EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Abernethy Lord Johnston Lord Carloway |
[2006]
CSIH 38 P1665/05 OPINION OF THE COURT delivered by LORD CARLOWAY in the PETITION of CHARLOTTE LISTON SUTHERLAND
Petitioner and Reclaimer against THE ADVOCATE GENERAL for Respondent for
Recall of Sequestration
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Act : Party
Alt : Paterson; HM Milne, Solicitor for HM Revenue & Customs
1.
Background
"the Lords of Council and Session
decerned against the petitioner for payment to each of the respondents of the
sum of...(£11,468.43) of taxed expenses".
[2] A charge was
served on the reclaimer in respect of the decree on
[3] In due
course, the petition and answers came before the Lord Ordinary. On
2.
Submissions
[4] The
reclaimer's submissions at the bar followed the detailed amended grounds of
appeal which she had lodged. Without
repeating all of that detail, the contentions were that the Lord Ordinary had
erred in a number of respects. First, he
had erred in being satisfied that the petition for sequestration had been in
accordance with the 1985 Act. This
repeated the principal point raised before the Lord Ordinary concerning the
respondent pursuing a sequestration based upon an extract decree in favour of
the Lord Advocate and others. Second, he
had failed to have regard to section 17(2) of the 1985 Act, which permitted the
Court to recall an award of sequestration even if it was not the one sought to
be recalled in the petition. Third, he
had erred in his willingness to sustain the res
judicata plea. The action of
reduction had only been dismissed. No
decree of absolvitor had been granted. The
parties to the petition for suspension and interdict had not been the same as
in the present petition. The subject
matter of the present petition was not the same as in the earlier petition and
action. Fourth, he had failed in considering
the petition to be an abuse of process. Fifth,
he had erred in holding that damages could not be sought in the petition. An analogy between the present petition and
judicial review petitions was drawn and reference made to Attorney General's Reference (No 2 of 2001), sub nom R v J
(Unreasonable Delay) [2003] UKHL 68; [2004] 2 AC 72 (Lord Rodger of
Earlsferry at para 175). In any event,
in terms of sections 7 to 11 of the Human Rights Act 1998 (c 42) the Court was
entitled to make an award of damages in appeal proceedings. Sixth, he had erred in stating in his Opinion
that he was going to sustain all of the respondent's pleas-in-law but then only
sustaining one in the interlocutor dismissing the petition. Seventh, and perhaps repeating the first
ground, he had erred in considering that the respondent was entitled to pursue
a petition based on a debt due to the Lord Advocate and others. Eighth, again perhaps as repetition, he had
erred in relation to the reclaimer's liability to pay the respondent rather
than the Lord Advocate. Ninth, he had
erred in not noticing that the extract was ambiguous; there had been a defect
in procedure because the creditor's oath, extract decree and execution of
charge had not been served with the petition; and there had already been a
sequestration in 1989. Tenth, he had
failed to notice that the merits of the petition had been dealt with by the
Inner House on 27 September 2005.
[5] The
respondent placed the grounds of appeal into three categories. First, there were those directed against the
Lord Ordinary's refusal to recall the 2005 sequestration (first, second, sixth
to tenth). In that regard, there was no
dispute that the reclaimer had received the charge for payment. The petition had been duly served on the
reclaimer and the schedule of documents attached to it included reference to
the oath, extract decree and execution of charge. There was a requirement to lodge these
documents (Rule of Court 27.1) but not to serve them, as distinct from an
inventory specifying their nature, on the parties referred to in the schedule
for service (Rule of Court 4.5). The
schedule of documents operated as an inventory in these circumstances. The decree which had been extracted stood
unreduced. It related to the unsuccessful
petition for suspension and interdict which had been directed against the Lord
Advocate for and on behalf of the Commissioners for Inland Revenue. The Lord Ordinary had set out the legislation
vesting the functions of the Inland Revenue in the Advocate General and dealing
with the amalgamation of the Inland Revenue with the Customs and Excise. There was no merit in the grounds of appeal
covering this point. The Inner House, in
its interlocutor of
3.
Decision
[7] Article
6 of the Scotland Act 1998 (General, Transitory and Savings Provisions) Order
1999 (supra) provides that any
interest of the Lord Advocate in civil proceedings then pending, other than any
interest derived from his position as prosecutor, transferred to, and became
exercisable by, the Advocate General. The
petition process in which the expenses were awarded was then pending. Again by operation of statute, the Lord
Advocate's interest then vested in the Advocate General, hence the appearance
on behalf of the Advocate General, but not the Lord Advocate, at the hearing on
the petition and answers on
[8] What
is important to observe is that neither the appearance of the Lord Advocate nor
that of the Advocate General was on a personal basis. In each case it was for and on behalf of the
Commissioners for Inland Revenue. That
is made clear in the Lord Ordinary's interlocutors of 25 April and 5 June 2003. The extract decree does refer simply to the
Lord Advocate. It does not specifically
state that he was in that process for and on behalf of the Commissioners. There was no need for it to do so. It was the reclaimer herself who expressly
introduced the Lord Advocate into the process in that capacity. She could have been in no doubt that any
decree in his favour, including one for an amount of expenses, would also be in
that capacity. The debt evidenced by the
extract decree was one due to the Commissioners. It was the Commissioners who became qualified
creditors of the reclaimer. It was they
who, therefore, caused the charge to be served by messengers-at-arms demanding
payment to the Inland Revenue; that step not requiring the intervention of a
law officer. When it came to further court
action, the practice of the court requires that any petition be at the instance
of the appropriate Government minister. Because
of the timing of the petition for sequestration relative to the 2005 Act, it
could only be raised on behalf of the Commissioners' successors under the 2005
Act. Furthermore, by this time it could
only be at the instance of the Government minister in whose name such
proceedings customarily run. Since
revenue matters are reserved under the Scotland Act 1998, that officer had to be
one from the United Kingdom Government and not the Scottish Executive, of which
the Lord Advocate was by then a member. The
appropriate minister was the Advocate General.
[9] It
follows from all of this that the terms of the Bankruptcy (
[10] The
extract decree is not ambiguous. It
makes it clear that the sum stated is to be paid to each of the respondents in
that process. There was no procedural
defect relative to the lodging and intimation of the oath, decree or charge
since there was no requirement for these to be served on the reclaimer. The fact that there had been an earlier
sequestration of the petitioner does not render the subsequent petition
incompetent. It follows that the
reclaimer's ninth ground must fail.
[11] The
Inner House's interlocutor of
[12] The
reclaimer sought to recall the 1989 sequestration in a petition lodged on
[13] The
Lord Ordinary considered that, because of the previous action of reduction and the
petition for suspension and interdict, the attempt to recall the sequestration
must fail as being res judicata. However, the action of reduction resulted
only in a decree of dismissal. For the
reasons set out in Waydale v DHL Holdings
(
[15] Finally,
so far as the conflict between the final paragraph of the Lord Ordinary's
Opinion and his interlocutor is concerned (the sixth ground of appeal), this is
a matter which does require to be clarified.
In light of the reasons given above, the result will be that the
interlocutor of the Lord Ordinary dated