OUTER HOUSE, COURT OF SESSION |
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A1642/03
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OPINION OF LORD HARDIE in the cause JOAN PENTLAND-CLARK Pursuer; against (FIRST) JOHN H. MACFIE W.S. and (SECOND) GORDON INNES W.S. Defenders:
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Pursuer: Party
Defenders: Woolman, Q.C.; Bishops
2 July 2004
[1] On 21 May 2004 the case called before me on the motion roll in respect of the following motion enrolled by the defenders:"On behalf of the defenders in respect that the substantive issues between the parties which form the subject matter of the cause have now been resolved, to discharge the Procedure Roll Diet fixed for 4 June 2004, to assoilzie the defenders from the Conclusions of the Summons, and to find the pursuer liable to the defenders in the expenses of process as shall be taxed in respect that the action was premature, the pursuer's right of action having been assigned by her and that following resolution of that issue, there was early resolution of the substantive issues arising."
The opposition as enrolled to the motion was in the following terms:
"Agreement over Conclusions 2 & 3 of the Summons has not been reached to the satisfaction of the pursuer; the motion is premature given that a Diet ordered by Lord Carloway on 2nd March, is due to be heard on 4th June 2004; the pursuer denies that her Summons was premature, or that her rights to 'arrears and monthly allowance' were ever part of the said 'Assignation'."
"Given our arrangements you will receive payment of your arrears and reinstatement of your monthly allowance gross direct to you. On all other sums recovered we will take our percentage."
The pursuer also relied upon a hand-written document dated 11 December 2003 from Mr Frost (6/16 of process) and an undated hand-written document by Mr McNamara (6/17 of process) which has a facsimile header dated 11 December 2003.
[6] The assignation (6/15a of process) is a probative document signed by the pursuer in the presence of a witness on 6 April 2002. The terms of any prior discussions reflected in 6/15c of process or in any other document are not relevant to the construction of the assignation. Nor are subsequent assurances such as those contained in the letter from Mr Frost dated 23 April 2002 (6/15d of process). It may be that the pursuer has a justifiable grievance against Mr Frost or Mr McNamara or both of them but in respect of a third party such as the first defender, these issues are irrelevant to the effect of the assignation upon him. In my opinion the first defender was bound by the terms of the assignation once he became aware of it. In that regard, it is clear from the other productions lodged by the pursuer that, at least as late as 20 May 2003, the first defender was aware that Mr Frost and Mr McNamara were still asserting their rights as assignees. On that date they lodged Answers in the Petition for Directions on behalf of the first defender. Reference is made to 6/15g of process. [7] In terms of the assignation, the pursuer assigned to Mr McNamara and Mr Frost her "outstanding benefit and claims (past, current and future, by way of entitlement, inheritance, legitim, delict/tort, restitution, contract or promise, third party) from or against the estate of my late husband Mr James Clark (died 1985), the executors of James Clark's estate ... (j) Bennett & Robertson of Edinburgh and Mr J. H. Macfie, and any other party ...". There is no restriction in the rights assigned by the pursuer to Mr McNamara and Mr Frost. In particular there is no reservation to her of an entitlement to receive payment of the arrears and the reinstatement of her monthly allowance, despite the terms of the subsequent letter dated 23 April 2002 (6/15d of process). In my opinion the judicial factor was bound to give effect to the terms of the assignation and was precluded from making payment to the pursuer until such time as there was a formal retrocession of the assignation. Until such time the first defender would be exposing himself and the judicial factory to the risk of a claim for damages if he made any payment to the pursuer. [8] The next issue which I considered was whether there was a retrocession of the assignation prior to the commencement of the action by the pursuer. As between the pursuer and Messrs Frost and McNamara there was undoubtedly an obligation by the assignees to reassign to the pursuer her rights upon receipt of a written demand by her. It is also clear that on 20 March 2003 such a demand was served upon the assignees and that a copy of the demand and execution of service upon each of the assignees was intimated to both defenders. However, as between the first defender and the pursuer, this was not sufficient to enable the first defender to commence making payments to the pursuer, the reason being that the assignees may well dispute their obligation to reassign her rights to the pursuer or may delay in doing so. As I have already observed, the assignees were maintaining the existence of the assignation as late as 20 May 2003, despite the notice which had been served upon each of them on 20 March 2003. Until the resolution of that matter the first defender was precluded from making payment to the pursuer. [9] In relation to the holograph documents which are 6/16 and 6/17 of process, while the letter from Mr Frost may be sufficient to enable the first defender to be satisfied that Mr Frost had reassigned her rights to the pursuer as at 11 December 2003, I doubt whether the first defender could rely upon the letter from Mr McNamara as amounting to a retrocession of the assignation. However, even if that were the case, it is clear that both of these documents post-date the commencement of the action by several weeks. Counsel for the pursuer had advised me that the issue of the assignation was not resolved until February 2004. On either view, it was clear that the action of the pursuer was premature and, at the date of the commencement of the action, the pursuer had no title to raise it. [10] The final issue related to the pursuer's complaints of delay by the first defender in February and March 2004. Having regard to the fact that I had concluded that the action had been raised prematurely by the pursuer at a time when she had no title to do so, I did not consider that any delay by the first defender following the resolution of the question of the assignation to be relevant. Even if it had been, I note that the pursuer in paragraph 2 of her reclaiming motion acknowledges that the resolution of this issue occurred at court on 6 February 2004. Thereafter it is stated that she received a payment to account of £35,000 on 12 February 2004, a second payment to account of £25,480.46 on 2 March 2004 and a third payment representing interest following a hearing before Lord Carloway. While I appreciate that the pursuer may feel that there has been undue delay in the receipt by her of the payments due to her, it cannot be said that a delay of six days following the resolution of the concerns of the first defender about the assignation prior to the payment of the first instalment was unreasonable. Nor to my mind was the further delay of three weeks prior to the payment of the second instalment. In any event, had the pursuer adopted the proper course and resolved the question of the assignation of her rights prior to the commencement of any action, it seems clear from subsequent events that such an action would have been unnecessary. [11] In all the circumstances I concluded that the action insofar as it was directed against the first defender was unnecessary. Accordingly I did not consider it appropriate to follow any different course as regards expenses simply because the pursuer was a party litigant. It seemed to me to be unreasonable to expect the first defender or the judicial factory to incur expense defending an unnecessary action. In these circumstances I decided to award expenses against the pursuer. Insofar as the action was directed against the second defender, who was the solicitor for the first defender, the action was misguided and completely irrelevant. On any view the second defender was entitled to recover his expenses from the pursuer.