Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Unity Trust Bank Plc v. Frost & Ors [2004] ScotCS 123 (27 April 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/123.html
Cite as: [2004] ScotCS 123

[New search] [Help]

Unity Trust Bank Plc v. Frost & Ors [2004] ScotCS 123 (27 April 2004)

OUTER HOUSE, COURT OF SESSION

A967/94

OPINION OF LADY SMITH

in the cause

UNITY TRUST BANK PLC

Pursuers;

against

MARTIN FROST and LINDA STEWART ANDERSON or FROST

Defenders:

________________

Pursuers: Nicoll; Franks Macadam Brown

First Defender's Interim Trustee: Kinroy

Second Defender: Party

27 April 2004

[1] This case was due to call for discussion on the Procedure Roll on 27 April 2004, in terms of Lord Eassie's interlocutor of 28 November 2003. It called before me on 27 April 2004. It was clear from the outset that there was no intention to seek to proceed with the diet of debate as the first defender had recently been sequestrated and , as yet, no permanent trustee in sequestration had been appointed . Sequestration had been awarded at Jedburgh Sheriff Court on 1 April 2004 and the date of sequestration in terms of section 12(4)(b)(i) of the Bankruptcy (Scotland) Act 1985 was 27 February 2004 . The Accountant in Bankruptcy had been appointed as interim trustee in terms of section 2(2)(b) of the 1985 Act and he had, in terms of section 1B(2), appointed Mr McGregor, an accountant, to act on his behalf.

[2] The pursuers were represented by counsel, Mr McGregor was represented by counsel and the second defender represented herself . She sat in court alongside counsel . The first defender was sitting behind her.

[3] The pursuers had, on 23 April, enrolled a motion for summary decree which had been intimated on 16 April. Counsel for the pursuers explained that it had been enrolled as part of their preparation for the procedure roll debate, so as to give notice to the defenders that they would, at the debate, be seeking summary decree. The pursuers accepted, however, that the debate could not proceed, given the position of the first defender's interim trustee and moved that the motion for summary decree be continued to a later date. Counsel for the pursuers also drew my attention to a set of pursuers' Answers to a Minute of Amendment, no. 104 of Process.

[4] The background to these Answers can best be explained as follows: By interlocutor dated 13 February 2004, the Supervisor of the second defender's Individual Voluntary Arrangement in England, Mr Stephen L. Conn, had been sisted as an additional defender to the action. A Minute of Amendment at his instance, which is referred to per incuriam in the interlocutor of 13 February 2004, as the second defender's Minute of Amendment, was received on that date and fourteen days were allowed for Answers. Answers to that Minute of Amendment on behalf of the pursuers were lodged.

[5] Agents for Mr Conn withdrew from acting in terms of a letter no. 108 of process. The reason for their withdrawal was, according to what I was told by the second defender at the motion roll hearing on 30 March 2004, that they had not been paid as he, the second defender had not put them in funds, as he was obliged to do, in terms of his Individual Voluntary Arrangement. Form 30.2 was served on Mr Conn and he responded in a letter which did not make entirely clear what his intentions were regarding the forthcoming diet of debate. He was, accordingly, ordained to appear personally to confirm whether he was insisting on his defence to the action by interlocutor of 30 March 2004. He failed to do so and, to date, no agents have indicated that they are acting for him. Accordingly, no motion had, as at 27 April, been made in respect of the incorporation into the pleadings of the outstanding Minute of Amendment and Answers. Counsel for the pursuers indicated that he would be seeking to have the averments contained in his Answers incorporated into the pleadings irrespective of whether or not any similar motion was made in respect of the Minute of Amendment. Again though, he recognised the difficulty presented by the position of the interim trustee and asked that his motion in respect of the Answers also be continued to a later date.

[6] Counsel for the interim trustee addressed me. He sought to remind me that, as interim trustee, Mr McGregor did not have power to actively defend a litigation in which the bankrupt was involved. He hoped to be able to move the sequestration forward to the point where the appointment of a permanent trustee could be considered since this was a case where he intended to have a creditors' meeting. However, the interim trustee was having difficulty in clarifying the extent of the first defender's estate, particularly since much of it seemed to comprise of interests in ligitations. He considered that it could be as late as 30 May 2004 before he was able to call such a meeting. He would, though, call it by that date. He asked that consideration of the outstanding pursuers' motions be continued until then.

[7] I then invited the second defender to address me . A motion had been enrolled on 23 April by, according to the Motion Sheet: "Martin Frost; Linda Frost" in the following terms :

"That due to Martin Frost's recent sequestration the action is sisted so as to allow all parties to consider this impact and to seek proper legal advice."

The second defender referred to the motion that had been enrolled and explained that she was asking for a sist as she "needed time."

[8] I refused the motion to sist the action and, as I had been invited to do, continued consideration of the pursuers' two motions to 8 June 2004. I did so recognising that no immediate progress could be made in this litigation due to the first defender's recent sequestration and the absence, as yet, of a permanent trustee in sequestration. It seemed to me, however, that there were two matters which weighed against granting the motion to sist the action. One was that this is an action which now has a ten year history, having begun its life in the Sheriff Court in Jedburgh in 1994, from where it was remitted. The need for this court to do all in its power to secure that effective progress is now made seemed to me to be obvious. The other was that by continuing rather than sisting, a definite date would be fixed at which the up to date position regarding the first defender's sequestration would require to be reported to the court. Again, the desirability of that seemed to me to be obvious , particularly in a case with such a long history.

[9] I would add that, contrary to what I understand to have been suggested by the second defender, she was given an opportunity to speak in support of her motion. She spoke briefly in the terms that I have outlined above. She did not explain what it was that she needed time for or what legal advice she proposed to take. However, it seemed to me that by allowing a continuation until 8 June, she would have some six weeks available to her to consider her position and there was nothing to suggest that that would not be sufficient for her purposes. I determined on 8 June as being the appropriate date on the basis that it was about one week later than the latest date by which the interim trustee was to hold the creditors' meeting in the hope that a clear indication could be given to the court of parties' positions in the light of the first defender's sequestration by then.