Scottish Court of Session Decisions

Petitioners: MacGregor, Advocate; Civil Recovery Unit

Respondent: Party

28 January 2010

Introduction

[1] In my earlier opinion I concluded that I should make a recovery order in the terms sought in the prayer of the petition. However, I left open for consideration the question as to whether I should grant the prayer of the petition subject to a condition that the Scottish Ministers should repay a certain amount. That question arose as a result of an observation by senior counsel for the Scottish Ministers in the context of whether some of the mortgage repayments might have been made from legitimate income. I put the case out by order and I suggested that Mrs Smith might wish to seek legal advice on that issue.

[2] In the event, Mrs Smith did obtain legal advice and counsel appeared, instructed by agents. However, having given Mrs Smith certain advice on this and other aspects of the case, counsel and his instructing solicitor sought, and were granted, leave to withdraw. Thereafter, Mrs Smith continued to represent herself, as she had done throughout the proof. She was content to proceed with the By Order hearing.

[3] Mr MacGregor, on behalf of the petitioners, moved me to grant the prayer of the petition without making any order for repayment by the Scottish Ministers to Mrs Smith. He developed his submissions under three heads. First, he pointed out that the loan obtained by Lee Smith and Mrs Smith to purchase the property at 5 Briarcroft Drive was obtained on an interest only basis, as a result of which there was no reduction of the capital sum by the monthly payments. Nor had there been any one‑off capital repayment. In the mortgage application Mr and Mrs Smith had indicated that repayment of the capital sum was to be by means of an endowment policy. Mr MacGregor explained that the petitioners were not aware of such a policy being in place. If there was one in existence it was not caught by the prayer in this petition.

[4] Secondly, Mr MacGregor submitted that the issue was not in any way canvassed in the pleadings; the answers were skeletal and Mrs Smith had perilled her case on putting the Scottish Ministers to the proof. Thirdly, he pointed out there had been no evidence to suggest that there had been any repayment of the mortgage interest from legitimate funds. There was no basis upon which I could identify any repayment to be made by the Scottish Ministers.

[5] Faced with these formidable difficulties Mrs Smith very properly conceded that she could not advance any basis on which I could impose a condition that the Scottish Ministers make a repayment.

[6] In these circumstances I now grant the prayer of the petition and make a recovery order in respect of the entire property listed in the schedule. Mr Macgregor moved for the expenses of the proceedings, which motion was not opposed by Mrs Smith. Accordingly, I shall make an award of expenses in favour of the petitioners.