EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Reed Lord Carloway	[2009] CSIH 48 Case Reference: A205/04 OPINION OF THE COURT delivered by LADY PATON in the cause MRS JOAN PENTLAND-CLARK Pursuer and Reclaimer; against PATRICK COLLINGE GRAVATT WILSON and others Defenders and Respondents: _______

Pursuer and reclaimer: Party

First, second and third defenders and respondents: Clark QC, Balfour & Manson

Fourth defender and respondent: Connal QC, Solicitor-Advocate, McGrigors

Fifth and sixth defenders and respondents: R. Dunlop, Brodies

11 June 2009

Introduction

[1] The pursuer sues six defenders, averring maladministration of the executry estate of her late former husband James Clark to such an extent that there are currently no funds available to pay the monthly maintenance to which she is entitled following her divorce settlement in 1977. A debate on the relevancy of the pleadings took place in June 2006. By interlocutor dated 29 September 2006, the Lord Ordinary dismissed the action as irrelevant. The interlocutor per incuriam omits to mention the fifth and sixth defenders, but it is clear from the judgment that the intention was to dismiss the action so far as directed against all the defenders.

[2] The pursuer reclaimed. The fifth and sixth defenders cross-appealed in relation to the omission in the interlocutor. The reclaiming motion was heard in November 2007 by a bench chaired by Lord Macfadyen. Regrettably Lord Macfadyen's death when the case was at avizandum resulted in a re-hearing before this bench.

The defenders and respondents

[3] The first and second defenders were the executors administering the estate until removed from office by the Court of Session on 27 May 1999, at which time a judicial factor was appointed. The first defender had been assumed as an executor by Deed of Assumption dated 13 December 1985, the second defender by Deed of Assumption dated 13 and 21 June 1991. The third defender is a partner of the former firm of J & G Wilson, Solicitors, Kinross, whose deceased partner John Simpson Wilson ("Jack Wilson") was an executor from 1985 until his death on 27 May 1991. The fourth defender ("Anne Clark") is the second wife and widow of the testator James Clark, and was an executor for a period following his death in 1985 until her resignation on 25 August 1986. The fifth defender was appointed as interim judicial factor to the executry estate on 27 May 1999, and confirmed as judicial factor on 8 November 2000. He remained in office until his death on 18 July 2006. His widow has been sisted in his place. The sixth defender was employed by the late judicial factor as his law agent.

[4] Thus a chronology relating to those in office as executors is as follows:

5 December 1985: James Clark died, leaving a will nominating Jack Wilson and Anne Clark as executors.

13 December 1985: the first defender was assumed as a third executor.

25 August 1986: Anne Clark resigned as executor, leaving the other two executors in office.

27 May 1991: Jack Wilson died, leaving the first defender as the sole executor.

21 June 1991: the second defender was assumed as executor.

27 May 1999: the first and second defenders were removed from office, and a judicial factor was appointed.

Background relating to the executry estate

[5] The pursuer was born on 18 September 1935. She married James Clark, a farmer. They had four children. They were divorced in 1977, some five years before James Clark met and married his second wife Anne Clark. Part of the pursuer's divorce settlement comprised a Minute of Agreement dated 7 October 1977, providing inter alia:

"(Second) The husband and his executors shall pay to the wife for her maintenance until her remarriage or death but in any event, if the wife shall remain in life, for a minimum period of five years commencing with the date upon which decree of divorce is pronounced that sum which will, under deduction of the standard rate of tax then prevailing, produce TWO THOUSAND FOUR HUNDRED POUNDS (£2,400) sterling net per annum. The husband will account to the Inland Revenue for the tax which falls to be deducted ...

(Fourth) The sums payable by the husband to the wife as maintenance for herself and aliment for the said children shall be paid monthly in advance by banker's order the first payment falling due on the date of divorce. The gross sum payable by the husband, being the sum before deduction of tax and calculated in terms of Clauses Second and Third hereof, shall be increased on each anniversary of the decree by such proportion as the Retail Price Index shall have increased compared to the Retail Price Index at the date of decree of divorce."

Following upon the divorce settlement, the pursuer received maintenance payments in terms of the Minute. However there were periods of non-payment, as described below. The maintenance payments adjusted to reflect the Retail Price Index currently amount to about £14,640 per annum.

[6] On 20 November 1985, James Clark executed a will in the following terms:

"I, James Clark, farmer, residing at Nether Pitlochie, Gateside, Fife, being desirous of settling the succession to my means and estate after my death hereby assign, dispone and bequeath my whole means and estate equally among my wife [Anne Clark] and my three children or such of them as shall survive me: and I appoint John Simpson Wilson [Jack Wilson] ... and my said wife to be my executors with fullest powers regarding the administration of my estate, including power to charge the usual professional remuneration: And I revoke all former testamentary writings executed by me ..."

[7] James Clark died on 5 December 1985. A few hours before his death, he signed certain documents described as an agricultural lease to, and a partnership agreement with, Anne Clark. The pursuer challenges the validity of those documents. For example, in relation to the lease, she avers that (i) by letter of undertaking dated 22 October 1954 James Clark bound himself and his heirs not to grant a lease over the farm and lands of Leckiebank without the consent in writing of his creditor the Clydesdale Bank, yet there was no such written consent; and (ii) the relevant farms had been disponed to the Clydesdale Bank in security of loans, and accordingly only the bank could grant a lease. The pursuer also challenges further transactions following upon the lease and partnership agreement: for example, a waygoing agreement in 1989 whereby Anne Clark received substantial sums of money in exchange for her undertaking to remove from Leckiebank Farm to enable it to be sold. The pursuer's position is that Anne Clark had no legitimate right to occupy the farm and was not accordingly entitled to those payments.

[8] The pursuer offers to prove that those questionable transactions were only some in a series of such transactions by which lawyers administering the executry estate, and Anne Clark, denuded the estate to such an extent that it became unable to pay the maintenance payments due to her in terms of the divorce settlement. The pursuer also offers to prove that there was in effect a scheme to withhold information from her and her children, and to carry out transactions and make payments for the benefit of Anne Clark to the prejudice of the estate, the pursuer and the children. One example of the withholding of information could be found in a memorandum of a meeting prepared by one of the first executors (Jack Wilson, now deceased) which contained the following entry:

"6. Mrs J Pentland-Clark and children: can we send lease and partnership agreement for perusal. Better to confuse them with main facts."

[9] The pursuer and her children sought legal advice on many occasions. Early in the executry, in July 1986, the children raised a petition for the removal of the executors and for the appointment of a judicial factor to the estate. In the event Anne Clark resigned as executor on 25 August 1986. The executry estate continued to be troubled by disputes and litigations over the years, as illustrated in Clark v Clark's Executors 1989 SLT 665 (where the judge described Anne Clark in her capacity as executrix as being auctor in rem suam) and Sarris v Clark 1995 SLT 44. In August 1994, the pursuer's children raised an action against the executors, which led to a mediation culminating in a Minute of Agreement dated October 1997 whereby Anne Clark and the children settled certain disputed issues. However the pursuer was not a party to the mediation. She had been concerned over the years to ensure that she received payment of the maintenance due to her in terms of the divorce Minute of Agreement. Her maintenance payments had ceased on James Clark's death, but eventually recommenced in December 1987 when the pursuer received a lump sum representing about 24 months of arrears. Payments stopped again in March 1999, at which time the pursuer petitioned the Court of Session for the appointment of the fifth defender as judicial factor ad interim to the executry estate, for sequestration of the estate, and for removal of the first and second defenders from office as executors. The pursuer was successful in her petition, all as set out in the interlocutors of Lords Maclean and Dawson dated 23 March and 27 May 1999. The judicial factor's appointment was made permanent by interlocutor of Lord Eassie dated 8 November 2000.

The first judicial factory: 1999 to 2006

[10] In terms of the interlocutor dated 27 May 1999, the judicial factor was directed to:

"receive representations from [the pursuer] and any other interested party and to investigate transactions effected in respect of the executry estate and to report on possible action to restore the estate to solvency ..."

The judicial factor duly received representations, investigated transactions, and issued a report dated 11 October 2000. The report is incorporated into the pursuer's pleadings in Article 4 of Condescendence. The report noted inter alia:

"10. Administration of the Executry

At the outset the conduct of the administration of the Executry was unsatisfactory. The Executors failed to act in a proper and equitable manner. In brief:-

1. There was a deliberate refusal and delay in providing detailed information to those advising the children until about September 1986 when an Undertaking was given before the Court by the Executors to keep the children fully informed. (see paragraph 11.1 (i) hereof)

2. By letter dated 10 January 1986 Patrick Wilson wrote to the Chairman of the Clydesdale Bank requesting that the Bank accept the partnership and lease which was voidable at the instance of the Bank. In the letter Patrick Wilson makes reference to the fact that the partnership was formed first, the lease second and the Will third. This was incorrect, when in fact the Will was made first. The Executors should not have taken any steps to attempt to alter the status quo following the death of James Clark as any alteration in favour of Mrs Anne Clark as tenant would prejudice the children as residuary beneficiaries.

3. On 11 March 1986 the Executors (one of whom was Mrs Anne Clark) agreed to pay Mrs Anne Clark as an individual, 40% of the net proceeds of sale of Leckiebank without professional advice and without, it is alleged, proper regard to the circumstances.

4. Mrs Anne Clark continued as an Executor until August 1986 whilst she had a material conflict of interest between her position as a Tenant under the Lease and as a residuary beneficiary.

5. The Executors (one of whom was Mrs Anne Clark) assigned the missives of Leckiebank to Mrs Clark, which Assignation was subsequently reduced by the Court.

6. The Executors entered into a letter of waygoing with Mrs Anne Clark on 5 September 1989 without making some positive arrangement for payment for occupation of the farms.

The Judicial Factor considers that the foregoing examples led to mistrust between the children and the Executors as a result of which a number of court actions were raised...........

19. Claim by Mrs Pentland-Clark

[The Judicial Factor outlined certain details relating to the pursuer's claim and continued:]

If an Executor, in the knowledge that there are outstanding debts, chooses to distribute the estate to the beneficiaries, he may be made personally liable to an unsatisfied creditor unless such creditor has consented to the payment or by his own conduct is personally barred from objecting to the Executors' actings. Heritable Securities Investment Association Limited v Miller Trustees (1893) 20R 675......

20. Funds in Hand as at 9 October 2000

.....Deficit (£80,345.52)

The Judicial Factor has written to Mrs Anne Clark and the children enquiring if they are willing to repay to the estate such sum as may be necessary to enable a suitable payment to be made to Mrs Joan Pentland-Clark in settlement of her claim. Mrs Anne Clark has made no substantive reply. The solicitors for the children have intimated that the children are not willing to make any payment.

21. The Judicial Factor has been instructed by the Interlocutor of 27 May 1999 to report on possible action to restore the estate to solvency. The Factor proposes to your Lordships that a payment be sought from the Executors, Charles William Pagan and Patrick Collinge Gravatt Wilson, as individuals, jointly and severally of such sum as is necessary to restore the estate to solvency.

The reasons for this are:-

1. The Executors have a duty not to distribute the estate without settling with all the creditors of the estate. The Executors were well aware of this duty. They have lodged a Petition for directions seeking the authority of the Court to distribute the estate without retention to meet any possible claim from Lloyds (which is also a contingent claim).

2. The actuarial value of Mrs Joan Pentland-Clark's claim as at the date of death of the deceased was included as a debt in the Inventory of his estate and was accepted as such by the Capital Taxes Office. A sum for the capital value of Mrs Pentland-Clark's claim was included as a liability in Messrs Pagan Osborne's Accounts from 5 April 1995 onwards.

3. The Executors, although they knew from about October 1997 that the funds in the estate would be insufficient to meet the claim by Mrs Pentland-Clark they failed to take steps to recover payments totalling £204,000 made to the residuary legatees in 1990, although a court action was drafted for this purpose.

4. In the settlement of the court action by mediation referred to in Paragraph 11 (7), on the explanation given to the Judicial Factor, the Executors permitted £145,000 to be paid directly to the children rather than to the estate. In addition, the Executors also acknowledged in the Agreement "that no further sums are due to the executry estate by any beneficiaries for any reason whatever (including without prejudice to the foregoing generality, any sum due by Anne Clark in respect of rent for or their fruits of occupation of the farms of Pitlochie and Leckiebank)", thereby depriving themselves of the right to recover payments already made to the beneficiaries. It should be noted that there was no exception made in the Agreement for such payments.

Your Reporter is not able to advise on the precise sum which will be required to restore the estate to solvency as a number of outstanding claims cannot be quantified at present."

[11] In April 2002, the pursuer assigned her rights in and claims against the executry estate to Martin Frost and Andrew McNamara. She then decided to reclaim her rights, but was not re-invested in those rights until 6 February 2004, when Mr Frost granted a retrocession of the assignation, and Mr McNamara waived any rights which he had in terms of that assignation. During the period when Mr Frost and Mr McNamara had the claim against the estate, the judicial factor considered that he was unable to make any maintenance payments to the pursuer. Despite that, the pursuer in October 2003 raised an action (A1642/03) against the judicial factor and his law agent for payment of arrears of maintenance. The judicial factor for his part raised an action in December 2003 (A1767/03) against the executors (the first and second defenders) seeking declarator and payment of £175,000 on the ground that the executors had made certain payments "disabling the estate from meeting its obligations" to the pursuer. He then sisted that action. In February and March 2004 the judicial factor, having received notice of the retrocession and waiver by Mr Frost and Mr McNamara, paid the pursuer arrears of maintenance and interest amounting to over £70,000. The pursuer had to meet the expenses of her action (A1642/03) on the ground that it was premature: Pentland-Clark v Macfie and Innes, 21 May 2004, Lord Hardie.

[12] The pursuer was informed by letter from the sixth defender dated 11 March 2004 that the judicial factor did not intend to proceed with the sisted action (A1767/03), due to lack of funding. She accordingly raised the present action (A205/04) as a party litigant, and included the judicial factor and his agent as fifth and sixth defenders. The action was signetted on 19 March 2004, and called on 15 April 2004. Maintenance payments resumed, but in November 2005 they again ceased. By that time there were no funds left in the executry estate with which to continue making the payments to which the pursuer was entitled. The sixth defender so advised the pursuer by letter dated 11 October 2005.

[13] A legal debate in the present action was set down for eight days in June 2006. On 4 April 2006, two months before the debate, the pursuer sought to amend her pleadings in terms of a six-page Minute of Amendment no.38 of process. That minute sought inter alia to add new conclusions for declarator that the alleged agricultural lease dated 4 December 1985 was void and that it was a gratuitous alienation; for production and reduction of the alleged contract of co-partnership dated 4 December 1985 between James Clark and Anne Clark; and for production and reduction of the Minute of Agreement of October 1997 (the culmination of the mediation process involving Anne Clark and the pursuer's children). In her Minute of Amendment, the pursuer sought to introduce new averments that James Clark was of unsound mind before his death, and that undue influence had been exerted upon him. The pursuer's motion to amend was continued to the diet of debate, and was then refused by the Lord Ordinary, who explained in paragraph [5] of her opinion:

" ... I had no hesitation in refusing the motion [to amend] because it was far too late, raised new matters, the form of the Minute was lacking in focus and relevancy and potentially affected the interest of persons who were not parties to the action."

[14] The judicial factor died on 18 July 2006 while the case was at avizandum. As already noted, the Lord Ordinary dismissed the action by interlocutor dated 29 September 2006. By the time of the rehearing of the reclaiming motion in January 2009, arrears of maintenance amounted to about £56,000.

The pursuer's present action and her appointment as judicial factor

[15] Significant developments occurred following upon the debate before the Lord Ordinary in June 2006. One was the appointment of the pursuer as judicial factor to the executry estate by interlocutor of Lord Glennie dated 13 March 2007. Once appointed, the pursuer took over the action against the executors (A1767/03) which the previous judicial factor had raised and sisted. The same six defenders are in effect sued in that action as are sued in the present action, with many of the same grounds of complaint. In May 2007, the pursuer in her capacity as judicial factor sought to be sisted to the present action (A205/04) to avoid possible duplication of court processes. However her motion was opposed and was refused. Accordingly the two actions, one in name of the pursuer as judicial factor (A1767/03) and one in name of the pursuer as an individual (A205/04) are currently proceeding.

[16] Another development occurring after the debate in June 2006 was the pursuer's decision not to insist upon the First, Third, Sixth or Eighth Conclusions of the present action (in which she sues as an individual and not as judicial factor). That decision was intimated at the close of the pursuer's submissions in the re-hearing of the reclaiming motion. Accordingly the remedies which she now seeks as an individual in the present action are as follows (paraphrased):

Second Conclusion

For declarator that the executry estate has suffered loss caused through the joint and several, or several, breach of trust duties and/or breach of fiduciary and common law duties by John Simpson Wilson and by the first, second, and fourth defenders as executors, and that the first to fourth defenders shall jointly and severally, or severally, or in such proportion as the court deems appropriate, make such payment as is required to restore to the estate the sums so lost, and so achieve restitutio in integrum for the estate.

Fourth Conclusion

For payment to the pursuer by the first to sixth defenders jointly and severally, or in such proportion as the court deems appropriate, of the sum of £146,000 with compound interest in respect of reparation and restoration of the pursuer's legal fees and related outlays over the past 19 years, caused by the defenders' breach of duty, and thereby achieving restitutio in integrum for the pursuer.

Fifth Conclusion

For payment to the pursuer by the first to sixth defenders jointly and severally, or severally, or in such proportion as the court deems appropriate, of the sum of £240,000 or such sum as the court thinks fit with interest at eight per cent in respect of compensation for the pursuer's time, expenditure and outlays over the past 19 years, caused by the defenders' breach of their duties.

Seventh Conclusion

For payment to the executry estate by the first to fourth defenders jointly and severally, or severally, or in such proportion as the court deems appropriate, of £4,294,347.92 (or such sum as the court may assess) with interest in repetition, restitution and recompense of the losses suffered by the estate, caused by the joint and several, or several, breach of trust duties and/or breach of fiduciary and common law duties by John Simpson Wilson and by the first, second, and fourth defenders as executors (in particular in making certain specified payments out of the estate) thereby achieving restitutio in integrum for the estate.

Submissions by the pursuer

[17] The following paraphrased summary of the main parts of the pursuer's submissions was derived from (i) three typed pages entitled "To sum up then"; (ii) the pursuer's Grounds of Appeal; (iii) the pursuer's oral submissions at the bar; (iv) five typed pages entitled "In A205/04 (8.01.09) by pursuer/reclaimer - a brief outline in response to the question arising in respect of the availability of alternative procedure in light of pursuer/reclaimer being appointed judicial factor on the James Clark Executry Estate by interlocutor of the Court of Session dated 13 March 2007", with copy Will of James Clark attached; and (v) fourteen typed pages entitled "Lady Clark's Opinion - Key erroneous points in Opinion".

[18] The pursuer submitted that the Lord Ordinary had erred in dismissing the action. A proof before answer should be allowed. The executry estate was bankrupt, and the executors who had made payments which should not have been made should be called to account and made to restore the viability of the estate. Laird v Hamilton (1911) 1 SLT 27 demonstrated that the executors owed a duty of some sort to a creditor of an executry estate (albeit not a fiduciary duty). That decision also made clear that the precise parameters of the duty could only be established in a proof before answer. The former judicial factor's report dated 11 October 2000 was critical of the conduct of the administration of the executry, describing it as "unsatisfactory". The report noted deliberate withholding of information from those advising James Clark's children. Steps had been taken and payments made which prima facie favoured Anne Clark at the expense of the pursuer and the children. The estate had been worth over £2.2 million, but as a result of breaches of duty on the part of office-bearers administering the estate, the estate was now bankrupt and without funds. The pursuer's claim was not a contingent one: cf Walker, Civil Remedies page 311; Matthew v Matthew's Tr (1907) 15 SLT 326; Mackenzie Stuart, Trusts, pages 206 to 209; Fleming v Yeaman (1884) 9 App Cas 966. The debt owed to the pursuer had been due and exigible as at the date of James Clark's death. It had been included in the Confirmation to the estate, valued at £115,000. It was said against the pursuer that the executors could not easily value her claim; that actuarial advice would be necessary; that the level of the Retail Price Index could not be predicted; and that tax liability similarly could not be predicted. But the pursuer's position was that those were the only uncertainties about what was otherwise a debt owed to her, which was due and exigible. Yet the executors had insisted on holding back money in order to meet a possible Lloyds' underwriters' claim (which was a truly contingent debt); the executors had made large payments, often unjustifiable, to beneficiaries; the executors had often omitted to mention the pursuer's claim in official documents, such as executry accounts; the executors had failed to pay the sums due to her. Thus the executors had clearly not fulfilled the duty which they owed to her, as a creditor of the estate, to make her maintenance payments. The ultimate removal of the executors from office by the Court of Session, and their replacement by a judicial factor, constituted a significant legal decision indicative of malversation of office. The whole history of the executry required to be explored in a proof before answer.

[19] Further, the Lord Ordinary was wrong to suggest that there had been a simple alternative remedy available to the pursuer (namely, suing the executors currently in office in an action for payment of a debt due). The executors had been removed from office in 1999 and a judicial factor appointed in their place. Thus no executors had been in office since 1999, and in particular no executor had been in office during the period when the current outstanding arrears of maintenance amounting to about £56,000 had accrued (November 2005 to date). The current action in its present form (A205/04) was therefore necessary. The pursuer submitted that she, as creditor, had title to hold the executors to account. Reference was made inter alia to Young v Ramage (1836) 15 S 572; Lamond's Trs v Croom (1871) 10 M 690; Smith v Smith (1880) 7 R 1013; Cook v Sinclair & Co (1896) 23 R 925, Lord McLaren; and Sheriff NMP Morrison's commentary on the Rules of the Court of Session page C90 paragraph D(5) (a special legatee's right to sue) and paragraph D(8) (executors refusing to sue, and beneficiaries suing in their name having given an indemnity for expenses). Nevertheless, the pursuer accepted that the former executors who were no longer in office were, in respect of any losses incurred by the estate as a result of their breaches of duty, debtors to the executry estate (and not debtors to the pursuer as an individual): Town and County Bank Limited v Walker (1904) 12 SLT 411. The pursuer also accepted that she, as a creditor, could no longer seek to recover the debt due and resting owing to her from the executors who were no longer in office, but that she should sue the judicial factor currently administering the estate for payment of the maintenance to her. The pursuer therefore considered that the proper approach when calling the executors to account was for herself as creditor to seek restoration of monies to the executry estate, whereupon the estate (administered by the pursuer herself as judicial factor) could make the necessary maintenance payments to her as a creditor and as an individual.

[20] The Lord Ordinary had further erred at the beginning of the debate in June 2006 by refusing to allow amendment of the pleadings in terms of the pursuer's Minute of Amendment. That Minute would have added inter alia an eleventh conclusion seeking production and reduction of the 1997 Agreement (the agreement reached after mediation). That agreement had been reached without the pursuer's knowledge or consent. It was the 1997 Agreement, and in particular a gratuitous alienation of over £700,000 made to Anne Clark in pursuance of the agreement, which had resulted in the bankruptcy of the estate. The pursuer produced and referred to a Balance Sheet as at 5 April 1998, excerpted from James Clark's executry papers. The pursuer offered to prove that certain entries in the Balance Sheet following upon the 1997 Agreement disclosed transactions and payments favouring Anne Clark to the prejudice of the estate, which should be reduced. For example, the discharge of a standard security worth £318,000 to the estate, held over Anne Clark's property; a payment of £68,000 to Anne Clark; the discharge of Anne Clark from any liability in respect of £185,000-worth of moveable assets appropriated by her under a purported waygoing agreement relating to the purported lease referred to in paragraph [7] above; the discharge of Anne Clark's liability to pay any rent for the farm, thus reducing the estate by a further £100,000; and finally a payment of £100,000 made to Anne Clark in about November 1977. Thus an estate which had been valued at £2.2 million at the date of death, and £1.1 million in 1997, was shown in the Balance Sheet at 5 April 1998 as having been reduced to a deficit of £31,492 (the true deficit being in fact £121,492.06, as the pursuer's claim was recorded as £100,000 whereas an actuarial valuation carried out on the pursuer's behalf valued her claim at about £190,000). The pursuer submitted that the executors had been well aware that the payment of £100,000 to Anne Clark would render the estate bankrupt. All of the foregoing matters were fundamental to the predicament in which the executry estate found itself, and its inability to pay the maintenance payments to which the pursuer was in law entitled. Accordingly the pursuer wished to seek reduction of the 1997 Agreement as a preliminary to recovering monies wrongfully paid out of the estate. Authorities on the subject of gratuitous alienations and fraudulent preferences included Bell's Commentaries Book VI, Part I, page 184 paragraph [197]; McBryde, Bankruptcy (2^nd ed); Mackenzie Stuart, Trusts; D M Walker, Civil Remedies. The pursuer submitted that she, as a creditor, had the right to seek reduction at common law of fraudulent preferences. (At this point, Mr Clark QC for the first, second, and third defenders supplied a reference supporting that proposition, namely McBryde, Bankruptcy (2^nd ed), paragraph 12-49). The pursuer for her part referred to Duncan v Newlands (1882) SLR 8. The Lord Ordinary had therefore erred in refusing to allow the pursuer's Minute of Amendment.

[21] The Lord Ordinary was wrong to conclude that there was no relevant case against the fifth and sixth defenders. The pursuer explained that she had called the former judicial factor and his law agent as fifth and sixth defenders because they refused to take action against the executors. The sixth defender was the judicial factor's partner and law agent, and was equally responsible for what had occurred. The pursuer referred to Irons, Judicial Factors, seriatim, and to Leslie (1904) 12 SLT 359. The first duty of a judicial factor was to call his predecessors to account, and if necessary, to reduce illegal acts and deeds. Yet the judicial factor had not done so. Further, the judicial factor had exacerbated the lack of funds in the estate by petitioning the court for directions. The pursuer contended that the judicial factor and his firm and law agent should not have benefited from the executry estate (by way of professional fees) to the prejudice of the pursuer, in that funds applied to legal fees meant that her maintenance payments were not paid. Reference was made to the Judicial Factors Act 1849, Mackenzie Stuart, Trusts, pages 188-189 and in particular to Bon-Accord Marine Assurance Co v Souter's Trs (1850) 12D 1010, where it was held that the creditors could object to any allowance being made to the trustee for his professional services. Thus payments made to the fifth and sixth defenders were illegal and should be restored to the estate.

[22] The pursuer further contended that the Lord Ordinary had failed to record, or to give a balanced account of, all the arguments and submissions (particularly the pursuer's) and to give her views thereon, contrary to Rule of Court 38.16.2.

[23] In conclusion, the pursuer submitted that the Lord Ordinary's interlocutor of 29 September 2006 should be recalled, amendment should be allowed, and ultimately a proof before answer ordered. The pursuer confirmed that the remedies which she currently sought were:

1.     Reduction (in terms of the new eleventh conclusion, to be added by amendment) of the 1997 Agreement as a fraudulent preference, and "restoration of the estate's claim to the £702 thousand of debts owed to the estate that were discharged", with interest.

2.     The restoration to the executry estate by repetition of the £100,000 paid to Anne Clark in November 1997 as part of the settlement reached in the 1997 Agreement, with interest.

3.     Immediate payment of that £100,000.

4.     Warrant for inhibition against the first defender and Anne Clark until payment.

5.     To find against the cautioner of the judicial factor (the fifth defender) for the latter's breach of duty in not calling his predecessors to account while profiting by some £50,000 paid to his own firm.

6.     Expenses.

[24] The pursuer explained that she wished to recover at least £100,000 for the estate at the outset, to enable the estate to make the maintenance payments due to her, and also to enable her to start work as judicial factor.

Submissions on behalf of the first, second, and third defenders

[25] Mr Clark QC on behalf of the first, second, and third defenders invited the court to refuse the reclaiming motion. He adopted in advance the submissions to be made by Mr Dunlop relating to the fourth and fifth conclusions of the summons.

Title to sue

[26] The first chapter of Mr Clark's submissions concerned the right of the pursuer as creditor to pursue the remedies she sought in the present action. The pursuer was now also the judicial factor to the executry estate. As judicial factor, she had an action against the same defenders (A1767/03). The Lord Ordinary's reasoning in paragraphs [45] to [47] of her judgment was correct and supported by authority, save for one error (namely, the fact that there were no executors currently in office). However that error might not matter, as the real question in issue was whether the pursuer had title to sue in relation to the remedies she sought. Senior counsel's submission was that she had not. The judicial factor should seek those remedies on behalf of the estate. A creditor could in effect force a reluctant judicial factor to sue by providing an appropriate indemnity for costs and suing in the name of the factor. That approach was permitted in law as it avoided a multiplicity of actions by aggrieved creditors. However no such indemnity had been offered by the pursuer in the present case. Thus the correct person to bring any action in respect of losses suffered by the executry estate was the judicial factor, and the judicial factor already had an appropriate action in court (A1767/03). Senior counsel referred to Town and County Bank Limited v Walker (1904) 12 SLT 411, affirmed (1905) 13 SLT 287; and Henderson v Robb (1889) 16R 341. The pursuer's action should therefore be dismissed. The Inner House decision in Heritable Securities Investment Association Limited v Miller's Trs (1893) 20 R 675 might be thought to conflict to some extent with the Inner House decision in Town and County Bank, cit. sup. It was possible that the argument about title to sue was simply not taken in Heritable Securities. Senior counsel added that in his submission the personal liability of an executor who had wrongly paid out funds was not lost on his removal from office. But a final conclusion on that issue was unnecessary, as the Lord Ordinary was correct in her conclusion that the appropriate person to pursue any claim in respect of losses suffered by the estate was the judicial factor.

Averments relating to fraudulent preferences

[27] Senior counsel submitted that, on the pursuer's pleadings (which contained averments of a cash payment of £100,000 made to Anne Clark in November 1997, but no averments of fraud), there was no relevant case made out of a fraudulent preference: cf McBryde, op cit, paragraph 12-29; Whatmough's Tr v British Linen Bank 1934 SC(HL) 51; Nordic Travel Ltd v Scotprint Ltd 1980 SC 1. The payment of £100,000 was merely a return of monies which should never have formed part of the executry estate, as was made clear in the judicial factor's report at pages 7, 16 and 17. Furthermore, the pursuer appeared to be trying to recover damages, but the appropriate remedy for a fraudulent preference was reduction of the transaction challenged, and recovery of the payment from the recipient. Thus the 1997 Agreement would have to be reduced. As the Clark children had been involved in that agreement, any action seeking reduction would have to be intimated to them: McBryde, Bankruptcy paragraph 12-57; McDougall's Tr v Gibbon (1889) 16R 740. It was accepted that, at common law, a fraudulent preference could be reduced by a creditor (McBryde, op cit paragraph 12-49). However the pursuer's seventh conclusion sought payment from the former executors qua executors, whereas a claim for recovery of a payment which constituted a fraudulent preference should be directed against the individual who had received the payment. In any event, the pursuer's claim for maintenance payments was truly a contingent debt. Her entitlement was subject to remarriage or death. Reference was made to Costain Building and Civil Engineering Ltd v Scottish Rugby Union plc 1993 SC 650, Lord President Hope at pages 653G to 654C; Mackenzie Stuart, Trusts, pages 207-208; Matthew v Matthew's Tr (1907) 15 SLT 326. The pursuer would be unable to rank in a sequestration.

The proposed amendment

[28] The pursuer's Minute of Amendment sought to add four new conclusions, namely Conclusion 8, declarator that the purported lease and partnership agreement (executed in December 1985 by James Clark a few hours before his death) were void; Conclusion 9, declarator that three persons (namely the first defender, Jack Wilson, and Anne Clark) fraudulently conspired to pretend that the purported lease was valid and that Anne Clark was a preferred creditor, resulting in gratuitous alienations to Anne Clark, and concealment of information; Conclusion 10, reduction of the purported partnership contract of December 1985; and Conclusion 11, reduction of the 1997 Agreement whereby the first and second defenders agreed inter alia to pay a further £100,000 to Anne Clark. The Lord Ordinary's exercise of her discretion in refusing to allow amendment for the reasons set out in paragraph [5] of her judgment could not be criticised.

Miscellaneous points

[29] The pursuer's criticism relating to the Lord Ordinary's alleged failure to record submissions and give her views thereon was not well-founded. The pursuer had, at the debate, handed up detailed written submissions, as noted in paragraphs [42] to [47] of the judgment. The Lord Ordinary recorded that she had considered all of the pursuer's submissions. There was no need to rehearse the pursuer's written submissions. The reclaiming motion should be refused.

Submissions on behalf of the fourth defender

[30] Mr Connal QC on behalf of the fourth defender invited the court to refuse the reclaiming motion.

[31] The ill-founded argument that the executors owed the pursuer (a creditor) a fiduciary duty appeared to have been abandoned. It was quite clear from the authorities cited in the Lord Ordinary's opinion that no such duty was owed to a creditor. An executor was not a trustee, and the duties owed by an executor to a creditor were restricted: Stewart's Tr v Stewart's Exrx (1896) 23R 739; Mitchell v Mackersy (1905) 8F 198. The creditor was only entitled to demand payment of the debt. If the executry funds were insufficient, the executor was personally liable to the creditor, unless he could justify non-payment. The discussion in Heritable Securities focused on the personal liability of the executor to the creditor, but there was no analysis concerning liability once the executor had left office. Heritable Securities was considered in Neilson's Exrs, Petitioners, 2002 SLT 1100, but there was no discussion about the legal basis for the personal liability of the executor. In Lamond's Trs v Croom (1871) 9 M 662, the personal liability of the executor was discussed, but not the question of what occurred when the executor demitted office, nor was there any debate about Town and County Bank. Accordingly the present case involved untested law, in controversial circumstances. However, as had been submitted on behalf of the first to third defenders, it was unnecessary to attempt to resolve these issues. All that the fourth defender required to submit was that the pursuer as an individual did not have title to sue for the remedies she sought. It was the judicial factor who should seek those remedies.

[32] Many of the pursuer's irrelevant claims were no longer insisted upon: for example, an apparent claim for a lump sum; claims for lost opportunity cost, solatium, and compound interest. Any claims for reparation related to events occurring over five years previously, and would be affected by the quinquennial prescription, as there was no question of a fiduciary duty being owed. However that matter did not have to be explored if the primary argument were to be sustained.

[33] The fourth defender ceased to be an executor on 25 August 1986, when there were sufficient funds in the executry estate to meet the pursuer's claim, whether viewed as a capital claim or as a claim for instalments. The 1997 Agreement would be difficult to reduce in view of the fact that settlement had been reached after mediation involving inter alios the beneficiaries and their advisers.

[34] If an executor had breached a duty or obligation, the remedy lay against him personally. There was no need to consider fraudulent preferences. Nevertheless in this context, Mr Connal adopted the submissions made on behalf of the first to third defenders, including those relating to Nordic v Scotprint. There were no relevant averments making out a case of a fraudulent preference against the fourth defender.

[35] On one view, the action was incompetent, as the defenders should not be sued together in one action: cf observations in Yoker Housing Association Ltd v McGurn Logan Duncan & Opfer 1998 SLT 1334.

[36] The Lord Ordinary could not be said to have erred in the exercise of her discretion when she refused to allow the pleadings to be amended. The case as pled was fatally flawed; there had been extensive procedure leading to the 8-day diet of debate; the loss of that 8-day diet, and the possible addition of further defenders, were matters which the Lord Ordinary was entitled to take into account when refusing the pursuer's motion to amend.

Submissions on behalf of the fifth and sixth defenders

[37] Counsel for the fifth and sixth defenders invited the court to refuse the reclaiming motion, and to allow the cross-appeal. In the latter context, the Lord Ordinary had clearly intended to dismiss the action so far as directed against the fifth and sixth defenders.

Joint and several liability

[38] Counsel submitted that the former judicial factor and his law agent could not be jointly and severally liable with the executors when the judicial factor had taken over responsibility for the executry estate after the depletion of the estate had occurred. Any refusal by the judicial factor to sue other parties did not result in joint and several liability with those parties: cf Barr v Neilson (1868) 6M 651, at page 654; Trusts (Scotland) Act 1921, section 3(d), which provided that a judicial factor should be liable only for his own acts and intromissions.

Remedies

[39] The fifth and sixth defenders were affected only by the fourth and fifth conclusions, which were claims for the pursuer's legal fees and related outlays over 19 years, and compensation for the pursuer's time, expenditure and outlays during those years. However the former judicial factor could not be liable for legal expenses incurred during those 19 years when there was no complaint against him. Moreover there was no legal basis for such a claim: McDowall v Stewart (1871) 10M 193; Shanks v Gray 1977 SLT (Notes) 26; the Litigants in Person (Costs and Expenses) Act 1975 and the relevant Act of Sederunt, namely Expenses of Party Litigants SI 1976 No 1606. Thus there was no relevant claim against the fifth and sixth defenders.

Whether there was any relevantly stated duty to the pursuer as a creditor

[40] A judicial factor replacing an executor could not be in a worse position than the executor. Thus the only duty owed to a creditor such as the pursuer was to pay the debt due: cf Taylor & Ferguson Limited v Glass's Trustees 1912 SC 165; Jamieson v Clark (1872) 10M 399, at page 405. The factor's duty was to administer the estate. Counsel submitted that any fiduciary duty was owed to the estate, and an errant executor might be liable to the estate: cf Hutcheson & Co's Administrator v Taylor's Exr 1931 SC 484, at page 491 (establishing that a creditor could sue the executor while he was in post, but once the executor had died, he (or rather his representative) was no longer the correct defender). That case was consistent with Town and County Bank. Thus there was no duty owed by the former judicial factor to the pursuer as creditor. The pursuer had no relevant case against that judicial factor. If a creditor such as the pursuer wished to sue parties to recover payments wrongfully made out of the estate, she must offer the judicial factor caution for costs, and sue in his name. That had not been done. The case pled against the fifth defender was irrelevant.

The sixth defender

[41] The sixth defender was sued only as the solicitor who acted on behalf of the judicial factor. It was said that he was vicariously liable as a partner, and that he had benefited from the judicial factory. But there was no authority supporting such propositions. Reference was made to Stair, Encyclopaedia, Vol 24, Trusts, Trustees and Judicial Factors, paragraph 237 et seq. The judicial factor was appointed by the court. His work was not partnership business. He could not delegate his tasks: cf Notes for the Guidance of Judicial Factors contained in the Parliament House Book page M301. The caution found by the judicial factor covered only the judicial factor. The will executed by James Clark had permitted the charging of professional remuneration in the administering of the estate: cf Wilson & Duncan, Trusts, paragraph 26-37; Henderson v Watson 1939 SC 711. Thus the case against the sixth defender was irrelevant and must fail. Further, if the case against the fifth defender failed for any reason, the case against the sixth defender was parasitic on the claim against the fifth defender, and must also fail. The reclaiming motion should be refused and the cross-appeal allowed.

Discussion

[42] At the time of the debate in June 2006, the judicial factor was in office, having been appointed in place of the executors who were removed from office by the interlocutors of Lords Maclean and Dawson dated 23 March and 27 May 1999. Thus it is true, as the pursuer contends, that the Lord Ordinary appears to have overlooked the fact that there have been no executors in office administering the estate since 1999. Paragraphs [2] and [45] of the Lord Ordinary's opinion reflect this oversight, for there it is stated:

"[2] ... The first defender who is sued as executor was assumed as additional executor conform to Deed of Assumption dated 13 December 1985 and he remains as executor. The second defender was assumed as an executor by Deed of Assumption by the first defender dated 13 and 21 June 1991 and he remains as executor [emphases added]

[45] ... The law, as I understand it, provides a simple remedy for a creditor who has made a timeous claim to executors and who has not been paid because the estate has been exhausted by prior payments to beneficiaries. In such a case Scots Law holds the executors personally liable to pay the creditor except in exceptional circumstances. Thus the pursuer in this case would have been entitled to plead a case to recover the periodic maintenance due under said Minute of Agreement personally from the executors currently in office [said, at paragraph [2] of the judgment, to be the first and second defenders]. It was apparent from the pursuer's submission that she chose not to do so ... [emphasis added]"

[43] Contrary to what is stated by the Lord Ordinary, the first and second defenders were not in office at the time of the debate. Moreover the current outstanding arrears of maintenance amounting to about £56,000 accrued during the period from November 2005 to date, when neither the first nor the second defender was in office as executor. As a result, were the pursuer to be seeking to recover those arrears in the present action, questions of law would arise concerning where liability lay in respect of the arrears of maintenance, and whether the pursuer as creditor of the estate would be entitled to insist on payment of those arrears directly to her (rather than to the executry estate, which would then account to her). Such questions would include the following:

(a)   Whether or not the pursuer's claim for monthly maintenance should be regarded as contingent.

(b)  Whether an errant executor's personal liability to pay a debt due to a creditor of the estate (arising because he had wrongfully allowed the estate to be depleted before satisfying that debt) is a liability to make payment directly to the aggrieved creditor, or to make payment to the executry estate (against which the aggrieved creditor may make a claim). Relevant authorities include Heritable Securities (1893) 20R 675 and Town and County Bank (1904) SLT 411, affirmed (1905) 13 SLT 287.

(c)   Whether an executor, once removed from office (for example, by the court), continues to have any personal liability for arrears of maintenance (i) accrued during his period of office, and (ii) accruing after the date of his removal.

Importantly however in this action the pursuer has chosen not to seek to recover the arrears of maintenance owed to her as a creditor, amounting to about £56,000, all as further explained below. Thus the questions of law referred to above do not require to be explored or resolved. Against that background, the primary issues for this court in the current reclaiming motion are whether the Lord Ordinary erred in refusing to allow the pursuer's proposed amendment, and in dismissing the action. When addressing those issues, this court was not conscious of any inadequacy in the Lord Ordinary's recording of the submissions, reasoning, or conclusions.

[44] As noted above, the pursuer makes no attempt in this action to obtain payment of the debt of about £56,000 owed to her as a creditor of the estate. Instead, the pursuer seeks payment of £4.2 million to restore to the executry estate sums said to have been wrongfully paid out of the estate (the Second and Seventh Conclusions). She also seeks to recover her legal fees and related outlays over the last 19 years (£146,000: the Fourth Conclusion), and compensation for her time, expenditure and outlays during those years (£240,000: the Fifth Conclusion). We deal with each claim in turn.

The Second and Seventh Conclusions: claims for losses suffered by the executry estate and restitution to that estate (£4.2 million)

[45] The pursuer has undoubtedly placed before the court a troubled history relating to the executry estate, raising questions concerning the proper administration of the estate, and possible wrongful payments or premature payments leaving the estate without sufficient funds to pay the pursuer's rightful debt. However for present purposes, the questions which must be resolved are: (a) Did the Lord Ordinary err in the exercise of her discretion at the commencement of the debate when she refused the pursuer's proposed amendment seeking to add inter alia a Conclusion seeking reduction of the 1997 Agreement referred to in paragraph [9] above. (b) Does the pursuer, as an unpaid creditor of the executry estate, have (on her present averments) title and interest to seek to recover sums on behalf of the estate on any ground, for example, breach of fiduciary duty, fraud, negligence, gratuitous alienation, fraudulent preference or other. Dealing with each question in turn:

(a) The Lord Ordinary, faced with what was likely to be a lengthy legal debate on already detailed and complex pleadings drafted and adjusted over a considerable period of time, had to exercise her discretion in relation to the question whether amendment at that stage should be allowed. The proposed amendment did not simplify the pleadings, or result in an obviously relevant and specific case. Moreover the proposed amendment sought to introduce conclusions which affected the rights of third parties to whom no intimation had, at that stage, been made. In these circumstances, it cannot in our opinion be said that there was a wrongful exercise of the Lord Ordinary's discretion.

(b) Town and County Bank Limited v Walker (1904) 12 SLT 411 (affirmed (1905) 13 SLT 287) and Henderson v Robb (1899) 16R 341 are authorities for the principle that a creditor such as the pursuer has no title to seek to have restored to the executry estate payments wrongfully made from that estate: it is for the judicial factor to seek such recovery. The question of title to sue does not appear to have been raised in Heritable Securities Investment Association Limited v Miller's Trs (1893) 20R 675, but in any event that decision focused on a creditor suing trustees still in office, whereas the present case raises sharply the question whether a creditor has title to sue an executor no longer in office. We are not therefore persuaded that the pursuer has title to seek to recover sums on behalf of the estate as concluded for in the Second and Seventh Conclusions.

[46] The one (rather anomalous) exception to that general principle is that a creditor has, at common law, both title and interest on behalf of the estate to seek reduction of a fraudulent preference: McBryde, Bankruptcy (2^nd ed) paragraph 12-49; Cook v Sinclair & Co (1896) 23R 925, Lord McLaren at page 927 et seq. However the action as presently framed contains no relevant claim for reduction of any transaction as a fraudulent preference. We refer inter alia to the conclusions; to Articles 4, 7.8, and 14 of Condescendence; and to the pursuer's nineteenth plea-in-law. It will be seen that there is no conclusion for reduction of any transaction described as a fraudulent preference. Further, bearing in mind the explanation at page 26 of the judicial factor's report in relation to the payment of £100,000 to Anne Clark and the guidance given in Nordic Travel Ltd v Scotprint Ltd 1980 SC 1, no relevant case relating to a fraudulent preference has been pled on record. Accordingly the pursuer has not pled a case within the exception referred to in McBryde, Bankruptcy paragraph 12-49 and Cook v Sinclair & Co cit sup, Lord McLaren at page 927 et seq, and as a creditor of the estate has not demonstrated any title to pursue the claims contained in the Second and Seventh Conclusions. We are therefore unable to accept the pursuer's submission that the Lord Ordinary erred in dismissing the case insofar as it relates to those conclusions.

The Fourth and Fifth Conclusions: claims for the pursuer's legal fees and related outlays over the last 19 years (£146,000) and compensation for the pursuer's time, expenditure and outlays during those years (£240,000)

[47] Fourth Conclusion: Depending upon the degree of success, a pursuer may seek to recover the expenses incurred in the course of a litigation. There are principles, rules of law, rules of court, Tables of Fees, decisions of the court (such as Shanks v Gray 1977 S.L.T. (Notes) 26) and other guidelines governing the recovery of such expenses. The appropriate Conclusion is simply one for "The expenses of the action", and the pursuer has such a conclusion in the present action, namely the ninth conclusion. However the pursuer also seeks, in terms of the Fourth Conclusion, to recover all her legal expenses (many not arising in the present litigation) incurred over the past 19 years. The law and practice relating to recovery of the expenses does not permit such a far-reaching conclusion. Any such claim is accordingly irrelevant.

[48] Fifth Conclusion: A pursuer may be able to recover damages in respect of expenditure, outlays, and time as heads of damage in a case founded upon a relevant breach of a duty owed to her. In such as case a pursuer must demonstrate some breach of contract, or delict, or other legal basis entitling her to recover compensation for wasted time and money. There must also be adequate detail or specification of the way in which the damages claimed have been calculated. In the present case, the pursuer's Fifth Conclusion seeks compensation from the first to sixth defenders for the pursuer's time, expenditure, and outlays over the past 19 years "caused by the defenders' breach of their duties". That might suggest that the pleader has attempted to include a claim for damages. However the alleged breaches of duty underlying such a claim, and the way in which any damages claimed are calculated, are not sufficiently and relevantly averred. For example, the duty owed by an executor to a creditor is not a fiduciary one, but is restricted to a duty to make payment of the debt due from the estate as eadem persona cum defuncto. Neither the pleadings nor the submissions presented by the pursuer vouch the proposition that the late payment or non-payment by an executor of a debt due to a creditor of the executry estate would entitle the creditor to claim damages in relation to time and expenditure spent attempting to recover the debt. While the pursuer cited Laird v Hamilton (1911) 1 SLT 27 and argued that such issues should simply be explored at large in a proof before answer, that case concerned an action of count, reckoning and payment by the trustee on a sequestrated estate. The case does not vouch the proposition that an unpaid creditor is entitled to a proof before answer when seeking to recover damages from a former executor without sufficient relevant averments. As for the judicial factor and his law agent, no breach of duty entitling the pursuer to damages is relevantly pled on record. The judicial factor was entitled to exercise his professional judgment when deciding whether or not to commence or continue with litigation. He was entitled to take into account inter alia the funds available in the executry estate and the likelihood of success. If the pursuer wished to insist upon litigation contrary to the judicial factor's judgment, she would have to provide an appropriate indemnity for costs, and sue in the name of the factor: Town and County Bank Limited v Walker (1904) SLT 411; Henderson v Robb (1889) 16R 341. The pursuer did not take those steps. Accordingly in our view no relevant case of breach of duty has been made out so far as relating to the former judicial factor, namely the fifth defender. Furthermore, the judicial factor was entitled to obtain legal assistance, and to make appropriate payment therefor. The sixth defender (the law agent instructed by the former judicial factor) was for his part entitled to render professional services, and to make appropriate charges therefor. Again therefore we are unable to find a relevant case of breach of duty so far as relating to the sixth defender. Thus there are no relevant averments supporting the Fifth Conclusion.

Result

[49] For the reasons given above, we are not persuaded that the Lord Ordinary erred in refusing to allow amendment, or in dismissing the action as irrelevant. The fact that the Lord Ordinary observed that a simple alternative remedy was available to the pursuer, namely an action of payment against the executors currently in office, when in fact there are no such executors in office (and have been none during the relevant period November 2005 to date), does not invalidate the reasoning and conclusion reached by the Lord Ordinary on the fundamental issue of relevancy.

Decision

[50] We refuse the reclaiming motion. We allow the cross-appeal, as the interlocutor of the Lord Ordinary dated 29 September 2006 omitted per incuriam to mention the Fifth and Sixth Defenders. Accordingly we shall recall the said interlocutor of 29 September 2006 and we shall grant an interlocutor dismissing the action insofar as directed against all six defenders. The expenses of the reclaiming motion are reserved meantime to enable the court to be addressed on that matter.