Scottish Court of Session Decisions

(1) Having regard to the provisions of sections 16(4) and 17(1) of the 1985 Act, the petitioner's attempt to recall the sequestration awarded in January 1989 is well out of time, and her averments in support of this are irrelevant. Section 16(4) of the 1985 Act provides that

"... a petition under this section may be presented -

(a) within 10 weeks after the date of sequestration; but

(b) at any time if the petition is presented on any of the grounds mentioned in paragraphs (a) to (c) of section 17(1) of this Act".

Section 17(1) provides inter alia that:

"The Court of Session may recall an award of sequestration if it is satisfied that in all the circumstances of the case (including those arising after the date of the award of sequestration) it is appropriate to do so and, without prejudice to the foregoing generality, may recall the award if it is satisfied that -

(a) the debtor has paid his debts in full or has given sufficient security for their payment ...".

(Paragraphs (b) and (c) are not relevant to the present case). The Court therefore has a general discretion to recall an award of sequestration, and this may be done if the Court is satisfied in all the circumstances of the case that it is appropriate to do so if the petition is presented within 10 weeks after the date of sequestration. If the petition is presented more than 10 weeks after the date of sequestration, the petitioner must bring herself within one of the grounds mentioned in paragraphs (a) to (c) of section 17(1). The present petition was presented within 10 weeks after the date of the 2005 sequestration, but more than 161/2 years after the date of the January 1989 sequestration. The petitioner makes no attempt to aver herself within any of the grounds mentioned in paragraphs (a) to (c) of section 17(1) of the Act; in particular, there is no suggestion that she has paid her debts in full or that she has given sufficient security for their payment. In these circumstances the averments in relation to the 1989 sequestration are irrelevant, and the petition insofar as directed against that sequestration is incompetent - Martin v Martin's Trustee 1994 S.L.T.261. (The petitioner was clearly aware of this problem some years ago, because she averred in her petition for suspension and interdict that the reason for her making that application was because "the time in which the petitioner could competently recall the sequestration has expired").

(2) The petitioner's averments and arguments with regard to the 1989 sequestration, and her attempt to claim damages following upon this, are res judicata. The averments which the petitioner has added by way of adjustment in these proceedings are virtually identical to averments on her behalf in several previous proceedings. She has already challenged the 1989 sequestration on the basis that it was wrongful and fraudulently obtained, and her challenges have been rejected in the civil courts on at least four occasions, including two occasions by the Inner House. Her action of reduction was rejected by Lord Bonomy on 14 November 1997 and her subsequent reclaiming motion was refused on 14 October 1998. Her petition for suspension and interdict was rejected by Lord Mackay of Drumadoon on 5 June 2003 and her reclaiming motion was refused on 17 December 2003. All the material which the petitioner seeks to place before the Court now was before the Court on those occasions, and the sum of damages which she seeks to recover in these proceedings is identical. Indeed, her pleadings in the present petition incorporate the previous pleadings in the petition for suspension and interdict and the action of reduction brevitatis causa. The complaints which she makes regarding errors in procedure, false information given to the Court and the prejudice which she has sustained are identical to the complaints which she made in both previous procedures. There does not appear to be any new matter raised with regard to the 1989 sequestration in the present proceedings which was not raised and determined against the petitioner in previous proceedings. I am satisfied that the respondent's plea of res judicata is well founded with regard to the petitioner's challenge to the 1989 sequestration.

(3) I should add, by way of elaboration on the last point, that if I am wrong on the question of res judicata, I should not have been prepared to have regard to the petitioner's averments in relation to the 1989 sequestration, because in light of the previous history of court procedures in relation to the 1989 sequestration, the petitioner's attempt to reopen and reargue these matters appears to me to be the sort of abuse of process which it is within the power of this Court to prevent - see Clarke v Fennoscandia Ltd (No.3) 2005 S.L.T.511. Because of the other factors to which I refer, I do not consider that it is necessary to rely on the Court's power in this regard in the present case.

(4) I do not consider that it is open to a petitioner seeking recall of sequestration in terms of sections 16 and 17 of the Bankruptcy (Scotland) Act 1985 to seek damages. There is nothing in the 1985 Act which gives the Court power to award damages in this procedure, nor is there anything in the Rules of the Court of Session which would justify this. The petitioner in her submissions sought to rely on sections 7 and 8 of the Human Rights Act 1998 for support for the proposition that a claim in terms of that Act (including a claim for damages) may be brought in any legal proceedings. However, it should be noted that section 7(1) of the 1998 Act provides that

"a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -

(a) bring proceedings against the authority under this Act in the appropriate Court or Tribunal ....".

and subsection (2) provides that:

"in subsection (1)(a) 'appropriate Court or Tribunal' means such Court or Tribunal as may be determined in accordance with Rules ....".

There is nothing in the Rules of the Court of Session, nor in the Bankruptcy (Scotland) Act 1985, which gives this Court power to award damages in a petition for recall of sequestration. Under our procedures, damages are normally obtained by means of ordinary action, and there is a clear distinction between the procedures applicable to a summons and those applicable to a petition (Tomkins v Cohen 1951 S.C.22). The Court is expressly empowered to award damages in petitions for judicial review. There is no such power conferred in the present procedure. Section 8(2) of the Human Rights Act 1998 provides that:

"Damages may be awarded only by a Court which has power to award damages, or to order the payment of compensation, in civil proceedings".

I do not consider that it is competent for this Court to make any award of damages in this process.

"On 20 May 1999, by virtue of section 6 of the Scotland Act 1998 (General Transitory, Transitional and Savings Provisions) Order 1999 the interest of the Lord Advocate in civil proceedings transferred to and became exercisable by the Advocate General. By virtue of section 48(1) of the Commissioners for Revenue and Customs Act 2005, which came into force on 7 April 2005, the Commissioners for Inland Revenue are now the Commissioners for Revenue and Customs and the property, rights and liabilities of any of the old Commissioners now vest in the new Commissioners".