Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 65
F35/09	OPINION OF LADY CLARK OF CALTON in the cause DM Pursuer; against JM First Defender; and WARDS ESTATE TRUSTEES LIMITED Second Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Scott, Q.C., Wilson; Morton Fraser LLP

First Defender: No appearance

Second Defenders: M. Stewart; Biggart Baillie

8 May 2009

Introduction
[1] The pursuer has raised an action in which she seeks decree of divorce and various orders including financial conclusions from the first defender including a capital sum of 20 million pounds. In the summons, the pursuer also seeks interdict and interdict ad interim in relation to the first defender and the second defenders. The issues argued before me related to interim interdict in relation to the second defenders. The second defenders are averred in the summons to be "trustees of a trust the pursuer maintains was established by the first defender to hold property in Scotland on his behalf".

[2] On 24 February 2009 at a hearing before calling, when only the pursuer was represented, various orders were granted by Lord Bracadale. In particular interim interdict in relation to the second defenders was granted in the following terms:

"... ad interim interdicts the Second Defender, Wards Estate Trustees Limited, by themselves, their agents or servants, from appointing, distributing or otherwise transferring funds or property held pursuant to the trust in which the Wards Estate forms part of the trust property without the written consent of the Pursuer or leave of the Court in terms of conclusion six of the Summons."

Motion on behalf of the second defenders to recall the interim interdict
[3] At a second motion before calling, on 11 March 2009, when the pursuer and the second defenders were represented, I was asked to consider a motion on behalf of the second defenders to recall the interim interdict granted by interlocutor of 24 February 2009. There was no appearance on behalf of the first defender.

[4] Counsel for the pursuer made a motion at the Bar to amend the summons in terms of minute of amendment (10 of process). I was informed that since the drafting of the summons, counsel for the pursuer had obtained further information about the position of the second defenders and in particular had received from the second defenders a copy of a trust deed (9/1 of process). Submissions were made based on ex parte statements reflected in the updated minute of amendment (10 of process).

Submissions by counsel on 11 March 2009
[5] In summary, counsel for the pursuer submitted that although there were new facts averred at the Minute of Amendment (10 of process), the basis of the case in relation to the second defenders was still well founded. He submitted that the Court should keep in place the interim interdict which had been granted for the protection of the pursuer. That protection was necessary taking into account the unusual circumstances of the case. These circumstances involved inter alia averments that the first defender had concealed from the pursuer the existence of two other families whom he supported financially. The pursuer averred that the first defender had transferred a substantial sum of approximately 6 million pounds into a trust in which his children (not of the marriage) were the beneficiaries. Counsel for the pursuer submitted that there were facts and circumstances to justify the protection sought by interim interdict in terms of section 18 of the Family Law (Scotland) Act 1985 (hereinafter referred to as the 1985 Act). In particular, counsel for the pursuer submitted that the transfer by the first defender to the second defenders of approximately 6 million pounds had a substantial effect in reducing the matrimonial property. That transfer also affected the security available to meet the financial claims of the pursuer. It was submitted that the first defender had stated that he had arranged his financial affairs in order to keep his assets in Dubai.

[6] Counsel for the pursuer submitted that on the new facts now understood by the pursuer to exist and represented to the Court, the balance of convenience also lay with the pursuer. The trustees had very wide powers under the trust deed including powers in terms of clause 9(34). That clause gives power to the trustees to do "in general terms everything in their discretion that they conceive to be for the interests of the trust estate and the beneficiaries therein". Counsel submitted that the trustees might seek to protect the beneficiaries in such a way as to defeat the financial claims of the pursuer. The pursuer required the protection of the interim interdict because the property held by the second defenders was substantial property in Scotland in respect of which the pursuer sought a setting aside order.

[7] In response, in relation to the issue of prima facie case, counsel for the second defenders submitted that section 18 of the Family Law (Scotland) Act 1985 does not provide a remedy for the pursuer in the circumstances of this case. Section 18 is designed to deal with avoidance transactions. The remedy of interim interdict against the second defenders does not fall within the scope of the family law remedy. Section 18 is an example of family law provisions providing a specific remedy which may include interim interdict of a spouse or civil partner in relation to specific circumstances and subject to the limitations expressed in section 18. The remedy of interim interdict in any event does not apply to a situation where a third party, in this case the trustees, have taken money from the first defender in good faith and for value.

[8] Counsel for the second defenders emphasised the importance of considering the way in which the case had been presented to Lord Bracadale and the basis on which interim interdict had been granted. At that stage the second defenders had not been represented. The pursuer had sought interim interdict on the basis that the second defenders, as trustees, were holding property in Scotland on behalf of the first defender. The pursuer at said hearing had relied on AB v CD [2006] CSOH 200. In that case the Court had been concerned with a very different type of trust, the Mergie Trust, a discretionary trust constituted according to the law of Jersey, in which the husband had been a potential beneficiary. Having considered the way in which the trust was operated, the Lord Ordinary concluded that "the Mergie Trust, as it was operated, was no more than a means of managing assets for the benefit of the first defender, presumably in the hope that they would thereby escape the notice of the pursuer (and perhaps other creditors or prospective creditors of the first defender) and that diligence would be elided" (paragraph 21). The Lord Ordinary also agreed with the description of the Mergie Trust as the "piggy bank" of the defender (paragraph 15). Counsel for the second defenders submitted that the trust in the present case, as is plain from the trust deed, is a genuine and valid trust in which the first defender is not a beneficiary.

[9] Focusing on the new averments in the minute of amendment (10 of process) counsel for the second defenders submitted that the case the pursuer now attempted to make was very different from the case on the basis of which interim interdict had been granted. He made reference to Article 3 of the minute of amendment. Counsel for the second defenders submitted that the pursuer was faced with a genuine trust set up at arms' length for the benefit of certain children of the first defender. The value of funds transferred by the first defender was approximately 3 million pounds. Counsel referred to a statement of accounts to explain the property of the trust. Counsel was critical of the form of the new fifth conclusion which the pursuer sought to introduce by amendment. He submitted that it was plain that the first defender "had not transferred the Wards Estate to the second defenders". The first defender had provided a sum of money in excess of 3 million pounds to enable the second defenders to purchase heritable property for the Trust. He submitted that the pursuer had made no relevant averments that the set up of the trust and the later transfer of money to the trustees was an avoidance transaction of the type in contemplation by Section 18 of the 1985 Act. The main submission of counsel for the second defenders was that the pursuer had changed her case and there was no prima facie case to justify interim interdict.

[10] In any event, counsel for the second defender submitted that the balance of convenience lay with the second defenders. The second defenders were responsible for operating a commercial farm estate. The terms of the interim interdict granted were too wide and caused great difficulties for the second defenders. He also submitted that the terms of the interim interdict sought in the Summons are too wide, unclear and confusing. The second defenders should not be faced with these difficulties and risks in trying to operate the estate for which they are responsible as trustees and in respect of which the pursuer has no beneficial interest.

Submissions by counsel on 12 March 2009
[11] At the continued hearing on 12 March 2009 the pursuer's case was further developed in oral submission. A new minute of amendment (11 of process) was received. The pursuer made a motion to amend in terms of said minute of amendment. As I understood the position, counsel for the pursuer was no longer seeking to amend in terms of minute of amendment (10 of process) but was seeking to amend in terms of minute of amendment (11 of process). I understood that this minute of amendment was designed to deal with the difficulties which had been raised by counsel for the second defenders in relation to the form of the conclusion for setting aside, the supporting averments and the alleged inadequacies in relation to the prima facie case for interim interdict. The new minute of amendment (11 of process) sought to add a new fifth conclusion in the following terms:

"For setting aside and reduction of the transaction or transactions whereby the first defender provided funds and assets to the second defenders for the purpose of the acquisition and management of the ward's estate or other purposes connected with that estate; and to ordain the second defenders to repay or restore to the first defender said estate, funds and assets; and for such other or ancillary orders that the Court shall consider expedient".

The supporting factual averments are set out in paragraph 3 of the minute of amendment. This minute of amendment inter alia averred:

"In or about 2005, the defender set up the second defenders, The Wards Estate Trustees Limited. In or about 2005, he set up an accumulation and maintenance trust, The Wards Trust. The initial capital of the trust was £10. The Wards Estate Trustees Limited are the trustees of the trust. In or about 2006, the first defender negotiated the purchase of the Wards Estate for about £6.4 million. Applications to register the title to the Wards Estate in the second defender's name were lodged with the Keeper of the Registers in 2006 but have not been registered. Believed and averred that the second defenders own the Wards Estate as trustees for The Wards Trust. Believed and averred that the first defender funded the purchase of the Wards Estate in its entirety. Believed and averred that the first defender exercises a degree of control over the trust. The funding of the purchase was a transaction to transfer which had the effect of, or is likely to have the effect of, defeating in whole or in part the pursuer's claim for financial provision. She seeks to have it set aside in terms of section 18 of the Family Law (Scotland) Act 1985. She seeks interdict and interdict ad interim against the second defender (i) from transferring to any other person funds or property held pursuant to the trust other than funds expended in the ordinary cause of the estate's business and (ii) from advancing, appointing or distributing funds or property held pursuant to the trust without the pursuer's written consent or the leave of the Court."

[12] Counsel for the pursuer submitted that the interlocutor of Lord Bracadale did not become incompetent by virtue of the changes in the facts averred in the minute of amendment (11 of process). There is a new factual basis sufficient to justify interim interdict. In such circumstances there is no reason to disturb the interlocutor. On an alternative basis, he submitted that it was open to the Court to recall the interim interdict in relation to the second defenders and grant interim interdict based on the new facts explained ex parte to the Court and reflected in the minute of amendment (11 of process). Further and alternatively it was open to grant interim interdict in terms of section 47(1) of the Court of Session Act 1988 (hereafter referred to as the 1988 Act).

[13] Counsel for the pursuer developed his primary submission. He submitted that section 18 of the 1985 Act should be construed as taking into account the mischief which it is designed to prevent. He submitted that the mischief was to protect a spouse against transactions which would have the effect of defeating in whole or in part the claim of the spouse. That is the reason provision is made within section 18 for setting aside certain transactions. The reference to ancillary orders includes interdict ad interim protection. He submitted that the terms of section 18 of the 1985 Act should be construed in terms of that purpose. On a purposive construction, the availability of the remedy of interim interdict protection should extend to interim interdict against a third party such as the second defenders.

[14] In relation to the balance of convenience, counsel further submitted that the pursuer required protection as she stood to lose the only substantial asset connected with Scotland which could result in her claim being defeated for practical purposes in its entirety. He pointed out that no undertakings of any kind had been offered by the second defenders. He submitted that the first defender had removed his assets from the UK to Dubai. The first defender had told the pursuer recently that this was the case. The second defenders were likely to take steps to protect the child beneficiaries from the setting aside conclusion. Counsel submitted that the pursuer did not seek to prejudice the management by the second defenders of the trust estate and that the terms of the interim interdict did not have that result.

[15] In response, counsel for the second defenders sought to clarify the position in relation to the pleadings. On the assumption that the pursuer's case for interim interdict was based on the pleadings as expanded by minute of amendment (11 of process), he submitted that the pursuer's case for interim interdict against the second defenders whether based on section 18 of the 1985 Act or at common law was incompetent. In any event he submitted that section 47(1) of the 1988 Act was irrelevant as the pursuer had a conclusion both for interdict and interim interdict.

[16] In relation to the pursuer's case under section 18 of the 1985 Act, counsel for the second defenders submitted that section 18 had carved out from the common law a specific remedy in family law cases for setting aside a transaction. The remedy of interdict and interim interdict is available in defined and recognised circumstances only. The 1985 Act did not create some new form of remedy. Counsel referred to the specific terms of section 18 and the reference to "other person" in the singular. It was submitted that the legislation provided a remedy of interim interdict in certain circumstances as defined in section 18. It was submitted that section 18 cannot provide a remedy as in the present case where a third party for value is affected. It was plain that section 18 was limited to granting the remedy of interdict and interim interdict in relation to a spouse or more recently a common law partner as "the other person". Properly interpreted, section 18 does not provide a remedy of interim interdict in relation to any third parties and the remedy sought by the pursuer under section 18 is incompetent.

[17] Counsel for the second defenders submitted that section 47(1) of the 1988 Act does not provide some alternative route to section 18. Section 47(1) is not designed for the present circumstances where there is a conclusion for interdict and interdict ad interim. That Act does not extend the circumstances in which the statutory remedy under the 1985 Act is competent. Any remedy of interim interdict provided by the 1985 Act is a remedy defined by the 1985 Act and the pursuer must bring herself within established and well recognised principles of that remedy.

[18] Developing his theme that interim interdict was not a competent remedy in relation to the second defenders, it was submitted that the pursuer would have no right to obtain an interim interdict, even if an action of reduction was competent. The pursuer has no title at common law to seek such a remedy in such circumstances. Counsel prayed in aid D & J Nicol v The Trustees of the Harbour of Dundee 1950 S.C.(H.L.) 7, Lord Dunedin at page 12. In these passages Lord Dunedin discusses the question of title and interest to sue. Without defining the concept Lord Dunedin stated: "For a person to have such title he must be a party (using the word in its widest terms) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies". Lord Dunedin then discussed the situation where persons are trustees or at least have a fiduciary duty to others. He concluded that those persons to whom they owe a fiduciary duty will have a title to sue to prevent the infringement of that duty. Counsel for the second defenders submitted that the pursuer has no interest or title in the trust estate. There is no legal relationship between the pursuer and the trustees and the trustees owe her no fiduciary duty. So long as the trust stands, she has no title to sue for interdict and interdict ad interim at common law. Counsel for the second defenders also prayed in aid Mansfield v Stewart 1839 2 D. 246 and Burn Murdoch, Interdict at paragraphs 42, 62 and 101.

[19] Counsel for the pursuer wished further time to consider the competency issues raised by counsel for the second defenders. I granted a continuation to a date when I was available in the Recess Court on 8 April 2009.

[20] Counsel for the second defenders wished to insist that the interim interdict should be recalled prior to any further continued hearing because he submitted the pursuer was plainly not entitled to interim interdict in any form or any undertaking from the second defenders. As the submissions were not concluded I was not prepared to accept his submission. Counsel for the second defenders then offered an undertaking on behalf of the second defenders. This undertaking was noted in the Minute of Proceedings on 13 March 2009.

[21] Counsel for the pursuer had made no offer to vary the terms of the interim interdict granted and I had concerns inter alia about the wide scope and clarity of the interim interdict. Taking into account the terms of the undertaking offered by the second defenders, I recalled the interim interdict as I was satisfied that the pursuer had sufficient interim protection based on the terms of the undertaking. This undertaking was given without prejudice and only for a limited period when it was anticipated that an Opinion might be issued.

Submissions by counsel on 8 April 2009
[22] At the continued hearing, senior counsel for the pursuer appeared before me for the first time. She wished to make a number of points about matters which had previously been canvassed. I allowed some latitude albeit I invited her to focus on the outstanding competency issue. Her points are summarised in this way.

1. The pursuer's case, in so far as it involves the second defenders, rests on the Family Law (Scotland) Act 1985. She has a prima facie case to set aside her husband's clandestine transfer of funds/assets for the benefit of children of whose existence she was unaware, and which is likely to defeat in whole or in part her claim for financial provision in so far as this is, as matters stand, the only major asset known to her that is in Scotland - ie there is no other apparent source of funds.

2. The test at this stage in the case is not one of relevancy. The case is not fully averred. It cannot be given the lack of financial disclosure. The first defender (for reasons best known to himself) is not yet a party. The test on all issues, including title, is whether there is a prima facie case and the balance of convenience. Senior counsel cited the cases of Dean v Lothian Regional Council 1986 S.L.T. 22, in particular Lord Justice Clerk Wheatley at page 3 and Reid Stenhouse (UK) Limited v Brodie in relation to the principles which govern interim interdict. She emphasised that when the case is at an early stage the Court is only able to take a rough prima facie view of the facts. She prayed in aid Lord Wheatley in Dean who stated that the question at the early stage is not so much the absolute relevancy of the case but the cogency of the need for interim interdict.

3. The setting aside claim affects the second defenders. It was competent for them to be joined as defenders and was in the particular circumstances appropriate.

4. The pursuer seeks to support an order in support of the principle pendent lite nihil innovandum.

5. The pursuer adheres to the submission that is competent in terms of s. 18(2) and (4) to grant an order to ensure pendent lite nihil innovandum, as this affects whether the principal order sought is effective.

6. The Court has the power to grant an order in the terms sought by the pursuer under the Court of Session Act 1988, s. 47(2). The test for a s. 47(2) order is similar to that applying to interim interdict (ie prima facie case and balance of convenience). S 47(2) potentially confers broader powers. In support, she made reference to Ba Tech Wabag UK Limited v Morgan S. (Scotland) Limited 2002 S.L.T., 1290, in particular the discussion by Lord Drummond Young at paragraphs 24 to 26. She referred to the terms of section 47(2) of the 1988 Act and submitted that three principal questions arise under said subsection as explained by Lord Drummond Young.

"First, does the order sought relate to the subject matter of the cause? Secondly, has the pursuer made out a prima facie case for such order; thirdly, does the balance of convenience favour the making of such an order? The first question is one that arises out of the wording of the subsection. The latter two questions are identical to those that the Court must consider in an application for interim interdict, and in my opinion the approach of the Court to these questions should be similar in each case. Both interim interdict and an order under section 47(2) are provisional remedies, granted without any definitive hearing on the merits of the case; and both are designed to preserve matters pending the final outcome of litigation. These features call in my view for a broadly similar approach to the two remedies."

She submitted that was the proper approach if there was no direct remedy under section 18 and that all three questions should be answered in favour of the pursuer. She emphasised the breadth of the power of the Court under section 47(2) of the 1988 Act under reference to Scottish Power Generation Limited v British Energy Generation (UK) Limited 2002 SC 517.

7. A prima facie case under s. 47(2) is established as

- The relevant subject matter of the s. 18 claim is the trust fund.

- There is a prima facie case under s. 18 for an order setting aside the transfer by the first defenders to the second defenders.

8. The balance of convenience favours the pursuer.

- If the second defenders chose to distribute the trust fund (eg by advancing capital into separate funds for the children followed by dealing in those funds) that will prejudice her claim under s. 18. It will become difficult or impossible for her to pursue her s. 18 claim.

- Neither the second defenders nor the beneficiaries will be prejudiced by preservation of the operation of the trust ad interim.

[23] Senior counsel also referred to Lesley v Lesley 1987 S.L.T. 232. This is authority for the proposition that in the pre-existing "reduction" provision in the Divorce (Scotland) Act 1976 it was held that it was for third parties to aver themselves within the exception that reduction shall not prejudice a third party who has acquired property in good faith and for value. In the pleadings in that case there was a conclusion for interim interdict in relation to a third party (page 233 I-J). The decision in the case, however, was not concerned with said interim interdict and I do not find the case of assistance.

[24] In relation to interpretation, senior counsel cited Johnston v Johnston 1967 S.C. 143 in support of her proposition that in interpreting section 18, the interim orders envisaged in section 18(2) such as interim interdict could be made at any time after an application for setting aside had been made. The provisions were not to be interpreted restrictively as permitting interdict only when the setting aside application had been successful.

[25] Senior counsel then dealt with the points which had been raised by counsel for the second defenders. She referred firstly to Mansfield v Stewart. She submitted that decision turns on the facts and not on issues of competency. She stated that the Lord Justice Clerk recognised that he could exercise "our praetorian power" but he did not accede to the motion for interim interdict as this would be tantamount to the Court taking the management of the defenders' property into the Court's hands. She submitted that the case of D & J Nicol was not relevant as that case is concerned with issues relating to title to sue. In this case she submitted the pursuer has title to sue under section 18.

[26] Two new facts of potential significance were put forward by senior counsel. The first was that a beneficiary of the Trust was a fourth child born to a woman with whom the first defender is now living in Dubai. It was submitted that any advance or transfer of property to such a beneficiary might have a significant effect on the Trust estate presently in Scotland. It was also submitted that there were e-mails which indicated that the first defender was directing the trustees about the management of the Trust.

[27] In response, counsel for the second defenders summarised the submission previously made. He emphasised that interim interdict is a well established legal remedy and is subject to certain well-recognised rules and principles. In summary he submitted that whatever way the submission is presented on the part of the pursuer, in order to succeed the pursuer must be able to persuade the Court that the remedy of interim interdict, judged by well accepted principles, is available to her in relation to the second defenders with whom she has no legal relationship at all.

[28] Senior counsel for the pursuer invited me to grant interim interdict immediately. There was some discussion with the Court and between parties about whether the second defenders would volunteer some further temporary undertaking. It is to the credit of the second defenders and their counsel that they were prepared to recognise the concerns of the Court about interim protection until parties had the opportunity to consider my opinion. The second defenders do not accept that they are under any obligation to give any undertaking but they were prepared to give a new undertaking, and this was noted in the Minute of Proceedings. That undertaking states:

"that the second defenders will not alienate or burden the heritable property held by them in the Trust until 14 days after the issuing of her Ladyship's interlocutor allowing or refusing interim interdict, consequent upon today's hearing".

I consider that the second defenders and their counsel have acted responsibly in relation to this issue. I was not persuaded by senior counsel for the pursuer to grant interim interdict without further consideration of the issues.

The statutory provisions
[29] The 1985 Act provides:

"Orders relating to avoidance transactions

18.-(1) Where a claim has been made (whether before or after the commencement of this Act), being -

(a) an action for aliment;

(b) a claim for an order for financial provision, or

(c) an application for variation or recall of a decree in such an action or of an order for financial provision,

the person making the claim may, not later than one year from the date of the disposal of the claim, apply to the Court for an order -

(i) setting aside or varying any transfer of, or transaction involving, property effected by the other person not more than five years before the date of the making of the claim; or

(ii) interdicting the other person from effecting any such transfer or transaction.

(2) Subject to subsection (3) below, on an application under subsection (1) above for an order the Court may, if it is satisfied that the transfer or transaction had the effect of, or is likely to have the effect of, defeating in whole or in part any claim referred to in subsection (1) above, make the order applied for or such other order as it thinks fit.

(3) An order under subsection (2) above shall not prejudice any rights of a third party in or to the property where that third party -

(a) has in good faith acquired the property or any of it or any rights in relation to it for value; or

(b) derives title to such property or rights from any person who has done so.

(4) Where the Court makes an order under subsection (2) above, it may include in the order such terms and conditions as it thinks fit and may make any ancillary order which it considers expedient to ensure that the order is effective."

Discussion
[30] In retrospect I consider that it would have been an advantage in this case to have a hearing in which the pleadings were more developed and parties had advance notice of the submissions. Outline written submissions would also have been of assistance. The case was not presented in that way. It will be apparent from my summary of the submissions that counsel were developing submissions over a period of time.

[31] This action by the pursuer is at a very early stage and I accept that there may be difficulties for the pursuer in setting out at this stage a developed case in relation to the defenders. I make no criticism of counsel for the fluid nature of their factual and legal submissions. I consider that the original factual basis, on which the pursuer obtained interim interdict in relation to the second defenders who were not represented, has changed. One change which I consider to be significant is that counsel for the pursuer did not maintain before me that the second defenders were holding property in Scotland on behalf of the first defender. Nevertheless there were serious allegations made on behalf of the pursuer which prima facie formed the basis for a conclusion under section 18 of the 1985 Act seeking an order setting aside the transaction by the first defender which funded the trust estate held by the second defenders. The pursuer's pleadings are summarised in paragraph [11]. The pleadings include an averment "believed and averred that the first defender exercises a degree of control over the trust".

[32] The second defenders seek to rely on the provisions of section 18(3) in resisting the setting aside order. The second defenders do not seek to dispute that approximately 3 million pounds was provided by the first defender for the purchase of the trust property. The pursuer avers that the sum involved was 6 million pounds. I understand that the trust property comprises assets, mainly heritable property in Scotland, which is operated by the second defenders as a working farm. The powers of the second defenders under the trust deed are very wide and the beneficiaries of the trust do not include the pursuer. The trustees owe the pursuer no obligations. I am well satisfied that there is plainly a potential risk that the second defenders may seek to use their powers to protect the existing beneficiaries as there is now an action by the pursuer seeking an order for setting aside. At this stage of proceedings, I have no difficulty at all in concluding that the pursuer has title and interest and a prima facie case to seek an order for setting aside. I also have no difficulty in concluding that if the pursuer has no interim protection by way of an undertaking from the second defenders or the protection of interim interdict, there is an obvious and significant risk that even if she is successful in her claim, there may be no significant assets owned in Scotland in the trust at the date her claim is determined. I take into account that the pursuer has a substantial claim for a capital sum and that the background to the case includes serious allegations of deception by the first defender of the pursuer and a transfer of his assets to Dubai where he lives with the mother of one of the child beneficiaries of the trust. In these circumstances, if I had the power, I would not hesitate to grant interim interdict in some terms in favour of the pursuer in order to ensure that the trust property was protected and not disposed of pending the outcome of the litigation.

[33] Counsel for the second defenders submitted that in principle no interim interdict could be granted to the pursuer in respect of the second defenders. That submission is partly based on statutory interpretation but is also underpinned by his submission to the effect that interim interdict is a remedy which is subject to well recognised principles which includes the requirement of a title to sue for interim interdict. The discussion about title to sue shaded into a discussion about competency as sometimes happens in relation to these concepts.

[34] Let me deal firstly with the issue of statutory interpretation. I have considered in some detail the terms of section 18 of the 1985 Act. To the extent that counsel for the pursuer sought to rely on the provisions in section 18(1)(b)(ii) I conclude that these sub-sections do not assist the pursuer. In my opinion, "the other person" specified in section 18(1)(b)(i) in the context of this case is plainly the first defender. Section 18(1)(b)(i) which provides for interdicting "the other person" applies to the first defender and cannot be interpreted as applying to the second defenders in the context of this case. In my opinion if a remedy for the pursuer of interim interdict against the second defenders is to have a foundation in the statutory provisions, it can only be found in section 18(2). The wording in section 18(2) is very wide and provides if the principles set out in section 18(2) are satisfied that a setting aside order "or such other order as it thinks fit" may be made by the Court. It is plain from the terms of section 18(3) that both the setting aside order or such other order may affect a third party. Section 18(3) gives specific protection for third parties in certain circumstances. Thus I interpret section 18(2) as plainly permitting the Court to make an order of interdict or interim interdict which may affect third parties. But looking to the wording of section 18(2) the question arises, is the Court restricted to making such an order only at the time it has come to the conclusion that "it is satisfied that the transfer or transaction had the effect of, or is likely to have the effect of, defeating in whole or in part any claim referred to sub-section (1)". If section 18(2) was interpreted in that way, that would mean that until the Court had heard the evidence and made a decision, it could make no "other order" for example to preserve assets pending the outcome of the Court's decision. That in my opinion seems an unlikely outcome in statutory provisions which plainly relate to avoidance transactions and are designed to give remedies in respect thereof. If the statutory provisions were plain in their terms to that effect, that would be an end of the matter. But I am not persuaded that the statutory provisions have such a meaning. It should be noted that section 18(4) makes provision about what the Court may do at the stage it makes an order of "setting aside". At that stage the Court is given power to include in the order such terms and conditions as it thinks fit and may make any ancillary order which it considers expedient to ensure that the order is effective. I interpret section 18(2) as giving power to the Court to give consideration to the matter of setting aside by the trigger of an application under sub-section (1). Such an application has been made in the present case. Obviously at this early stage the Court is not in a position to come to a final view as to whether the Court is satisfied that the transfer or transaction had the effect of, or is likely to have the effect of, defeating in whole or in part any claim. The Court also cannot come to a final view about the facts and implications of section 18(3). In my opinion, however, that does not mean that the Court is not entitled to come to a prima facie view, as it must in an interim interdict case, about these matters. In such circumstances I consider that the Court is entitled to grant "such other order" as the Court thinks fit and that this includes interim interdict if the Court is satisfied that interim interdict should be granted having considered prima facie case and balance of convenience.

[35] In support of my interpretation of section 18(2) I draw some support from the approach adopted by the Court in Johnston in relation to avoidance provisions under pre-existing legislation, The Succession (Scotland) Act 1964. I accept that the wording is different and that interpretation ultimately will depend upon the wording of a particular section. I may add that I note also that the issue in that case was dealt with on the basis of competency. In my opinion whether the submission of counsel for the second defenders is considered on the basis of title to sue or competency, I am satisfied that the submission is not well founded.

[36] If I am wrong about the interpretation of section 18 of the 1985 Act, I do not consider that any assistance for the pursuer is to be found in section 47(1) of the 1988 Act. If there is no competent crave for interdict in term of section 18 of the 1985 Act, I do not consider that section 47(1) would permit the Court to grant an interim interdict where the interdict sought was plainly not competent under the statutory provisions founded upon by the pursuer.

[37] Senior counsel for the pursuer widened the submission under reference to the 1988 Act and sought to rely on section 47(2) as a fall back position in relation to interim interdict. I do not consider that her submission is well founded as I do not consider that section 47(2) of the 1988 Act applies to interdict and interim interdict. I consider that section 47(2) applies to interim orders other than interim interdict. Senior counsel relied on Ba Tech Wabag UK Limited in support of her submission. It is plain however from a close reading of that case that the Lord Ordinary in considering section 46 or section 47 of the 1988 Act was doing so in the context of an order ordaining the defenders to consent to and assist the transfer of monies (paragraph [8]). Although the Lord Ordinary was also dealing with submissions about interdict, his references to section 47 of the 1988 Act have to be seen in the context of interim orders other than interim interdict. It may be that if no remedy of interim interdict was available to the pursuer in this case, that some other interim order might be considered in terms of section 47 (2) in order to provide some form of protection. I was not however addressed in relation to this matter.

[38] Underpinning the submission of counsel for the second defenders was his reliance on the common law principles regulating interdict and interim interdict and in particular the case of Mansefield v Stewart. I am not persuaded by his submission. I consider that counsel for the second defenders seeks to extend the ratio of said case too far. The case was not concerned with a situation, for example, where a reduction was sought on the basis of fraud and an interim interdict was sought seeking to preserve the property until the Court could make a determination of the matters in dispute. I do not interpret the Mansefield case as being authority for the proposition that where reduction is sought, the Court will never grant a remedy of interim interdict against the apparent owner of the property in dispute. It is plain from the short Opinion of the Lord Justice Clerk that he was not persuaded that in the particular circumstances of said case "that a man alleging himself to be the true heir at law, and bringing an action, was in right to control a vested proprietor in the administration of his estate". The policy which troubled the Lord Justice Clerk was that in consequence "there is no estate in Scotland which might not be affected by such an exercise of our praetorian power". In the present case the terms of the interim interdict originally granted and the terms of the interim interdict sought do have the potential to bring the Court into aspects of management of the estate and disputes about management. I consider, however, that is a separate matter from the issue as to whether or not in principle the Court should refuse to grant an interim interdict to protect the pursuer until the issues in the present case are resolved. It is not disputed that the pursuer requires title and interest to seek interim interdict. I do not consider that D & J Nicol founded upon by the second defenders' counsel assists with the determination as to whether or not in the circumstances of this case the pursuer has such title and interest.

[39] In considering the balance of convenience, I am satisfied that favours the pursuer. Nevertheless I consider that the submission by counsel for the second defenders is well founded in relation to the terms of the interim interdict sought in the minute of amendment (11 of process). Granting interim interdict is always a balancing exercise and I consider that the powers and duties of the second defenders in administering the trust property must be considered in that balance. The pursuer has no interest at present in the trust estate and the trustees are responsible for administering heritable property in Scotland as a working farm. I am satisfied on the basis of ex parte statements that involves considerable detailed administration of some complexity. I am not persuaded that the Court should be involved in such administration at this early stage of proceedings. I am satisfied that the pursuer requires the protection of interim interdict but I consider that should be carefully balanced in relation to the legitimate interests of the second defenders in administering the trust estate. I understood from the submissions on behalf of the second defenders that no further undertakings are to be offered. In these circumstances I am satisfied that the pursuer has a prima facie case and on the balance of convenience requires the protection of interim interdict as there is no other protection offered to her. The protection should be restricted in so far as possible to allow the second defenders to carry out their duties and powers as trustees without undue dispute or difficulty. Having balanced the considerations, I exercise my discretion and grant interim interdict to the pursuer but on a more restricted basis than sought by the pursuer. I therefore grant the pursuer interim interdict in the following terms:

"that the second defenders will not alienate or burden the heritable property held by them in the trust and that in the event the second defenders seek to do so, they will not do so without the express permission of the Court".

[40] I appoint the case to the By Order roll in relation to expenses.