Scottish Court of Session Decisions

"The pursuer having regard to the duties imposed upon him by said interlocutor, is desirous of selling the greater part of said subjects under the exception of the farmhouse at Clachan of Penninghame which is currently occupied by the defender, and certain other lands ... ".

"The pursuer has assured the defender that the house which she occupies, and which forms part of the security subjects will not be exposed for sale. Said house and the land immediately around it have been specifically excluded from the subjects exposed for sale."

There is a map attached to that production and I was told that the excluded part referred to therein is the house and land with which this action is concerned.

"The Judicial Factor has no intention of selling the farmhouse and when we indicated that the Clachan would be sold we should have said that the sale would be under exception of the farmhouse. As far as we are aware, provided the sale of the farm goes through at the agreed price, the Judicial Factor will be able to convey that farmhouse to you, although at this point in time we are not sure how the value of the farmhouse will be calculated when the Judicial Factor accounts to you for your share of the surplus of any estate."

1. Was the judicial factor justified in rejecting the Armstrong family offers in 1987? and

2. In light of the ongoing costs, was he justified in his continued insistence that

the heritage should only be sold on the open market?

She wondered whether there was another agenda with this insistence on selling.

"Any cash deficit arising out of further costs incurred since February 2003 as well as any future costs should also be met by Mr Dunlop. In addition to the two above mentioned payments (£15,000 made in 2001 and £10,000 made in 1998) which were made to Mr Dunlop, £11,500 was paid out in January 1996 and a further £50,000 in December 1997, totalling £61,500. An equal distribution of £61,500 should also have been made to myself at this time. However, of this amount £24,288.03 was arrested and paid out to the Bank of Scotland. £20,000 was also arrested by Gillespie, Gifford and Brown, although this arrestment was not enforced. A total of £37,211.97 should therefore have been made out to myself at this stage. Whilst I received a cheque for the amount of £17,211.97, as part payment of the above £37,211.97, the cheque was never honoured by the judicial factor. Yet again, an unequal distribution was therefore made by the judicial factor to the amount of £37,211.97. The above illustrations made here are but a sample of the gross irregularities which have occurred in distributions made from this judicial factory estate."

No. 6/7, the 1999 accounts, showed a payment of £10,000 to her ex-husband. There was a reference in it to £6,151.98 attributable to maintaining the pursuer's property (Schedule 2). This related, amongst other things, to the keeping of ponies and the like. No. 6/4, the 2002 accounts, showed £15,000 paid to her ex-husband but they also showed funds of £12,527.24 arrested by her creditors. She said she did not know what that was about. She also said that there were a number of other payments made. These are set out in Article 6 of Condescendence and amount to £133,700.

"throughout 2001, Mrs. Armstrong became quite depressed with her general condition. She was seen on 16 February 2001 where her general practitioner noted weepiness, difficulty sleeping, flashbacks and general symptoms of depression ... "

He had noted that her case was reviewed by a Miss Costigan on 2 October 2001 and her depression was noted. Miss Costigan noted that she was having suicidal thoughts and felt that she should be referred to a psychiatrist. His opinion dealt with the physical symptoms but he went on to say that she suffered from depression with associated anxiety and panic attacks made worse by memories of her mother's death at the age of 19 in a motor vehicle accident as well. He recommended that she would benefit from psychiatric involvement, amongst other things.

"Thereafter the parties to said Joint Minute and the first defender proceeded in reliance and in implement thereof. In particular in 1989 the parties hereto entered into correspondence to agree a plan of the property at Clachan of Penninghame Farmhouse for the purpose of the first defender granting a Disposition in favour of the pursuer of said property in implement of her entitlement in terms of said Joint Minute."

By letter dated 2 February 1989 Hewats, Solicitors, Kirkcudbright wrote on behalf of their client, the first defender, inviting the pursuer's agents to draft a disposition. It was again put to her that the judicial factor wished to transfer title to her at that time. She queried why his side had not drafted the disposition. She accepted, however, that titles had been sent to her solicitor for a disposition to be drafted in 1989. She said that she did not know why her solicitors did not wish to draft the disposition. It was put to her that in answer to a question by me she had said that the disposition could not be granted by the judicial factor but had to be granted by the heritable creditor. It was suggested that she had said she wanted title from the heritable creditor. She denied this and said she could not remember what she had said earlier. The difficulty might have been something to do with separating the land from the house. Her position was as set out in the first sentence of Condescendence 4. She was asked how the first defender could implement an agreement to which he was not a party. It was suggested that the judicial factor knew that she wanted to stay in the property and thought that it was possible, subject to the consent of the Accountant of Court, though this was nothing to do with the joint minute. She said that she could not speak of the intentions of others. She had been asking for the transfer and there was nothing complicated about it. She signed the joint minute in good faith believing that title would be transferred to her. Twenty years later it had still not happened.

" You have already corresponded with us in the past about giving Mrs Dunlop a title but Mrs Dunlop felt she could not accept a title from the Judicial Factor. Events have proved that she was absolutely right in this. We believe the Clachan of Penninghame should be excluded from the sale under the Standard Security & for Standard Security accounting purposes its value should be nil. Do you agree?"

She said it was not her position that she would not accept a title from the judicial factor. To that extent the letter from her brother's agents, who were also her own agents, was not correct. She could only obtain a title from the judicial factor but the letter was encouraging her brother to sell. I have to say I could not quite follow that answer. She confirmed that she had accepted that Clachan of Penninghame formed part of the sequestrated estate. She did not regard the permission to stay on the property granted by her brother, as heritable creditor, as some form of transfer of title or ownership. The judicial factor was the only one who could grant a disposition. She did not know what was meant by "excluding the property from the sale", as the extract from the letter narrated. The second extract, from the judicial factor's solicitor, indicated that they could not agree with the other solicitor's contention about Clachan of Penninghame. The pursuer said that the judicial factor's solicitors were saying it should be sold. She agreed that her solicitor was a Mr Pumphrey. He was the person to whom Hewats had written about the title. It was put to her that Mr Pumphrey had, in the early 90s, told the judicial factor's solicitor that she had refused to take title and that she did not recognise his appointment. On being asked whether she told Mr Pumphrey that, she said "Certainly not". She said that the writer of the first letter in 6/29 could have been Mr Pumphrey.

"Dear Mr Reid,

Our position is clear; I trust that the undernoted instructions have been made clear to the judicial factor, his agents and the court."

It goes on:

"On behalf of myself, Justine, Josephine and Rowan, consistent with our home being at Clachan of Penninghame, we unequivocally reiterate our acceptance of a clear and proper title to our home at Clachan of Penninghame. For the avoidance of doubt, our position has never altered, in that we as a family reiterate our wish to remain here and the right to retain a clear and proper title to Clachan of Penninghame. Our constructive position remains that we have long awaited and expected a clear title to be rightfully transferred to us. Regrettably, as long as those empowered have withheld a clear and proper title from us, and to date not transferred title to us, title is not yet in our name."

She confirmed that she wanted a clear and proper title. No. 6/40 was a letter from Primrose & Gordon, her own solicitors. Mr Pumphrey is named as one of the partners and his reference appears on the letter. It is also addressed to Alex Morison & Co. and starts off:

"We have received a fax from our client dated 15 February stating that we have apparently misrepresented her position and the position of her three daughters to you. In this fax Miss Armstrong states as follows."

There then follows a reiteration of the material contained in the document to which I have just referred. Part of the second paragraph of 6/39 is contained within this. It runs as follows:

"It has been unfortunate on your part to misrepresent me as seemingly refusing to take title to Clachan of Penninghame. Please take immediate steps to remedy the misconceived statements within correspondence falsely stated as coming from ourselves and erroneously reinforced between yourselves and agents for the Judicial Factor in recent communications between yourself and them specifically against my instructions of 2 and 4 February 1999."

The letter goes on:

"There are other aspects of the facts which bear on other issues but it would appear that Miss Armstrong's position now is that she would be prepared to take title to the Clachan of Penninghame. We say 'appears' because we cannot be absolutely certain that she is prepared to take title from the Judicial Factor, although if it is the case that the Judicial Factor will have to be involved in some way in transferring title then it would appear to be the only way she is going to get a title. That is what her fax says she wants.

It is of course unfortunate when agents misunderstand the instructions of their clients and we can only apologise if any misunderstandings have arisen as a result of our misunderstanding our client's position."

She would not accept that this meant that her position had changed. When asked how she interpreted the letter from Mr Pumphrey she said that she did not write it. That was not her position, although Mr Pumphrey might have thought it was. She said that he had been her solicitor on and off between 1989 and 1999. She did not accept that he was comparing her position in 1999 with her previous position when he used the word "now". I asked her who she was complaining about when she mentioned being misrepresented. She said that it must have been Mr Pumphrey. She said that this was all in the context of the farm being sold and her being under pressure.

"In the foregoing circumstances, the decree of 19 December 2001 sanctions the unlawful et separatim ultra vires conduct of the first defender, and falls to be reduced accordingly."

It then goes on to indicate that at the material times in 2001 and 2002 she was suffering from a mental breakdown and unable to give instructions. She referred to the medical reports which I have already mentioned. Mr Govier did not dispute that she had suffered a serious road accident on 24 October 2000. She said that she was unable to give instructions to lawyers. She could not remember if she had said previously that she was unable to instruct lawyers in December 2001. If she had been able to she would have told them about the erroneous basis upon which the action was proceeding, along the lines set out in the Closed Record. The action was served on 26 September 2000 and called on Friday 10 November 2000 but she said she could not remember that. No. 7/1 of process was a copy of the summons which showed that calling date. She said that at that date she was still in intensive care but a perusal of 6/15 of process showed that that was not the case. She had been discharged on 6 November 2000. She hoped that she would not be regarded as an incredible witness because she had mixed up a date. Her daughter Josephine appeared on the calling day or 8 December, or both, as she could not recall. The matter was of no particular significance. In any event, on 8 December the sheriff granted decree. That was appealed to the sheriff principal. She did not know who had filled in the papers for that appeal to go ahead. It was suggested that a diet in the appeal was fixed for 20 March 2001 and she was prepared to accept that. She did not know that it had been continued till 10 May. She said that Josephine should be asked about that because she could not say. It was suggested that Mr Pumphrey appeared on her behalf on that date and her reply was "Did he?" It was suggested that solicitors and counsel do not turn up without getting instructions and she said she did not recall instructing Mr Pumphrey. Perhaps Josephine had done so. She was asked on what basis she would have done that and said that she would have been evicted as well. She did not recall Mr Pumphrey stating a defence on 10 May and had not given him instructions about that. He won the appeal and the case went back to the sheriff.

"Dear Justine,

As explained to you on the telephone a summons has now been prepared and will be served upon Lindsay Forbes on Friday. It may possibly be tomorrow but more likely to be Friday."

The summons was the one in this case. Although she did not know it had been prepared she agreed that it looked as if it had been prepared shortly before 12 December 2001. The second paragraph read as follows:

"Having looked at the Summary Cause Rules the letter from the sheriff clerk is correct and therefore there would be no point in trying to state otherwise. It is not the practice of Dumfries Sheriff Court to issue such a letter - at least not with the final paragraph in it - but technically what the sheriff clerk has said in his letter is unobjectionable and in accordance with the Rules."

The letter from the sheriff clerk was not a production and she had never seen it. She was referred again to No. 7/9 of process. The first paragraph at page 3 read as follows:

"At the diet of 13 November 2001 the respondent was represented by Miss A.C. McGavin, Advocate and the appellant by yet another solicitor a Mr Anderson, solicitor, Dumfries. Upon the cause calling Mr Anderson then stated that he was withdrawing from acting for the appellant. He gave no reasons. In these circumstances the procedure set out in Rule 28 was followed. A diet in terms of that Rule was assigned for 14 December 2001 and intimation of it in terms of the Rule was made by the sheriff clerk upon the appellant personally."

Paragraph 3 of the letter read:

"I have sent a copy of the summons to Mr Cavers in Kirkcudbright and so you need not bother to intimate anything to him. I however am precluded from saying anything to the Sheriff Court directly as we are no longer involved in this action having resigned from the agency."

Paragraph 4 read:

"It is absolutely essential that somebody appears on Friday in Stranraer to (a) explain that a summons has been served which relates to the same subject-matter and (b) explains why it was not possible for Mary to attend on 13 November."

It appeared likely that the Friday would be the Friday of that week, which was probably 14 December 2001. Paragraph 2 of page 3 in 7/9 read as follows:

"At the diet of 14 December 2001 the appellant was now represented by a Mr W. McVicar, solicitor, Dumfries and the respondent again by Mr Cavers, solicitor, Kirkcudbright. Mr McVicar made a submission in terms of Rule 20(2)(b)(ii) to the effect that the appellant could show good cause why she had failed to appear or be represented at the diet of 13 November 2001. Mr Cavers in turn moved for decree by default. In the event, however, I was persuaded on a narrow balance that cause had been shown which could be categorised as good for the failure to appear and refused the motion for decree by default."

It would seem therefore that Mr Pumphrey had been suggesting that someone should appear and Mr McVicar had been that somebody. The last paragraph of the letter read:

"I enclose a copy of the summons herewith. It will not be to your mother's liking. However, for the moment I do not wish to hear her comments on it. I will, however, be more than happy to discuss its contents with either her or you during the course of next week."

"The parties are as designed in the instance. The defender is domiciled in Scotland. There are no other proceedings in relation to the subject-matter of this action and there is no agreement to prorogate jurisdiction. This court accordingly has jurisdiction."

She was asked about the contradiction between the averment that there were no other proceedings relating to the same subject-matter and the contents of the letter, to the effect that someone had to appear to explain that a summons had been served which related to the same subject matter. She had no useful comment on that and said that Justine, her daughter, was dealing with it. She wondered whether the subject matter was in fact the same and she did not know if Mr Pumphrey was dealing with the matter. She said that she had never met Mr McVicar and never gave him instructions. He appeared twice, on 14 and 19 December 2001 and then withdrew. She accepted that he appeared and purported to represent her. He did not have the case sisted. She said that she spoke to him on the telephone telling him that she was unable to give instructions but then she indicated that perhaps it was one of her daughters who did that. She could not recall. She did not give him the instructions which led to his drafting a Minute of Admissions. He could have got the information which lay behind it from someone else. She was living in Glasgow at the time, being looked after by her daughters. Perhaps one of her daughters had instructed Mr Pumphrey or him. Perhaps Mr Pumphrey acted on his own behalf.

"For the avoidance of doubt the house was valued for the purposes of preparing a draft scheme of division. The judicial factor has no intention or need to sell the farmhouse at the moment and hopes that it may be possible for him to give your client title to the farmhouse at its valuation."

That was a letter addressed to Mr Pumphrey. No. 6/46 was a letter from Mr Reid to the pursuer dated 24 May 2000. Inter alia it said the following:

"The judicial factor is now in a position to finalise the affairs of the judicial factory.

I enclose herewith a copy of a draft schedule setting out the possible final position.

The judicial factor has been advised by counsel that the joint minute in your divorce action is not binding upon the judicial factor. Accordingly, if you wish to retain the farmhouse then the valuation thereof will require to be taken into consideration in the final division of the surplus estate between you and your ex-husband. As at 29 February, in addition to the house you were to receive cash of £6,436. This will vary quite a bit depending on what further expense the judicial factor has to incur."

No. 7/5 was a letter dated 5 July 2000 from Mr Reid to the pursuer. Inter alia it pointed out that the writer's understanding was that the pursuer had had Velux windows installed in the farmhouse without the judicial factor's permission and sought an undertaking that she would not carry out any further structural alterations. Paragraph 3 went on:

"We also need to know what your intentions are in respect of the future occupancy of the farmhouse. Having regard to the ongoing increase in legal expenses you are due the Judicial Factor, there is a real possibility now that the amount of your entitlement to the residue of the estate will not be enough to meet the valuation of the farmhouse. We will not be taking any increase in value due to the installation of the velux windows into account, even if their installation has increased the value of the farmhouse. The Judicial Factor may have some work to do to obtain retrospective Planning Permission and Building Warrants and could even be required to remove the velux

windows.

Accordingly, we would be grateful if you would let us know by Thursday 13^th. July whether you are prepared to meet such a shortfall if it occurs."

Mr Govier asked the pursuer to compare the financial position as set out there with the one in the earlier letter. He then turned to paragraph 4 of 7/5. That was in the following terms:

"We also need to know whether you accept that you have to account for the value of the farmhouse in a final accounting of the residue of the Judicial Factory estate between you and your ex-husband.

If you are not prepared to

(a) Give us an undertaking that you will not carry out any further structural work without the Judicial Factor's permission, and

(b) Confirm you will meet any shortfall between what you are entitled to

and the valuation, and

(c) Accept that the value of the farmhouse has to be taken into account in

the final scheme of division between you and your ex-husband

all by Thursday 13^th. July, we would want you to vacate the farmhouse by 31^st. July so it can be put on the market.

I first wrote to you about this on 31^st. May and have had no response at all. Obviously, I am aware that the cottage is your home and the home of your three daughters but we have to make progress to the final winding up of the Judicial Factory and I would prefer to work it out with you and your agents rather than application to the Court, which I am obliged to attempt to make you pay for."

No. 6/47 was a letter dated 14 July 2000 from Mr Reid dated to the pursuer. Amongst other things it said the following:

"In the meantime I note that I have not heard back from you or Messrs Primrose & Gordon in respect of the other outstanding matters of my letter of 5^th. July. I know that you still consult Messrs Primrose & Gordon on some matters but you intend to act on your own behalf on other matters. To be on the safe side, I therefore write to both you and Primrose & Gordon.

Since I have not heard back from you or Primrose & Gordon in respect to the matters raised in paragraph 4(a) to 4(c) the Judicial Factor now requires you and your family to vacate the farmhouse at Clachan of Penninghame by 31^st. July 2000 so it can be put on the market.

If you continue to occupy the farmhouse beyond that date, we consider that such occupation would be in breach of the Interim Interdict pronounced by Lord Clyde on 9 September 1994, a copy of which is annexed hereto. We would require to present a Minute of Amendment updating our pleadings to state what the current situation is and at the same time present a Minute of Breach of Interim Interdict.

I would much prefer if this matter was resolved by negotiations with you or your agents, but if we hear nothing from you or them then we have to proceed without your co-operation."

In fact they did not hear from her and that gave rise to the Sheriff Court action. No. 7/1 was the summons in that action. Paragraph 3 of the statement of claim runs as follows:

"The Pursuer requires possession of said Clachan of Penninghame Farmhouse and the garden ground pertaining thereto for the purposes of selling the same and completing his duties as Judicial Factor foresaid. By letter dated 5 July 2000 from Messrs Morison Bishop, Solicitors, 68 Queen Street, Edinburgh, acting on behalf of the Pursuer certain proposals were put to the Defender. It was indicated to the Defender in said letter that if she did not accept certain conditions she would be required to vacate said property by 31 July 2000. A copy of said letter is produced. The Defender did not agree to said conditions and has not vacated the said property. The Defender has no right of abode in said property. In all the circumstances this action is necessary."

"In January 1993 the HC (Heritable Creditor) took possession of a very different farm from that in December 1986. The JF had vacated taking everything that could be taken or sold. The farm was completely empty, no farm machines, moveables or livestock. Further to that it was left in a deplorable state of repair, broken down buildings, fences and gates almost non-existent, buildings littered with rubbish and dung, slatted shed stocked with solidified slurry the effluent running from the buildings and silage pits, fields barren after crop failures etc. On the whole a very depressed site! I enclose a copy of the report dated 4^th. February 1993. It will be unlikely you have seen this. Photographs can support this if necessary. Geo. Gourlay of GM Thompson, Estate Agents, Dumfries also inspected the property at this time and I am sure he could verify the report.

The HC set about effecting all such repairs and making good such defects as was necessary to maintain the Security Subjects in good and sufficient repair, and effecting such reconstruction, alteration and improvement on the subjects as would be expected of a prudent proprietor to maintain the market value of the subjects. This was done within the severe financial constraint of the Baltersan Farm Account set up by the HC to account for all the intromissions of the HC. During this period under the management by the HC the Security Subjects made a profit, and that profit became available for the Judicial Factory."

In the opinion of the witness the intromissions of the heritable creditor had a beneficial effect on the property. It sold for a very good price in due course. The efforts of the heritable creditor contributed to its nearly doubling in price.

(It should be noted that the sale of the 31 acres is included in 6/6 of process, the accounts to 28 February 2000 under "Estate received from NC Dunlop re Noltan Limited". It amounts to £36,037.81).

"2. The pursuer is the judicial factor on the sequestrated estates of J Dunlop & Sons, Farmers, Baltersan and Clachan of Penninghame, Newton Stewart, conform to interlocutors of the Court of Session dated 11 February 1987. The defender resides at Clachan of Penninghame Farmhouse, Newton Stewart, which forms part of the sequestrated estate.

3. The pursuer requires possession of said Clachan of Penninghame farmhouse and the garden ground pertaining thereto for the purposes of selling the same and completing his duties as judicial factor foresaid. By letter dated 5 July 2000 from Messrs Morison Bishop, Solicitors, 68 Queen Street, Edinburgh, acting on behalf of the pursuer certain proposals were put to the defender. It was indicated to the defender in said letter that if she did not accept the said conditions she would be required to vacate said property by 31 July 2000. A copy of said letter is produced. The defender did not agree to said conditions and has not vacated the said property. The defender has no right of abode in said property. In all the circumstances this action is necessary."

The letter of 5 July was number 7/5 of process.

"Again the question must be asked what "title" did the First Defender "acquire" in terms of the Interlocutor of February 1987? What title did he retain or lose on 6 January 1993 to "re-acquire" at later date? From the deficiencies of that "title acquired" does the First Defender claim no change in the intervening years to qualify for his entitlement to withhold transfer of title to her home at Clachan of Penninghame now?" (sic).

I confess that I do not quite understand that submission.

"To find and declare that the Pursuer is entitled to ownership and occupation of the property at Clachan of Penninghame Farmhouse, Newton Stewart free of any claims by the First Defender as Judicial Factor in virtue of the Joint Minute entered into by the Pursuer and the Second Defender in respect of which decree of divorce was granted by the Court of Session in the action between them on 15 November 1988; and that the First Defender is bound to effect a Disposition of said property in favour of the Pursuer in implement of said entitlement."

It was clear that the pursuer's claim was based on the Joint Minute and indeed she had said as much in evidence. It followed from the fact that she was basing her claim on that Joint Minute that any averments that any other circumstances gave her the rights she sought were irrelevant, even if proved. There were, for example, averments that the farmhouse did not form part of the sequestrated estates. Presumably they were there to support the claim that it should belong to her but she was not insisting on Mr Dunlop's granting her a disposition.

"Cond. 4. Thereafter the parties to said Joint Minute and the first defender proceeded in reliance and in implement thereof. In particular in 1989 the parties hereto entered into correspondence to agree a plan of the property at Clachan of Penninghame Farmhouse for the purpose of the first defender granting a Disposition in favour of the pursuer of said property in implement of her entitlement in terms of said Joint Minute. By letter dated 2 February 1989 Hewats, Solicitors, Kirkcudbright wrote on behalf of their client, the first defender, inviting the pursuer's agents to draft a Disposition. ....

Cond. 5. Thereafter the first defender did nothing to displace his representations and the pursuer's understanding of his position that the Judicial Factory estate made no claim to said property and made no dispute with the pursuer's entitlement to receive a Disposition in her favour. ...

Cond. 6 In reliance on said position the pursuer occupied said property which was dilapidated and carried out improvement works at her expense. The property was over time substantially renovated and its value increased significantly."

Answer 6 contained the following averments:

"Not known and not admitted what works the pursuer carried out, at whose expense and why. Not known and not admitted on what basis the pursuer considered that she was occupying said property. Quoad ultra denied. Explained and averred that the pursuer was allowed to occupy the property whilst the Judicial Factory was proceeding and only until the Judicial Factor was either able to give her title to the property or until he required to sell the property. Further explained and averred that the defender discovered that the pursuer had installed velux windows in Clachan Farmhouse without his permission. Accordingly, his solicitors wrote to the pursuer on 5 July 2000, asking about this and seeking her written confirmation that she would carry out no further structural alterations to the farmhouse without seeking the defender's permission. The pursuer did not reply to that letter. That letter is produced herewith and referred to for its terms which are held to be incorporated herein brevitatis causa."

[242 That letter was 7/5 of process.

[244 There had been no evidence about any improvement works or any increase in value. It was impossible to see how the pursuer could claim that her occupation of the property rent free had been in some way to her detriment.

"Where A has by his words of conduct justified B in believing that a certain state of facts exists, and B has acted upon such believe to his prejudice, A is not permitted to affirm against B that a different state of facts existed at the same time."

"Held (1) that it was essential to the doctrine of personal bar that the defender should have been induced to act and change his position by his reasonable belief that the pursuer was consenting, and in the present case the defenders accepted that they had used the name 'Grant' because they believed they were entitled to do so, not in reliance on a belief induced by the pursuers."

"But there is another, equally important, reason for repelling the defenders' plea. As I highlighted in paras 27 and 28, the defenders invoke the plea of acquiescence, not to bar an action of damages by the pursuers for loss suffered due to the defenders' completed acts of passing off, but in order to bar the pursuers' conclusions for interdict against acts of passing off which the defenders will commit in the future. In Earl of Kintore v Pirie & Sons Ltd at pp. 838-839, Lord Kyllachy went so far as to say that acquiescence could never have this effect: 'Now, I am not aware that the doctrine of acquiescence - taken at its widest - has ever been applied to a case of this kind. Acquiescence may bar objection to what is past - to what has been done. But it can never, so far as I know, establish directly or indirectly a continuing and perpetual right. I may have allowed my neighbour, it may be for years, to draw and to use, say, my share as well as his own of a certain stream or of a water supply; but I may resume my own share at my pleasure. Nor will it, I suppose, be a bar to my doing so, that my neighbour has, relying on my continued consent, spent money, say, in enlarging his mill or in taking water into his house. And similar illustrations may be readily figured. The truth is that, to serve the defenders' purpose, what they call acquiescence would require to be something of the nature of an agreement."

"The fact that the provisions of sub-ss (3) and (4) set up a form of personal bar has two important consequences. In the first place, where those provisions apply they operate as a defence available to the first person; they prevent withdrawal from the contract, obligation or trust in question, and the contract, obligation or trust is not to be regarded as invalid. Those sub-sections do not, however, make any claim or positive right available to the first person. According to the classic metaphor, they operate as a shield rather than a sword."

"18. It was only in 2003 after the action by the Defender against me, before Lord Drummond Young and the Appeal Court, that solvency became an issue, yet the Defender was insolvent in 1992. Following the sale of Clachan of Penninghame lands, the house was not listed in the factory accounts. Although we have heard the evidence from the First Defender to the effect that this was simply an accounting error and an oversight on his part, in light of the terms of the Joint Minute, the representations made to the Pursuer since 1988 that the house would not be sold, and the time period that had passed during which she and her daughters continued to live in the house at Clachan of Penninghame, the absence of any reference to the house at Clachan of Penninghame in the annual factory accounts only served to reinforce the Pursuer's understanding of the position, that she and her daughters had the right to remain in their home, to live there and occupy the house at Clachan of Penninghame, and that this would at no stage form any part of the Judicial Factor's purported accounting, past, present, or future. ...

20. Throughout this whole period, from 1988 to 1999, it is reasonable to say that in legitimate expectation, that the Pursuer would receive title to the house at Clachan of Penninghame as a result of having entered into the Joint Minute, a legitimate expectation had been created by the First Defender. As a result of the Joint Minute entered into divorce and the position adopted by the First Defender immediately following this, a position which in terms of representations made to the Pursuer over the course of the next 9 years, never changed, there was nothing to suggest anything other than that the Pursuer would receive title to the house." (sic)

"That the remedy of reduction may be competent to set aside a judgment, when other means of review are not, is true. Instances can be found where it has been so utilised, but it is a remedy which does not exist of right, and must be most carefully applied. I shall not attempt, for I think such attempt would end in failure, to define categorically the cases in which reduction is competent. One obvious instance would be where a judgment had been obtained by reason of some fraud practised on the court; but, generally speaking, it is certainly not competent when other means of review are prescribed, and these means have either been utilised or the parties have failed to take advantage of them".

He also referred to the speech of Lord Carson at page 67 as follows:

"The appellants have already, prior to the appeal to this house, appealed against the judgment of the Sheriff to the Court of Session, and that appeal failed, because, in accordance with the rules of procedure which have the force of statute, no shorthand notes of the proceedings had been taken - a course which was adopted in accordance with the wishes of the pursuers and the defenders. It is evident, therefore, that the appellants can only succeed if they are able to establish that there was such a miscarriage of justice as renders the whole proceedings fundamentally null."

"So far as reduction of the sheriff's decree under conclusion 2 is concerned, counsel for the defenders submitted that reduction of the decree was not competent since other means of review had been provided and had either been initiated or parties had failed to take advantage of them. He referred to Adair v Colville & Sons. In that case Viscount Dunedin said (at 1926 SLT p.592): 'but, generally speaking, it is certainly not competent when other means of review are prescribed, and these means have either been utilised or the parties have failed to take advantage of them'. Counsel submitted here that since appeal against the sheriff's interlocutor had been competent and the pursuer had utilised the appeal procedure, it was thus not competent for him now to seek reduction. In our opinion however, it is important to observe that in the passage which we have quoted from Viscount Dunedin, he prefaced his remarks with the words 'generally speaking'. The use of these words must mean that there are exceptions to the rule which he was propounding. Indeed in his speech Viscount Dunedin was at pains to point out that it was not possible to define categorically the cases in which reduction was competent. He also stressed the importance of there being a miscarriage of justice if reduction was to be justified: 'But of this I am certain that, unless a miscarriage of justice is affirmatively and clearly shewn, there is no room for reduction'. (p.593). Likewise in the same case Lord Carson makes it plain that reduction will be competent if the pursuer can 'establish that there was such a miscarriage of justice as renders the whole proceedings fundamentally null'. (p.599). In our opinion that is just the sort of case which the pursuer in the present case is seeking to make. He has averred that in pronouncing the interlocutor of 9 October 1985 which is sought to be reduced, the sheriff acted ultra vires of his powers. Those averments of the pursuer are admitted by the defenders. Accordingly by admission of the parties this is a case where the pronouncing by the sheriff of the interlocutor in question was ultra vires; it must therefore have constituted a miscarriage of justice which rendered the whole proceedings fundamentally null. In our opinion, it is incorrect to read the dictum of Viscount Dunedin as meaning that reduction will never be competent where other means of review have been prescribed, and these means have either been utilised or parties have failed to take advantage of them. It is, in our opinion, well established that a decree may be reduced in exceptional circumstances if reduction is necessary to produce substantial justice."

"It is also open to the party to bring a reduction of the decree on the ground that it was obtained through inadvertence, in which case the Court, although it will require a strong statement of facts to support such an application, has the power to award substantial justice."

It is, of course, recognised that the remedy of reduction will not be allowed if the pursuer has failed to utilize other means of redress open to him... In the present case there is no question of the pursuer having failed to appeal timeously against the decree of 22 November 1977 because it is clear that the pursuer was wholly unaware of the decree until the sheriff officers called in July or August 1978. At the same time, when considering whether or not reduction is competent, it is necessary to consider whether the pursuer had a substantial defence to the action in which decree has been pronounced (J & C Black (Haulage) Limited v Alltransport International Group Ltd). There would be no point in reducing the decree and so allow the original action to proceed, if the pursuer (as defender in that action) had no substantial defence to the claim made that action. From the foregoing authorities, it appears to me to be clear that in a case like the present one where a solicitor has consented to decree without the authority of his client, it is a matter of discretion whether or not the decree should be reduced. In exercising that discretion, the aim is to produce substantial justice; if allowing the decree to stand would produce a miscarriage of justice then the decree should be reduced, whereas the decree should be allowed to stand if it would be contrary to justice to reduce it. Moreover when considering whether or not to exercise its discretion so as to reduce the decree a very important consideration for the court must be whether the pursuer had a substantial defence to the original claim. On that issue, I did not understand it to be disputed that the pleadings in the sheriff court action revealed no statable defence. Counsel for the pursuer, however, maintained that the real defence to the claim was that the action had been settled extra-judicially by agreement between the pursuer and Mr Charles Patttison. Normally, a defence on that ground would require to be put forward in the sheriff court and determine there... Counsel argued strongly that whether or not the defence that the claim had been settled by agreement of the parties could be established could only be determined in the sheriff court action. In the present case, however, the pursuer attempted to establish before me that there had been an agreement to settle extra- judicially, and as already indicated he failed to establish any such agreement. That being so, it appears to me that the pursuer has failed to establish that he has a statable defence. Where reduction is being sought in similar circumstances, it will normally be enough for the pursuer to aver that he has a statable defence. In the present case, however, the matter does not stand merely upon averment. Evidence has been adduced before me regarding this alleged defence of settlement, and it has been demonstrated that the defence which it is proposed should be put forward in the sheriff court is one which the pursuer would be unable to establish. In that situation, I did not see that justice requires but the pursuer should be given a second chance to establish this defence in the sheriff court."

"It has always been recognised by the Judicial Factor that the property in question is owned by the Defender. The Pursuer has no title to recover it for that reason."

Res Judicata
[307] Mr Govier submitted that this would be relevant if I refused to grant decree of reduction. If so, the decision in foro in the sheriff court would stand and given the terms of that decision and the terms of the declarator which was sought the plea would come into play.

"2. The Pursuer is the Judicial Factor on the sequestrated estates of G Dunlop & Son, Farmers, Baltersan and Clachan of Penninghame, Newton Stewart, conform to interlocutor of the Court of Session dated 11 February 1987. The Defender resides at Clachan of Penninghame Farmhouse, Newton Stewart, which forms part of the sequestrated estate.

3. The Pursuer requires possession of said Clachan of Penninghame Farmhouse and the garden ground pertaining thereto for the purposes of selling the same and completing his duties as Judicial Factor foresaid.... The Defender has no right of abode in said property..."

"A medium concludendi is a ground of action either in law or in fact. 'The validity of a plea of res judicata must necessarily depend upon the pleadings and decision in the previous action and not upon any rights or equities which may have arisen antecedent to the pleadings or from any extrajudicial communications between the parties. The question always is - what was litigated and what was decided'. The manner in which this question could be solved is 'to read the whole of the record in each case - summons (or note), averments and pleas - and grasp the substance of each, and then compare the two.'"

"In the case of James M Sutherland & Sons v Pottinger 1989 SLT 679, it was held that success in the sheriff court action in that case would not afford the pursuers the remedies sought in the Court of Session action and that the pursuers must therefore be entitled to proceed with the action at their own instance. In our case, success in the sheriff court action would only have put a stop to the action of recovery of possession. It would not have confirmed our right to the ownership and occupation of the house, as is sought in this action."

"Counsel for the pursuers submitted, first, that the issues were not identical, and, secondly, that, even if they were, the plea of lis pendens could not succeed unless it was shown that it was equitable to sustain it.... The question in the sheriff court action was not simply whether Pottinger's actions were justifiable but whether Sutherland & Sons were to be interdicted upon various grounds including trespass, the existence of a servitude right, and interference with Pottinger's drainage. The question of nuisance also arose and so did the question of the position of the boundary between Sutherland & Sons' lands and those of Pottinger. In the Court of Session action, the question was whether Pottinger should be interdicted on the ground of nuisance and also on the ground of delict. The question of the existence of a servitude was raised but so also was the question of liability to pay damages. That was not an issue in the sheriff court action. In my opinion, the pursuers' submissions should be upheld. In Wilson v Junor a solicitor raised an action against a client for a sum alleged to be due on a proper accounting. The client had previously raised an action against the solicitor in the sheriff court and this was also an action for an accounting and payment of a sum due. It was held that the plea of lis pendens could not succeed because, even though the solicitor alleged in his defence to the client's action that, on a proper accounting, the sum claimed in the Court of Session action was due to him, he could not obtain decree for that sum in the sheriff court action, and he was therefore entitled to raise an action on his own account in order to have his claim constituted. Similar reasoning applies, in my view, in the present case. Even if Sutherland & Sons defeat Pottinger's claim for an interdict in the sheriff court, that success will not have itself give them the protection of the interdict which they seek in the present action, and they must, in my view, be entitled to proceed with an action at their own instance to obtain interdict to protect themselves. Similarly, they are, in my view, entitled to raise an action to recover the loss claimed by them, this not being an issue raised in any form in the sheriff court action. Further, although many of the legal and factual issues in dispute are common to the two actions, the issue of negligence, which is raised in the Court of Session action, does not figure in the sheriff court action".

"The media concludendi are not the same unless the specific point raised in the second action has been directly raised and decided in the first. An unsuccessful pursuer has a right to raise a further action against the same defenders relating to the same subject matter, provided that the second action is based on different grounds. Whether the media concludendi are the same will appear from a study of the pleadings and decision in the previous action: the court looks at the essence and reality of the matter rather than the technical form and considers the question, what was litigated and what was decided".

[328] I asked Mr Govier to address me on the case of Hynds v Hynds 1966 SC 201. In that case a wife raised an action of separation and aliment on the ground of cruelty in the sheriff court and the husband was assoilzied of consent. She then raised an action for divorce averring more or less the same acts of cruelty. The husband pleaded res judicata. Lord Cameron held that as decree in terms of the crave of the first action would have left intact the matrimonial tie, while decree in terms of the conclusion of the second would break it, the subject matter of the actions was not the same and the plea was repelled. Incidentally that case is authority for the view that provided the necessary conditions are fulfilled a competent decree in the sheriff court is res judicata in the Court of Session. At page 203 his Lordship said the following:

"For the defender, Mr Cameron in his careful speech argued that not only were the parties the same, but that both subject matter and media concludendi are identical. If the test laid down by Lord Kinnear in Edinburgh & District Water Trustees v Clippens Oil Co., Limited, (1899) 1F 899, is applied, then the answer to the question of what was litigated and what was decided could only be that it was the question of the defender's cruelty that was litigated, and the decision was that he was absolved from the charge of cruelty, and therefore, counsel maintained, his plea must be sustained. But I think this is to simplify the matter too much, and I do not think it covers the issues to be isolated and determined. There must be identity of subject-matter as well as identity of media concludendi and the two are obviously not the same nor do they refer to the same thing. I think however that defender's counsel was correct in his submission that the grounds of action or media concludendi are the same in both actions, because the ground on which the conclusions of the summons and the crave of the writ were based were the same: in both actions the grounds are cruelty and, as I have already indicated, based upon substantially the same items. The question of subject-matter is very different. What was the subject-matter of the earlier action as opposed to the grounds of action or media concludendi? In my opinion it was the right of the pursuer to obtain protection and support for herself by means of a decree of separation and aliment leaving intact the matrimonial tie, the status of the parties not being in issue. In the present case the subject-matter is the right of the pursuer to break the matrimonial tie and to change her status with consequential rights against the defender's estate. I do not think that it alters the position that the point to be decided in evidence may be the same i.e. has the defender been guilty of cruelty in law towards his wife. This is well illustrated by the case of Leith Dock Commissioners v Miles (1866) 4 Macph. (H.L.) 14. I think that some help may be obtained from a consideration of the case of Wilson v Dunlop, Bremner & Co., Ltd 1921, 1 S.L.T. 35 cited by the defender in support of his argument on the plea of res judicata. In addition to a plea of res judicata the defender in that case pled lis alibi pendens. The Lord Ordinary (Lord Anderson) in refusing to sustain the latter plea said: 'But the point which is fatal to the defender's contention is this, that the two actions do not raise for determination precisely the same question; on the contrary they raise questions which are entirely different. In the Sheriff Court action the legal ground relied on was Bremner's breach of his alleged contract with the pursuer to allot or have allotted to him shares in the new issue. In the present action he is sued on an entirely different ground, to wit, quasi delict. The question for determination in the present case is this: Has Bremner violated his trust? In the Sheriff Court action the question for determination was: Had Bremner broken his contract? New questions raised in this action with which the earlier case was not concerned, are ...' Therefore the lis in the Sheriff Court action was different from that in the Court of Session. In Stewart v Stewart 1906 8 F. 769, it was held competent to bring in the Court of Session simultaneous actions for separation and divorce pending upon the same ground of action and that the plea of lis alibi pendens would not lie. These authorities, and particularly the latter case of Stewart, seem to me to support the view that a difference in the character of the lis or the matter to be litigated, even if the media concludendi are identical, is sufficient to differentiate the subject-matter of the proceedings between the parties and to prevent them being regarded as identical. Another illustration of difference in the character of the lis as between an action of separation and one for divorce is to be found in Stevens v Stevens (1882) 9 R. 730. In that case it was decided that a judgment in an action of divorce for desertion in which a wife was held entitled to live apart from the pursuer because of his cruelty could not be used as proof excluding a relevant defence in a subsequent action for separation on the ground of the husband's cruelty. Lord Fraser's opinion draws particular attention to the difference in effect between a decree of divorce and one of separation as a further reason for rejecting the pursuer's contentions - in effect, pointing to the difference in subject-matter of the two litigations. In MacKenzie v MacKenzie 1930 SLT 439, Lord Mackay refused to accept evidence in a previous undefended action of separation and aliment for adultery as evidence in a subsequent action of divorce between the same parties. These cases however are the converse of the present.... Having regard to the differences in the nature of the rights which are in dispute in the two actions, to which I have already drawn attention, and the marked differences in the remedies sought and their effects if granted, I think there is no identity of subject-matter between the two actions here."

"The point to be determined in the present action was not determined by the judgment in the divorce action, and the husband is now entitled, when he is put upon the defensive, to vindicate himself by adducing other and additional evidence - if he possesses it - than what he was able to produce in the action of divorce."

pursuer on the fourth page but not witnessed or adopted as holograph. There was no evidence about any actings by Mr Dunlop which might give rise to any question of rei interventus or homologation. Given that, while the first point was maintained, the document was not even binding on the parties to it.

"38. There is no precedent for this case, neither legislation nor case law which can be used to show that the powers of a Judicial Factor in the circumstances should defeat the terms of the agreement reached between myself and my ex-husband.

39. The closest analogy that is used is the position under trust law. Regarding the principles of trust and whether the Judicial Factor has a duty to implement an agreement between the former partners, I would say that from what I understand the position under trust law to be, that I have a legal right to a conveyance of the farmhouse at Clachan of Penninghame from the defender on the basis of the principle of trust law set out and explained in Miller's Trustees v Miller... and Yuill's Trustees v Miller... Whilst the judicial factor has tried to argue on previous occasions that the principle expressed in those cases could have no application to a situation where the sequestrated estates of a partnership are held, and are in the process of administration, by a judicial factor, I can see no reason why the principles should not apply. This is not simply a straightforward sequestration case. Instead it is a case in which the principles of family law became overshadowed by the involvement of a Judicial Factor.

40. The right of vesting as set down in Miller's Trustees and supported by Yuill's Trustees, could only be restricted where there are other ulterior trust purposes to be served which necessitate the retention of the estate in the hands of the trustee. While the payment of creditors may be a trust purpose, surely the payment of debts since incurred due to the delay of the trustee in dealing with matters, in this case the delay caused simply by following the objection of the previous Second Defender to the transfer of the property, is not a trust purpose as such? There were numerous occasions when there were no other trust purposes to be met and at which time the Judicial Factor was solvent, therefore there was nothing to restrict title being transferred. The meeting of costs incurred during a period in which the previous Second Defender was allowed to stand in the way of title being transferred, should not be regarded as a true trust purpose, for the purposes of disapplying the principles in Miller's Trustees and Yuill's Trustees. The Judicial Factor has based his refusal to transfer title on his belief that the further consent of Michael Dunlop is required. Whilst Michael Dunlop later confirmed that he is quite happy for title to be transferred, this only came at a stage by which the financial position of the factory was then used as an alternative reason for not giving effect to the Joint Minute. Such a position should not be used to prevent the application of the principles set down in Miller's Trustees and supported by Yuill's Trustees, particularly given the expectation which was created right up until the year 2000, that title was to be transferred on the basis of the agreement entered into between myself and my ex-husband."

"There is, in my opinion, a general rule, the result of a comparison of a long series of decisions of this Court, that where by the operation of a testamentary instrument the fee of an estate or parts of an estate, whether heritable or moveable, has vested in a beneficiary, the Court will always, if possible, relieve him of any trust management that is cumbrous, unnecessary, or expensive. Where there are trust purposes to be served which cannot be secured without the retention of the vested estate or interest of the beneficiary in the hands of the trustees, the rule cannot be applied, and the right of the beneficiary must be subordinated to the will of the testator. But I am not aware of any case in which the mere maintenance of a trust management without any ulterior object or purpose has been held to be a trust purpose in the sense in which I have used that term."

"At worst, the financial position of the factory was one of doubtful solvency. In that event, however, it appeared to me that the pursuer should be given an opportunity to provide the necessary funds to ensure the solvency of the judicial factory."

[351] I cannot see any other averments which should go to personal bar based on representations made by the judicial factor and the pursuer's acting in reliance thereon to her detriment. Such averments as there are are vague and quite insufficient in the circumstances to allow me to entertain such a case.