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Cite as: [2004] ScotCS 167

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Riley v. James Beaton & Company (Plumbers) Ltd & Ors [2004] ScotCS 167 (14 June 2004)

OUTER HOUSE, COURT OF SESSION

OPINION OF LORD MACKAY OF DRUMADOON

in the cause

HUGH RILEY

Pursuer;

against

(FIRST) JAMES BEATON & COMPANY (PLUMBERS) LIMITED; (SECOND) T. & J. W. NEILSON LIMITED; (THIRD) CARILLION CONSTRUCTION (CONTRACTS) LIMITED; (FOURTH) THE BLACKHALL GROUP LIMITED; (FIFTH) ALBERT THAIN LIMITED; (SIXTH) HENRY ROBB LIMITED; (SEVENTH) D. BLAKE & COMPANY LIMITED; (EIGHTH) PRESS CONSTRUCTION LIMITED; (NINTH) EMCOR DRAKE & SCULL GROUP PLC; (TENTH) SHAW-PETRIE LIMITED; and (ELEVENTH) AMEC PLC

Defenders:

________________

Pursuer: Marshall, Solicitor Advocate; Thompsons

First, Fifth and Ninth Defenders: Laing; Simpson & Marwick

Second, Eighth, Tenth and Eleventh Defenders: McGregor; Simpson & Marwick

Third Defenders: Stephenson; HBM Sayers

Sixth Defenders: Summers; Biggart Baillie

14 June 2004

[1] This is an action for damages in which the pursuer seeks to recover damages in respect of the loss, injury and damage he claims to have suffered on account of being exposed to asbestos, whilst in the employment of the various defenders. The action was raised in 2003. On 31 July 2003, on the unopposed motion of the pursuer, the action was sisted. That sist was granted to enable Patricia Riley, the pursuer's wife, to lodge an application, under the provisions of the Adults with Incapacity (Scotland) Act 2000 ("the 2000 Act"), for the making of an Intervention Order, in respect of the pursuer. Such an application was deemed to be appropriate by Mrs Riley and the solicitors acting for the pursuer.

[2] Section 53 of the 2000 Act provides as follows:

"53.-(1) The sheriff may, on an application by any person (including the adult himself) claiming an interest in the property, financial affairs or personal welfare of an adult, if he is satisfied that the adult is incapable of taking the action, or is incapable in relation to the decision about his property, financial affairs or personal welfare to which the application relates, make an order (in this Act referred to as an 'intervention order').

(2) In considering an application under subsection (1), the sheriff shall have regard to any intervention order or guardianship order which may have been previously made in relation to the adult, and to any order varying, or ancillary to, such an order.

...

(5) An intervention order may -

(a) direct the taking of any action specified in the order;

(b) authorise the person nominated in the application to take such action or make such decision in relation to the property, financial affairs or personal welfare of the adult as is specified in the order.

...

(7) In making or varying an intervention order the sheriff may, and in the case of an intervention order relating to property or financial affairs shall, except where -

(a) the person authorised under the intervention order is unable to find caution; but

(b) the sheriff is satisfied that nevertheless he is suitable to be authorised under the order,

require the person authorised under the order to find caution.

...

(9) Anything done under an intervention order shall have the same effect as if done by the adult if he had the capacity to do so.

(10) Where an intervention order is made, the sheriff clerk shall forthwith send a copy of the interlocutor containing the order to the Public Guardian who shall -

(a) enter in the register maintained by him under section 6(2)(b)(v) such particulars of the order as may be prescribed; and

(b) notify the adult, the local authority and (in a case where the adult's incapacity is by reason of, or reasons which include, mental disorder and the intervention order relates to the adult's personal welfare or factors which include it) the Mental Welfare Commission.

...

(12) A person authorised under an intervention order may recover from the estate of the adult the amount of such reasonable outlays as he incurs in doing anything directed or authorised under the order."

[3] Following upon the action being sisted, Mrs Riley lodged the necessary application in the Sheriff Court in Edinburgh. On 1 April 2004 the Sheriff at Edinburgh pronounced an interlocutor in the following terms:

"The Sheriff, on the motion of the applicant, grants an Intervention Order in terms of section 53(1) of the Adults with Incapacity (Scotland) Act 2000 authorising the applicant to make decisions and give instructions in room and place of her husband, Hugh Riley, in relation to pursuing the action for reparation raised in the Court of Session at his instance ("the Action") and conferring on her the following powers:

(a) the fullest powers in relation to the conduct of the Action as if she were herself the pursuer, including instructing solicitors and counsel, abandoning or compromising the Action and implementing, enforcing or appealing any judgment, order or award;

(b) to receive, discharge and settle all sums or rights due or which may become due to the adult in the Action;

(c) to exercise any rights of access which the adult has in relation to personal data and records required in connection with the Action;

(d) to have access to any information regarding the action including information confidential to the adult.

Finds any expenses incurred by the applicant in the making of this application, including expenses for pre-litigation advice provided by the agents to the applicant to be remunerated from the adult's estate; allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report."

[4] At a By Order hearing in the present action, which took place on 26 April 2004, I was informed that the Intervention Order had been granted on 1 April 2004. During that By Order hearing, it was agreed by those appearing for all the parties and myself that the procedure that should be adopted was for Mrs Riley to lodge a Minute of Sist and Minute of Amendment seeking to convene herself as an additional party to the action. The By Order hearing was continued until 14 June 2004 to enable those Minutes to be drafted and lodged.

[5] Minutes of Sist and Amendment were duly drafted. The Minute of Sist sought to sist Mrs Riley as the pursuer in the action in room and place of the present pursuer, Mr Riley. However, when those Minutes were lodged in process, the question was raised as to whether sisting Patricia Riley as a party to the action was in fact the correct course to follow. For that reason I arranged that parties should address me on 14 June in respect of a number of matters:

Whether, standing the terms of the Sheriff's Order of 1 April 2004, the Minuter (Mrs Riley) is now entitled to become a party to the action?
The related question of whether the Minute could give instructions for the conduct and settlement of the action, without her becoming a party to the action?
Whether lodging a copy of the Intervention Order in process would provide appropriate and sufficient intimation to the Court, and to the other parties to the action, of the extent of the Minuter's powers?
The related question of whether the Minuter required to sist herself as a party to the action.
If the Minuter was entitled/required to become a party to the action, whether she should do so "in room and in place" of the pursuer or as an additional party?
Whether section 53(12) of the Adults with Incapacity (Scotland) Act 2000 would entitle the Minuter to be reimbursed by the pursuer in respect of any award of expenses made against her, which she required to meet?

[6] When the case called again at the By Order Roll hearing on 14 June most of the parties to the action were represented. Those legal representatives present were unanimously of the view that it was neither necessary nor appropriate for Patricia Riley to be sisted as a party to the action, whether as an additional party or in room and place of her husband.

[7] The solicitor advocate for the pursuer and counsel acting for the various defenders represented were agreed that in the event of a decree for expenses passing against the pursuer, the taxed expenses would be recoverable from the pursuer rather than from Patricia Riley. Section 53(12) entitles Patricia Riley, as the person authorised by the Intervention Order, to recover from her husband's estate such reasonable outlays as she may incur in connection with the action.

[8] During the hearing on 14 June it was noted that the Sheriff had not made any order with regard to the question of caution. Whilst the view was expressed that the Sheriff ought to have done so, unless he had prepared to hold that the provisions of section 53(7)(a) of the 2000 Act applied, no party insisted on caution being found in the circumstances of the present action.

[9] During the hearing, reference was made to Ward on Adult Incapacity, p. 190, and Maxwell on Court of Session Practice, Chapters 8 and 9.

[10] I accept the submissions made to me. In my opinion, now that a copy of the Intervention Order has been presented to the Court, it is not necessary for the Court to make any further order and in particular to require that Patricia Riley should sist herself as a party to the action. The provisions of the 2000 Act do not require that Mrs Riley should be convened as a party to the action. Nor is there any Rule of Court that requires that to occur. On the contrary, the terms of the Sheriff's Intervention Order, when read with the provisions of section 53(5)(b) of the 2000 Act, grant Mrs Riley sufficient authority to issue any instructions to the solicitors acting for the pursuer that they may be require to enable the present action to be brought to a conclusion. All the other parties are aware of the making and terms of the Intervention Order, as is the Court. Nothing would be achieved by convening Mrs Riley as an additional party to the action. On the contrary additional expense would be incurred. Furthermore, were Mrs Riley to be sisted as a party to the action, it would not be appropriate that she be sisted in room and place of her husband, because any liability for expenses in favour of the defenders, would fall to be borne by the pursuer. It could not properly lie against Mrs Riley. In my opinion, that requires that the pursuer remain a party to the action. For all these reasons, I am satisfied that the course of action agreed to by those parties, who were represented at the hearing on 14 June 2004, is the correct way forward. In these circumstances, having noted the making and terms of the Intervention Order I shall make no further order.

[11] It is appropriate to record that when this issue arose my Clerk contacted the Office of the Public Guardian, which has certain statutory functions to perform in relation to Intervention Orders. The case administrator handling this particular Intervention Order was asked whether or not the Public Guardian wished to express any view as to whether an individual such as Patricia Riley, in whose favour an Intervention Order had been granted, ought to be sisted as a party to the court action that led to the appointment being made. The Public Guardian declined to express any view on the matter.