Scottish Court of Session Decisions

INFOPursuer: John H Parkes (Party)

First Defender: Bowen, Advocate; Bonar Mackenzie, WS

Second Defenders: Howlin, Advocate; Shepherd & Wedderburn

16 May 2006

[1] This is an action forof production and reduction of an award of sequestration of the pursuer which was granted in Edinburgh Sheriff Court on 10 June 2004. The summons was signetted on 10 December 2004. At that time the action was directed against the first defender only. The material averments in support of the pursuer's first plea-in-law that he had been unlawfully sequestrated are contained in Article 3 of Condescendence and were comparatively brief.

[2] On 12 January 2005 the action was sisted to enable the pursuer to apply for legal aid. That sist was recalled on 13 May 2005. The detailed history of subsequent events is apparent from the interlocutor sheet.

[3] On 7 October 2005 defences for the first and second defenders were allowed to be received and a motion for the pursuer made at the bar to sist the cause was refused in hoc statu. The Open Record was lodged on 20 February 2006 and the adjustment period began on 1 March 2006. The Record was due to close on 26 April 2006.

[4] On 24 April 2006 the pursuer enrolled a motion to extend the adjustment period by four weeks. His reasons for the motion were set out in a paper apart dated 21 April 2006 and consisting of eight numbered paragraphs. That motion came before the Court on 26 April 2006, the day on which the open record was due to close. The first and second defenders were represented by counsel but the pursuer was not present. Earlier that morning the pursuer had sent two faxes to the court; the first timed at 07.05 and the second at 09.50.

[5] In the first fax the pursuer informed the Court that he had been obliged to make an appointment with his GP owing to "chest pains and ancillary problems". He explained that he might be delayed and requested that the hearing of his motion might be put back. In the second fax the pursuer advised the Court that he was unfit to attend the hearing of his motion. He stated that his GP would provide a letter to that effect. He further stated that he would ensure that that letter would be delivered and faxed to the Court that afternoon. In both faxes the pursuer apologised to the Court for the inconvenience caused.

[6] When the case called on the motion roll on 26 April 2006, counsel for both defenders were already aware of the terms of the first fax but not of the second fax. They explained that the pursuer had intimated substantial adjustments on 7 April 2006 which both defenders had answered by adding two denials (Answers 5 and 6) to two new Articles of Condescendence which had been introduced in the pursuer's adjustments. They both submitted that there was nothing new for the pursuer to answer and that the Record should be allowed to close.

[7] In view of the terms of the pursuer's second fax, and in particular his undertaking to produce a letter from his doctor later that day, I was prepared to continue consideration of the pursuer's motion until 28 April 2006. I note that that interlocutor is not included in the Reclaiming Print. Thereafter steps were taken to intimate the continued diet to the pursuer.

[8] When the case called again on the motion roll on 28 April 2006, the pursuer appeared in person and the first and second defenders were represented by counsel, different from those who had appeared on 26 April 2006. The pursuer produced at the bar two documents. The first was a letter dated 27 April 2006 from Dr M. McDermott, the terms of which are self evident. It contained no reference to any particular incident having occurred on 25 or 26 April 2006 or to the pursuer having been seen by Dr McDermott or by any other doctor on the latter date. The second document extended to six pages and contained, in addition to an apology to the Court for the pursuer's inability to attend on 26 April 2006, reasons for seeking a continuation of the adjustment period in addition to those stated in the original paper apart. In the penultimate paragraph the pursuer stated:

"The pursuer submits that under the circumstances as already pled these proceedings should be sisted until critical and perhaps unlawful matters are fully considered and put to right under the law."

[9] The six page document tendered by the pursuer was read out by him and formed his submission to the Court. It was extremely helpful to have that carefully prepared document to assist my understanding of the pursuer's submission.

[10] Counsel for both defenders urged me to refuse both the pursuer's motions to continue the adjustment period and his motion, moved at the bar, to sist the cause. Mr Bowen for the first defender drew my attention to the terms of Rule of Court 22.2(3)(b) and to the wide discretion which the Court has in determining whether or not to extend the adjustment period. He submitted that the matters now being raised by the pursuer were irrelevant and in no way referable to the adjustments to the first defender's defences. He also drew attention to the considerable delay whichat had occurred in this action since it had been raised in December 2004.

[11] Mr Howlin for the second defenders adopted Mr Bowen's submissions. He emphasised two key dates; the award of sequestration on 10 June 2004 and the raising of the present action on 10 December 2004. He also pointed out the brief nature of the pursuer's pleadings in the original summons and the extensive nature of the adjustment made by the pursuer on 7 April 2006. He explained that the second defenders were nevertheless content that the Record should close having added the denials in their Answers 5 and 6. He submitted that nothing which had been said by the pursuer would have justified the exercise of their discretion under Rule of Court 22.2(3)(b) to extend the adjustment period. He submitted that some of the points raised by the pursuer in his helpful written submission weare already fore-shadowed in the pleadings. If he wished to amplify those pleadings, a Minute of Amendment would be the appropriate course of action for him. On the other hand, the pursuer's creditors were being prejudiced by any continued delay in the present proceedings. Although the action had been in court since December 2004, no real progress had been made. Mr Howlin further submitted that there was no adequate reason advanced by the pursuer in support of his motion for the action to be sisted.

[12] I refused both of the pursuer's motions. I considered the eight points made by the pursuer in his paper apart and the various points made in his written submission but I concluded that none of those points either singly or cumulatively justified either continuing the adjustment period or sisting the action at this stage. While I sympathised with the pursuer's state of health as disclosed in both the recent letter from Dr McDermott and the earlier, confidential letter from him, I noted that the pursuer had been able to prepare his first note of adjustments dated 7 April 2006, the paper apart dated 21 April 2006 and the written submission dated 27 and 28 April 2006. While I also appreciated that the pursuer was engaged in other litigation in various courts and that he does not have the benefit of legal aid, any diet for future procedure in the present action could be fixed having regard to his other court commitments.

[13] In his written submission the pursuer raised essentially three points. First, the case law which he had recently discovered which, he submitted, supported the argument which he makes in his new Article 4 of the Condescendence regarding the nature and effect of a "freezing order". I doubted whether any elaboration of his pleadings was necessary to enable him to make use of this newly discovered case law but, even if he wished to do so, that could be done by way of amendment.

[14] Secondly, the pursuer is concerned about an alleged conflict of interest affecting the Accountant in Bankruptcy's solicitors who, according to the pursuer, hold a first standard security over heritable property belonging to the pursuer which had previously been "forgotten about by the pursuer". It was not immediately apparent to me how the pursuer had suffered either potential or real prejudice as a result of this state of affairs, but I considered that again if the pursuer wished to introduce a new basis for seeking reduction in the present action, he could do so by way of amendment.

[15] Thirdly, the pursuer referred to case law in support of his proposition that the second defenders had practisced fraud on the English Court which gave rise to the debt in respect of which the second defenders had obtained the pursuer's sequestration. Here again I considered that this case law simply supported a case which the pursuer has already made out in Article 2 of Condescendence. There he avers in terms that "the second defender made false statements and maintained a false pretence to Mr Justice Laddie" and that the decisions in the Chancery Court upon which his sequestration was founded had been "fraudulently obtained". If the pursuer nonetheless wishes to elaborate those averments in light of the case law to which he refers, he can do so by way of amendment.

[16] I was concerned that this action has been in court for so long and that so little progress has been made. I regarded it as unsatisfactory that creditors of the pursuer should suffer any unnecessary delay and uncertainty. On the other hand, I did not consider that the pursuer would be prejudiced by the closing of the Record. Any further alteration to the pleadings could be done by way of amendment. If the defenders considered any future minute of amendment to contain wholly irrelevant averments, they would have the opportunity to oppose the amendment of the Record at that stage. The practical advantage which I saw in allowing the Record to close was that it would then be??? possible to determine future procedure, whether by way of procedure roll debate or proof before answer, and for an appropriate diet to be fixed. That progress could not be made until the Record had closed. If the pursuer did choose to seek to amend his pleadings, future procedure, and the appropriateness of any diet that had been fixed, could be reconsidered.

[17] With regard to the pursuer's motion to sist, he made no specific submissions in support of that application other than what is contained in the penultimate paragraph of his written submission, to which I have already referred. In particular, he did not suggest that he proposed to take any specific action other than in the present proceedings to ventilate the concerns to which he referred and the outcome of which might have been a reason to delay progress in the present action. He did not, for example, suggest that he was going to raise proceedings against the Accountant in Bankruptcy's solicitors nor to challenge the orders made by Mr Justice Laddie. There appeared to me to be a certain inconsistency between the pursuer on the one hand seeking an extension of the adjustment period to enable him to make further adjustments to his pleadings, presumably with a view to progressing the action, and on the other hand seeking to sist it for no reason other than those stated in support of his motion for a four week extension of the adjustment period. He did not, for example, suggest that his medical condition or his commitment in other courts were of such a nature as to preclude him from being able to adjust his pleadings. If the pursuer's state of health in the future looked likely to prevent himthe pursuer from representing himself at a future diet of debate or proof before answer, that issue could be addressed at the time and did not, in my opinion, justify a sist now.

[18] For all these reasons I refused both motions. The pursuer then asked if he could appeal my decision. I informed him that leave of the Court was required to reclaim my decision not to extend the adjustment period but that leave was not required to reclaim my decision not to sist the cause. The pursuer did not seek leave to reclaim the first of my decisions.