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OUTER HOUSE, COURT OF SESSION
[2006] CSOH198
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A1848/01
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OPINION OF LORD
GLENNIE
in the cause
ROBERT BAIN
Pursuer
against
ANDREW ROBERT BAIN
& OTHERS
Defenders
ญญญญญญญญญญญญญญญญญ________________
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Pursuers:
Coutts; Balfour & Manson
First Defender:
Di Emidio; A & WM Urquhart
13 December 2006
Introduction
[1] On
13 September 2006 I
issued an Opinion in this action after a hearing on the Procedure Roll. For those who wish to understand what the
action is about, the neutral citation for that Opinion is [2006]
CSOH 142. At the end of that Opinion
I said this:
"it follows that
the pursuer is entitled to assert that any right to the subjects to which
Robert McMurtrie succeeded, upon the death intestate of his mother, prescribed
in 1961, that being 20 years after the death of the last infeft proprietor of
the subjects, John McMurtrie. It would
follow from that that Robert McMurtrie had no right of property with which to
make a contract for sale to the first defender in 1970."
I observed, however, that since the
discussion before me had been only on the defenders' plea-in-law to relevancy
and specification, that latter point did not strictly arise for decision; and I put the case out By Order for
consideration of further procedure. By
the time the matter came before me at the By Order hearing, the pursuer had
enrolled a motion for summary decree in terms of the first five conclusions of
the summons. That motion was
opposed. Due to pressure of other
business, I continued both the motion and the By Order hearing, with an
estimate of about half a day. The matter
came back before me on 29 November, when I heard argument for the pursuer and
the first defender.
[2] In
my earlier Opinion I set out the procedural history of the dispute between the
parties. In his first five conclusions
of the summons, the pursuer seeks, in effect, to undo much of what has gone
before including decrees made in earlier proceedings. Those conclusions are in the following terms:
"1. For production and
reduction of the pretended Missives between the late Robert McMurtrie and the
first Defender dated 19 October 1970 to convey the subjects known as and
forming 57 Main Street, Dreghorn to the first Defender.
2. For production and
reduction of the pretended Decree of Implement of the said Missives pronounced
and signed by the Honourable Lord Brand of 20 October 1976 and obtained at the instance of the
first Defender against the second and third Defenders.
3. For production and
reduction of the pretended Disposition granted by [sic] in favour of the
first Defender recorded in the General Register of Sasines for the County
of Ayr on 22 May 1996.
4. For production and reduction
of the pretended decree of implement which decree was pronounced and signed on 26 April 1995.
5. For production and
reduction of the pretended decree of reduction and interdict which decree was
pronounced and signed by the Honourable Lord MacLean on 7 January 1994."
Paragraphs 5 to 7 of my
earlier opinion explain the various decrees and dispositions to which those
conclusions refer (though I note that in paragraphs 5 and 7 thereof I
referred to Lord Grant when the reference should have been to Lord Brand).
Conclusions
1 - 4
[3] The
deeds and decrees referred to in the second, third and fourth conclusions of
the summons are founded upon the missives dated 19 October 1970 between the first defender and the
late Robert McMurtrie referred to in the first conclusion. In my earlier opinion in this matter, I
concluded that any right of property that the late Robert McMurtrie had once
had in the subjects had prescribed long before the missives of 19 October 1970. Those missives were therefore without content. For the pursuer, Ms Coutts argued that I
should therefore grant decree in terms of the first conclusion; and also of the second, third and fourth
conclusions since the reduction of the missives undermined what had been done
on the strength of them.
Mr Di Emidio, for the first defender, did not dispute the fact
that my decision undermined both the 1970 missives and those deeds and decrees. However, he opposed summary decree in respect
of these conclusions on the basis that the pursuer had not demonstrated title
to sue.
[4] His
argument, put shortly, was that although the pursuer was physically in
possession of the subjects, he claimed no good title thereto. The pursuer's claim was based upon having
taken an assignation of Bonds and Dispositions in security granted by John
McMurtrie in 1910 and 1912 in respect of certain loans. On the strength of that assignation, the
pursuer in June 1948 obtained decree of maills and duties from the Sheriff
Court of Ayr and Bute at Kilmarnock
against the representatives of the (by then late) John McMurtrie in respect of
the sums due under the Bonds. The
pursuer avers that he thereby became entitled to possess the subjects as
heritable creditor. Under reference to Graham Stewart on Diligence, at
Chapter 25, Mr Di Emidio argued that the right conferred by such
a decree was, at its highest, a right to enter into possession of the subjects
for the purpose of ingathering the rents or other fruits of the subjects. A creditor under such a decree applies the
rents or other sums towards the payment of public burdens, management,
insurance, repairs etc., and thereafter in payment of the debt and interest
thereon; but he must account to the
debtor for any balance remaining.
However, any right to payment of the principal sums due under the Bonds
prescribed in 1968 by virtue of the long negative prescription; and any obligation to pay interest under
those Bonds prescribed in July 1976 under the short negative prescription. Accordingly, he argued, the pursuer had no
further rights under the Bonds; and
therefore had no further right to the rents of the subjects or to
possession.
[5] Under
reference to the decision of the House of Lords in Henderson v 3052775 Nova
Scotia Limited 2006 SC (HL) 85, Mr Di Emidio reminded me that
a motion for summary decree is not intended to replace a hearing on the
Procedure Roll, and therefore is not designed for the disposal of legal
questions requiring a detailed and extensive legal debate. It should be reserved to cases where the
court is satisfied, without the need for any prolonged legal debate, but there
is no defence to the whole or part of an action; either because the defences pled are
irrelevant in law; or because, despite certain
denials or averments of fact, it is plain that the pursuer will succeed. I was reminded that the jurisdiction to grant
summary decree should be exercised cautiously.
I accept that approach.
[6] It
was no doubt with this approach in mind that Ms Coutts submitted that,
although she could answer the points on title to sue raised by Mr Di Emidio
- for example by submitting, under reference to para.398 of Volume 8 of
the Stair Memorial Encyclopaedia, that
even if the claim under the Bonds had prescribed the pursuer was entitled to be
regarded as validly in possession until he granted a retrocession to the owner
of the property - she was content at this stage to rely upon a simple
answer. That simple answer was this. The first defender in this action had brought
an action in the sheriff court to evict the pursuer from the subjects, founding
upon his title under the 1970 missives and the deeds and decrees following
thereon. The pursuer (the defender in
the sheriff court action) could not challenge the first defender's title in
that action of eviction. He had to come
to the Court of Session to do so. The
very fact that he was a defender to an action of eviction gave him title to
challenge the title of the party seeking to evict him in that action.
[7] In
my opinion Ms Coutt's argument is plainly right. The pursuer is entitled to come to court to
show that the title of the person seeking to evict him is no better than his
own. His right to bring the action
impugning the evictor's title does not depend upon any title of his own. It is enough that he is de facto in possession. Ms Coutts
referred me to Rankine, Rights and Burdens Incident to the Ownership
of Lands, 4th ed. (1909) which refers at page 9 to the
case of a mere squatter who is disturbed in his possession of land by one
equally devoid of title. Such a person
is entitled to resist such disturbance by appeal to the courts. In other words, he can raise an action
impugning the title of the person who seeks to evict him. Whatever the intrinsic merits of the
arguments raised by Mr Di Emidio, it seems to me that they do not go
so far as to show that the pursuer has no title in the present case to seek
relief in terms of the first four conclusions to the action. Nor do those arguments show, if the proper
analysis is that the question is of one of relevancy rather than title to sue,
that the pursuer's action in terms of those conclusions is irrelevant.
[8] It
was agreed that the two decrees referred to in the second and fourth
conclusions were decrees in absence. I
was referred to the case of Robertson's
Executor v Robertson 1995 S.C.
23. In deciding whether to reduce a
decree in absence, the court must look at the whole circumstances of the
case. There is no general rule. Each case must turn upon its own
circumstances. Apart from the question
of title to sue, no argument was raised to the effect that as a matter of
general discretion in the whole circumstances I should not grant decree in
terms of the first four conclusions.
Standing my decision on prescription in my earlier Opinion, I have difficulty
in seeing why I should not grant decree in those terms once I have satisfied
myself that the title to sue point was without merit. Accordingly, I am prepared to grant decree in
terms of the first four conclusions.
Conclusion 5
[9] The
fifth conclusion seeks to reduce the decree of reduction and interdict
pronounced by Lord MacLean on 7 January
1994. This decree was
pronounced in foro and therefore stands
on a different footing to the others. By
that decree Lord MacLean reduced the missives entered into between the
pursuer and John and Mary McMurtrie in 1986.
He did so on the basis that, in entering into those missives, the
pursuer (the first defender in that action) was in mala fide, being fully aware not only of the missives between the
present first defender and Robert McMurtrie in October 1970 but also of the
decree of implement pronounced by Lord Brand.
[10] The case of Robertson's
Executor v Robertson shows that a
pursuer must show "exceptional circumstances" in order to justify reduction of
a decree in foro. I was referred by Mr Di Emidio to
the discussion of this topic at page 583 of Maxwell, The Practice of the Court of Session. The general rule as there set out is that a
decree in foro cannot be reduced on
the merits, either on grounds founded on and declared by the judge to be
insufficient or on grounds which a party has neglected to put forward. It may, however, be reduced on averment of
facts of which the pursuer in the action of reduction was excusably ignorant
and which, if established, would be sufficient to render the former judgment
erroneous. But this is but one instance
of exceptional circumstances. In the
action before Lord MacLean the present pursuer was not represented by solicitor
or counsel. He did not contend, as in my
opinion he might successfully have contended, that the missives of October 1970
were themselves apt to be reduced.
Mr Di Emidio argues, therefore, that there are no exceptional
circumstances such as those identified by Maxwell
and he can rely upon a plea of res
judicata. If the pursuer has any
remedy, he argues, it must be by seeking to reclaim out of time. He pointed out that if the missives of
October 1970 were to be reduced on the basis that by that date any title to the
subjects had prescribed, that would apply equally to the missives of 1986 upon
which the pursuer relied. Accordingly,
Lord MacLean's decision reducing the 1986 minutes was correct, even if his
reasoning was not. If, as the pursuer
complained, the reduction of the 1986 missives was preventing the pursuer from
recording a new a non domino title -
I am told that the Keeper of the Register refuses to record such a title in
light of Lord MacLean's decision - the pursuer's remedy was one of judicial
review of that refusal rather than of reduction of the decree. For the pursuer, on the other hand, Ms Coutts
argued that the exceptional circumstances here were that if I were to reduce
the 1970 missives but not the decree pronounced by Lord MacLean in 1994, the
position would be that one party would have possession but be unable to record
a good title whilst the other would have no title at all. Unless the decree were reduced, this impasse
would be perpetuated.
[11] I have come to the conclusion that I should reduce the decree
of January 1994; and that I should do so
on this motion for summary decree since I have had all the arguments presented
to me and there is nothing to be gained by a further hearing at which the same
arguments are rehearsed afresh. This is
not a case where the pursuer has become aware of new facts of which he could
not reasonably have been aware in the previous proceedings before Lord
MacLean. Nor am I persuaded that the
impasse created by that decision would, of itself, justify reducing the decree
pronounced in foro. Nonetheless, once I have granted decree in
terms of the first four conclusions, and in particular have reduced both the
1970 missives and the decree of implement pronounced in 1976 by Lord Brand, the
factual underpinning upon which Lord MacLean held the present pursuer to be in mala fide is removed. It would be unfair to the pursuer to leave
that stain hanging over him. Further, it
is agreed by counsel that in other respects too Lord MacLean proceeded upon a wrong
analysis of the law, not through any fault of his but because he was not
referred to authorities showing that title to the subjects could
prescribe. It can, I think, properly be
said that the reduction of the 1970 missives and of the decree of implement in
1976 has undermined Lord MacLean's decision; and that these constitute exceptional
circumstances justifying reduction of the decree resulting therefrom. I shall therefore grant summary decree in
terms of the fifth conclusion. It will,
of course, be open to the first defender in the present action, if the parties
choose to continue this war of attrition, to seek to reduce the 1986 missives
in a fresh action on a different ground, namely that, by the time of those
missives, John and Mary McMurtrie's title, if any, to the subjects had prescribed. But it may be that there would be no point in
him so doing.
Disposal
[12] I shall grant the pursuer's
motion and pronounce summary decree in terms of the first five conclusions of
the summons.
