr Hann, and Messrs Robertson, Wilkes and the Trustee as malicious allegations against honest men (ibid p 56). He described Mr Duff as a witness of no credit (ibid p57). Having rejected Mr Duff's evidence and having rejected the defence of no authority, his Lordship proceeded to consider and reject a number of submissions on the law advanced by Senior Counsel on behalf of Mr Duff (pp 60-74). His Lordship's rejection of these arguments was in large measure endorsed by the Division when a reclaiming motion against the grant of declarator and implement was refused (1997 SLT 570).

The pleadings in the present action

10. In my opinion, Mr Duff's pleadings are, as Mr Love submitted, generally incomprehensible. It is impossible to identify the crucial facts upon which the remedies he seeks are based. The real substance of the facts making up the case against Merrick cannot be identified. Where Mr Duff's pleadings mention, collusion (article 5 page 8), pressure and threats (article 3 page 5, article 6 page 9 and 10) corruption (article 5 page 8), blackmail (article 6 page 9), fraudulent scheme (article 6 page 9) a plot by the trustee and third parties of Merrick Homes Ltd (article 7 page 11), gross fraud (article 8 page 12), fraudulent misrepresentation (article 9 page 13, article 10 page 13) underhand deals (article 10 page 14) fraud practised on the court (article 10 page 14) pressure threaten and blackmail (article 16 page 20) corrupt administration, and gross fraud (article 16 page 20), fraudulent activities (article 17 page 21), fraudulent statements (article 19 page 23), gross fraud ( article 20 page 24) corrupt administration of the pursuers estates (article 24 page 29) and other allegations in a similar vein, no or no adequate specification whatsoever is given. The bulk of these vague allegations are directed against the Trustee. In my view, Mr Love was amply justified in his submission that no fair notice of the case Merrick were being asked to meet has been given in the pleadings. The pleadings disclose no agenda for proof. Mr Love suggested that some latitude may be given to Mr Duff because he had drafted the pleadings himself. I am not convinced that is correct. I am doubtful whether there should be one standard for solicitors and counsel and another for party litigants. However, even allowing Mr Duff the most generous latitude, his averments do not provide any reasonable degree of notice of the crucial facts he intends to prove and the legal basis upon which his case proceeds.
11. The following extracts from Mr Duff's pleadings may illustrate the difficulties faced by Merrick and indeed the Court. In article 2 of the Condescendence (page 4) the principal averment is this:-

"That the pursuer's heritable property had been invested in his trustee, ... at the time when the missives had been entered into by the third parties on 30^th January 1990, while his estate had been solvent. And assets which ought to have been realised under section 78 of the Bankruptcy (Scotland) Act 1913, if the alleged sum of money of £10,000 had been needed to pay final dividend of 20 pence to creditors and finalise the sequestration in January or February 1990".

In article 17, (page 21) Mr Duff avers

"The decision by the Lord Ordinary that there was consensus in the sale of subjects was argued and was known to the third parties of the defenders that consensus in idem can never be binding on either party as in Grant 1985 SC 251 and the Merrick Homes limited v Duff case had only succeeded by withholding authorities from their Lordships which might have thrown light upon the matters under debate was done to obtain a decision from their Lordships in the absence of material and information which a properly informed decision requires"

 

In article 18 (page 22), Mr Duff avers:-

"That the pursuer had no defences to the action under the bankruptcy (Scotland) act 1913 and 1985 or under the companies act 1985, which were relevant to the cause, showing that some fracture which is essential to when liability is lacking, he would have been able to satisfy the court that in law he owed no duty of care to the defender and that he was in fat (sic) negligent, or that liability was excluded by a fair and reasonable exemption clause, he could not have known that the action would not have been defended".

In article 19 (page 23) Mr Duff avers

"That the missives contract only had been achieved on an unintentional essential error being an error of expression, by one party known too (sic) and taken advantage off (sic) by the other party, put the other party in bad faith, and was wrong for which the law provided a remedy, of which the pursuer was prejudiced and denied that remedy".

12. None of the averments illustrated makes much sense either in isolation or in the context of the pleadings as a whole. The burden of the pleadings as a whole comprises an attack on the conduct of Mr Duff's Trustee in the administration of his sequestration over many years. Elsewhere, the pleadings criticise Mr Robertson, whose reliability and credibility impressed Lord Gill, and Merrick's solicitors. The high point of Mr Duff's case appears to be in articles 21 and 25 of the Condescendence where he avers that the judgement in the earlier action has been obtained by a fraud on the court. In article 21 this appears to be based upon the view that had the Trustee proceeded in a certain way, his estate would have been solvent and it would not have been necessary to raise £10,000 through the missives with Merrick. This is no basis whatsoever for reducing the missives or the decree in the earlier action and cannot on any view amount to a fraud on the court for the purposes of the present action. In article 25 the basis upon which the judgement in the earlier action was said to be a fraud on the court is well nigh impenetrable. Mr Love could not explain it. Mr Duff offered no explanation for the averments and I can find no logical link between them and an alleged fraud on the court. They are in my view, irrelevant. In the course of the Procedure Roll discussion, I asked Mr Duff if his real complaint was that Lord Gill erred and was misled by witnesses who told lies and had conspired against Mr Duff. He said this was the case and that the material was there before the Court but that it was not properly brought out (This, in large measure, echoes the allegations discussed by Lord Gill in the earlier action when reviewing Mr Duff's evidence). In other words, the nub of Mr Duff's case may be that the decree in the earlier action is unwarranted; he also added that he was complaining about the conduct of the case by his legal representatives. Such a case cannot be identified with any reasonable degree of clarity in the pleadings in the present case. Had such a case been capable of identification in the pleadings with any reasonable degree of clarity, it is likely that Merrick would have tabled pleas to the competency of such an action as well as pleas of "competent and omitted" and/or res judicata.
13. Mr Duff referred me to a number of productions which he lodged at an earlier stage in the action. Suffice it to say that these do not assist his cause. The bulk of the productions relate to the administration of his sequestration and to correspondence concerning the land at Vendace Drive. One production was the Opinion of Lord Abernethy dated 20/7/94 following a Procedure Roll discussion in the earlier action. The Opinion was concerned with the nature of Merrick's alternative claim for damages failing implement of the missives, and with the specification of the damages claimed. It, too, is of no assistance to Mr Duff in the present action.
14. Moreover, Mr Duff has failed to seek reduction of the Disposition in implement and the Disposition by Merrick to third parties who, for aught yet seen, must be assumed to have acquired in good faith and for value. Unless these Dispositions are reduced, Mr Duff's conclusions in the present action are of no avail, and the pleadings upon which they are based must be irrelevant. He also has not sought to reduce the Interlocutor of the Inner House dated 9/7/96 refusing the reclaiming motion in the earlier action.
15. In the foregoing circumstances, I am of the opinion that the action is irrelevant and falls to be dismissed. In any event, the principal allegations, leaving aside for the moment that they are for the most part directed against Mr Duff's Trustee rather than directed to explaining the basis for setting aside missives and a decree in foro of the Court of Session, are all seriously lacking in specification. In so far as they consisted of allegations of fraud or the like they do not meet the standard of pleading referred to by Lord Macfadyen in the Royal Bank case referred to above or in Mair referred to below. I respectfully adopt his Lordship's observations in that case on pleading requirements in relation to fraud. Even if one were to apply a more lenient standard because Mr Duff is a party litigant, that would not assist him because he has failed to provide any reasonable degree of specification of the case, insofar as the pleadings disclose a case at all, which Merrick have to meet.

The authorities

16. With regard to the authorities mentioned by Mr Duff, none assists him. Grant v Peter G Gauld & Co 1985 SC 251, 1985 SLT 545 concerned the question whether the description of heritable subjects in missives was sufficient to establish a binding contract. The Second Division held that, in the circumstances of that case, the description was insufficient and there was therefore no concluded contract capable of enforcement. The case is referred to by the Lord Ordinary in the earlier action at the instance of Merrick (see page 70).
17. Mair v Rio Grande Rubber Estates Ltd 1913 SC (HL) 74 concerned an action by a shareholder against a company for inter alia repayment of the price of shares which he had been induced to apply for because of false and fraudulent statements in the company's prospectus. It is of no assistance to Mr Duff. However, I note that in the course of his Speech, Lord Shaw of Dunfermline said this:-

"For the purposes of a discussion on the relevancy of a Scotch case, there are two elementary rules of procedure, namely that (1) the pursuer's averments must be taken pro veritate, and (2) they must be sufficiently specific, so as to disclose to the Defender, not the minute particulars but the real substance of the facts making up the case against him. This being done, it is open to the defender, under the short and simple plea of 'No relevant case,' to maintain that, even on the assumption that the pursuer had proved in evidence all that he has set forth, yet he would not be entitled in law to succeed. Upon that plea being sustained, the action is dismissed.

It is difficult to overestimate the value of this procedure to Scotland. Under it the scandals which sometimes appear elsewhere are avoided- of a trial taking place involving a prolonged, harassing, and most costly inquiry upon an issue which, if it had been stated to begin with in plain words, and there and then adjudicated upon, would have been settled in the same sense for a fraction of the expense and in a fraction of the time. And, in view of what one of your Lordships has observed, I deem it right to add that I think that this procedure has a special value in cases where fraud is alleged. For under the second branch of the rule persons charged with fraud know from the beginning the substance of what they have to meet, and they are not exposed to the hardships of a merely fishing or raking inquiry.

It remains, of course, true that the value of the procedure would, on the other hand, be lost if the Court made such a meticulous examination of the averments as to leave or deny the solid ground of a case because of the absence of technical formalities of expression. That does not happen in Scotland ..."

18. Here, Mr Duff has not even set forth the real substance of the facts making up the case he may be trying to make against Merrick. Moreover, what may truly be the underlying basis of the case he is trying to make is probably such that he is not entitled in law to succeed.

[19] Glebe Sugar Refining Co v Greenock Harbour Trs 1921 SC(HL) 72 was a case concerning a question of statutory construction in the course of which Lord Chancellor Birkenhead stressed the importance of bringing the authorities which bear one way or another upon the matters under debate to the attention of their Lordships (pp73-4). I suspect that Mr Duff referred to this case to bolster the argument that all the authorities had not been properly before Lord Gill or perhaps the Division. I refer to the passage in his pleadings in article 17 of the Condescendence quoted at paragraph 11 above. This is merely assertion that the decision in the earlier action was wrong in law. Such an argument is irrelevant (see paragraph 21 below).

19. I regret that I have been unable to identify the passage from Professor MacDonald's Conveyancing Manual to which Mr Duff appeared to be referring. Both the 5^th and the 6^th editions contain no such reference. Part 5 of each edition is concerned with various aspects of the sale and transfer of heritable property and begin with chapter 28. I have been unable to identify anything in this part of the textbook which assists Mr Duff in the present action.
20. Mr Duff's pleadings in articles 21 and 25 of the Condescendence mention the phrase fraud on the Court. There is no doubt that that is a ground upon which a decree granted in foro in the Court of Session may be reduced in appropriate circumstances. It is not, however, sufficient to aver merely that decree was unwarranted on the facts or on the law, or that witnesses believed by the Court were telling lies. Otherwise there might be no end to litigation (see generally Walker on Civil Remedies pp 174, 176 and 178-9). It seems to me that this is the type of case that Mr Duff is attempting to bring and is one which the law does not allow. I should add that there are no averments that the facts now apparently founded upon, insofar as they are capable of identification at all, were not known to Mr Duff at the time of the earlier action and could not with reasonable diligence have been ascertained by him or anyone acting on his behalf. Although, in the course of the debate, Mr Duff mentioned that some information was not known to him until about 1998, I can detect no basis in the pleadings for arguments based upon res noviter veniens ad notitiam (see generally Walker at pp 179-180 and Maxwell, The Practice of the Court of Session pp 583-4). Accordingly, even on the most generous analysis of Mr Duff's pleadings, his action is to say the least, of doubtful competency.
21. It is, in the circumstances, unnecessary to make any comment upon Mr Love's submission concerning the Articles of Association of Merrick.

Motion

22. Mr Duff's motion was in the following terms:-

"The pursuer moves the court to make an order in terms of section 46 and 47 of the 1988 court of session act, in the following:-

1 To allow the pursuer to continue with the sale of plot (a) Vendace Drive, Lochmaben. To Mr & Mrs C Lamb as agreed on 27 November 1991, and disposition recorded in the land register, which has never been reduced.

2 To order the Lord Advocate to arrange for a writing expert to examine the forged letters which the defender forged illegally to obtain the pursuer's land".

23. Mr Duff submitted that the motion was competent and referred me to Five Oaks Properties v Granite House 1994 SCLR 740. I accept that a motion in terms of sections 46 of the Court of Session Act 1988 is competent before proof. Five Oaks concerned the obstruction of premises. The Petitioners sought an order under section 46 for the removal of the obstruction. After Answers were lodged, the Petitioner enrolled a motion for an order under section 46. Lord Weir held that such an order could competently be granted at a stage prior to the time of the final hearing. His Lordship observed that the section is designed to help those who were unaware of the threat to their rights or who for some reason took no proceedings for interdict to have the status quo preserved. His Lordship also observed that whether such an order should be granted is a matter for determination in the light of all the circumstances. I respectfully agree with all his Lordship said.
24. It does not necessarily follow, however, that either branch of Mr Mr Duff's motion is competent. In support of the merits of the first branch motion Mr Duff referred me to Productions 6/27, 6/29, 6/30, 6/31 and 6/33 of process. Production 6/27 is a note, partly typewritten and partly in manuscript dated 30/4/87 and bearing to be by a solicitor, presumably Mr Duff's solicitor at the time. It records a site visit to what appear to be the subjects of the missives or at least part of them, and makes reference to a payment of 80p in the £ in 1984 and 1985; 6/29 is a missive of sale dated 27/11/91 adopted as holograph and signed by Mr Duff and Mr & Mrs Lamb; it appears to relate to the plot specified in the first branch of the motion. 6/30 appears to be an offer by Mr Duff dated 16/3/93 to sell to the Lambs the same plot of land. 6/31 is a typewritten note by Lorna Lamb narrating that a verbal agreement was entered into with Mr Duff to sell a plot of land at Vendace Drive/ Avenue to her and that a deposit of £800 had been paid to Mr Duff. 6/32 although not mentioned by Mr Duff is a similar note but signed by Mr Lamb and refers to plot No 1A Vendace Avenue. 6/33 is a letter dated 7/3/95 from Hann & Co, Merrick's solicitors, to Mr & Mrs Lamb's solicitors pointing out that (i) from a Search they have discovered the existence of a Disposition by Mr Duff in favour of the Lambs, (ii) when the Disposition was recorded there was already an inhibition lodged by Merrick, and (iii) Mr Duff could not give clear title to the Lambs. They requested that they obtain their clients' instructions and confirm whether any money had been paid over to Mr Duff. The letter appears to confirm that the subjects of sale to the Lambs formed part of the missives referred to in the earlier action. However, he could not explain why this particular plot should be singled out for separate treatment. If I were to be in error in dismissing the action, there are no facts and circumstances and no pleadings which would justify the granting of the first branch of the motion. Whatever may have happened to the Lambs' title, the parties are agreed that the subjects of the missives in the earlier action and which are referred to in the first conclusion in this action have been conveyed by Merrick to a third party. I do not therefore see how Mr Duff can continue with the sale of Plot (a). It is thus far too late to attempt to restore the status quo ad interim.
25. As for the second branch of the motion, if I were to be in error in dismissing the action, I would nevertheless have refused to grant this branch of the motion. Mr Duff referred me to Productions 6/13-15 of process. 6/13 appear to be copies of the same letter dated 25/1/90 from Mr Duff to Mr Roy Robson requesting him, in principle, to agree to the sale of his land to Mr Duff for residential development. This land appears to form part of the land referred to in the missives which were the subject of the earlier action and are the subject of the first conclusion in the present action. 6/15 is a copy of the same letter but below the name J Duff in typescript are the words for and on behalf of Merrick Homes Ltd. This letter is referred to in the Opinion of the Lord Ordinary in the earlier action at pages 25-26 and 27-29. As I understood him, Mr Duff appeared to be alleging that 6/15 was a forgery because the company known as Merrick Homes Ltd did not change its name to Merrick Homes Ltd until 7/2/90 and because of the addition of the words for and on behalf of Merrick Homes Ltd in letter 6/15 of process. I regret that I do not understand the relevance of that letter or its authenticity to the validity of the earlier missives or the validity of the decree granted in the earlier action. No comprehensible explanation was advanced by Mr Duff. In any event, I do not see why the Lord Advocate should become involved at this stage in issues relating to the possible reduction of a court decree and missives between private parties. I can see no basis upon which the second branch motion could possibly have been granted. It seems to me that this branch of the motion is incompetent.

Summary

1 Mr Duff's pleadings are generally incomprehensible. They are irrelevant and wholly lacking in specification because they fail to give notice of the case Merrick have to meet with any reasonable degree of clarity.

2 At best, Mr Duff may be alleging that the decision in the earlier action was unwarranted on the facts and that the Lord Ordinary erred in law. Such an action if expressed with any reasonable degree of clarity would probably be incompetent.

3 The motion falls with the dismissal of the action.

4 In any event, if I am wrong to dismiss the action, there are no facts or circumstances justifying the granting of either branch of the motion. The second branch of the motion is incompetent.

5 Merrick's first plea-in-law will therefore be sustained and the action dismissed.

6 All questions of expenses are reserved.