Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010 CSOH 119]
A2113/02	OPINION OF LORD BRODIE in the cause EDAN HUGH NELSON KENNEIL Pursuer; against (FIRST) DAMON BALFOUR NELSON KENNEIL and (SECOND) ALISTAIR THOMAS NELSON KENNEIL Defenders:­­­­­­­­­­­­­­­­­ __________

Reporter: G Hawkes; Shepherd & Wedderburn

Party Present: Caroline Kenneil

20 August 2010

Introduction

[1] This Opinion is concerned with two motions enrolled at a relatively late stage in an action of division and sale where much of the earlier procedure has been before Lord Glennie. Some of the matters that Lord Glennie has had to decide are discussed in his Opinions dated, respectively, 18 January and 16 June 2006. I heard argument on the motions on 8 July and 12 August 2010. Given the nature of that argument, the history of the case, the participation of a party litigant and the possibility that matters may go further, I have thought it proper to express my decision in writing and at greater length than might otherwise have been thought necessary.

[2] The action relates to certain lands and fishings comprising Ardpatrick Estate, Argyll ("the Estate"). It was brought at the instance of Edan Hugh Nelson Kenneil ("Edan") against his brothers: the first defender, Damon Balfour Nelson Kenneil ("Damon"); and the second defender, Alistair Thomas Nelson Kenneil ("Alistair"). The brothers were formerly resident on the property. Alistair is married to Mrs Caroline Kenneil ("Caroline"), although they are now estranged and live separately, albeit on good terms. They have children, Ivor John Walter Kenneil ("Ivor"), Laura Frances Bonnie Kenneil ("Bonnie") and Jeanne Gabrielle Cara Kenneil ("Jeanne").

[3] Before turning to the motions which came before me it is convenient to set out some of the history of the action which has not been entirely straightforward.

History of the action

[4] The summons was signetted on 15 August 2002. As at that date the Estate was held pro indiviso in equal shares by Edan, Damon and Alistair. The Closed Record in the action, dated November 2003, discloses differences of view as among the three brothers as to how their respective interests should to be divided out. Put shortly, Edan proposed sale of the property and division of the price, Damon proposed a division, and Alistair, anxious that the property did not pass out of family ownership, proposed that he buy out Edan at a price equal to one third of the valuation of the whole. Caroline was then living with Alistair and shared his wishes in the matter.

[5] On 31 March 2004 the court, in terms of RCS 45.1 remitted to Andrew Rettie FRICS, a partner in Strutt & Parker ("the Reporter") to report on the points contained in the Note of Issues, number 18 of process. The Reporter reported in terms of Report, number 19 of process. On 12 May 2004, his report having been approved, the Reporter was appointed to conduct the sale of the property in lots or as a whole. The effect of the interlocutor of 12 May 2004 was to appoint Mr Rettie, as selling agent to conduct a sale of the Estate, as provided for by Rule of Court 45.2(1). It is in the capacity of selling agent that Mr Rettie has acted since 12 May 2004 but in this process he has continued to be described as "the Reporter" and that is the usage that I shall adopt. The Reporter instructed Messrs Shepherd and Wedderburn to act as his solicitors in the sale and in relation to the court process.

[6] The interlocutor of 12 May 2004, appointing the Reporter as selling agent, allowed any one or more of the three pro indiviso proprietors to bid for and purchase the subjects. A bid submitted by Alistair in the sum of £3.7 million, was successful. Missives (the "first missives") were concluded on 20 September 2004. In terms of the first missives, Alistair paid a deposit of 10% (£370,000). The date of entry was agreed to be 1 December 2004. Alistair, however, failed to pay the balance of the price at that date. On 8 April 2005, on the application of the Reporter by Note and having considered his Report, number 31 of process, the court authorised the Reporter inter alia to resile from the first missives, on the basis that Alistair had been in material breach of contract, and to contact three under-bidders, Caledonian Trust plc ("Caledonian"), Angus Estates Limited and Adam Besterman, with a view to a re-bidding process being commenced.

[7] A consequence of Alistair's breach of the first missives was his forfeiture of the deposit of £370,000, a sum Caroline contends was advanced by her. Lord Glennie eventually determined that the deposit should be dealt with as part of the proceeds of sale, as explained in paragraph [24] of his Opinion of 16 June 2006.

[8] On 21 September 2005 the court, on the unopposed motion of the Reporter, received his Report, number 35 of process, seeking to conclude missives of purchase and sale with Caledonian at a price of £2,558,775, and for warrant to serve his Report on the parties and on Caroline, Ivor, Bonnie, Jeanne, and Messrs McClure Naismith, for their interest under personal bonds and standard securities granted by Alistair over his one third interest in the Estate between March and May 2005. The standard securities were four in number. They are identified in paragraph 4 of number 35 of process. Two, were in favour of Caroline, one in favour of Ivor, Bonnie and Jeanne, and one in favour of McClure Naismith. According to the Report number 35 of process, the sums secured totalled £1,033,106.51, of which a total of £739,606.51 was due to Caroline, although I do not understand these sums to have been vouched. That is a matter to which I shall have occasion to return. Alistair's entitlement to one third of the proceeds of the sale to Caledonian amounted to £852,925 before deduction of his share of the expenses of sale.

[9] With the service on them of Report number 35 of process in terms of interlocutor of 21 September 2005, I would see Caroline, Ivor, Bonnie, Jeanne, and McClure Naismith as having been convened as parties to the cause, a matter confirmed by the terms of the interlocutor of 20 October 2005 and Lord Glennie's observations, under reference to RCS 53.8, at paragraph [33] of his Opinion of 18 January 2006. Alistair and Caroline had previously been represented by solicitors (and Alistair at least, by counsel) but at the hearing on 20 October 2005, at which both Alistair and Caroline appeared personally, together with Ivor, Bonnie and Jeanne, they were not. The interlocutor records that the relevant parties had indicated that they intended to proceed with the action, that Alistair and Caroline would be self-represented and that Bonnie would be allowed to be self-represented but also allowed to represent Ivor and Jeanne.

[10] Alistair, Caroline and Bonnie then appeared at the hearing which concluded on 17 November 2005 when, as appears from paragraph [4] of Lord Glennie's Opinion of 18 January 2006, he made orders on such points in the Report as were necessary to be dealt with in order to enable the sale to proceed, leaving over for further argument all questions relating to the manner in which the Reporter should deal with the sale price when received and, in particular, any arguments about the payment and discharge of the securities. Lord Glennie appointed parties to exchange pleadings, notes of argument and lists of authorities relating to these questions and fixed a hearing for 9 and 10 January 2006. The scope of that hearing at which Alistair was represented by counsel, whose submissions Caroline and Bonnie adopted, appears from the terms of Lord Glennie's Opinion of 18 January 2006. What was in issue at the January hearing was whether what would otherwise be Alistair's share of the proceeds of sale, should be consigned with the Accountant of Court to await the outcome of proposed claims against Alistair at the instance of Edan and Damon for damages and reduction of the standard securities as fraudulent preferences, as proposed by the Reporter in terms of paragraph 5(xiii) of his Report number 35 of process. The Reporter presented this as an alternative in whole or in part to the authority he sought in paragraph 5(viii), to pay off the standard securities. That issue was resolved by Lord Glennie in favour of Alistair on the basis that the Reporter was acting as an officer of the court and not simply as the agent of the proprietors, and therefore Edan and Damon had no title to sue Alistair for damages for breach of the first missives.

[11] On 2 February 2006 the court made certain further orders, including an order authorising the Reporter to retain a sum equal to an estimate of his fees, outlays and other expenses. The case returned to court on 18 May 2006 on a motion by Caroline which was continued to 6 June 2006. Over 6 June and the following three days Lord Glennie heard a number of motions which were determined in the manner described in his Opinion of 16 June 2006. At that hearing Caroline represented both herself and Alistair. Bonnie was also present.

[12] The interlocutor sheet does not indicate anything happening between 6 July 2006 (when a figure in a previous interlocutor was corrected in terms of RCS 4.15(6)) and 28 November 2008 when the case called on the motion of the Reporter. That was in obedience to one of the orders made on 9 June 2006, whereby the Reporter was ordained to "bring the matter back before the court by motion after taxation of the fees claimed and to be claimed by Shepherd and Wedderburn".

[13] Number 101 of process is a Report by the then Auditor of Court dated 7 June 2007 consisting of a single sheet and stating that the Auditor has examined the files, time records and papers submitted to him and that:

"The Auditor now taxes at ONE HUNDRED AND SEVENTY ONE THOUSAND FIVE HUNDRED POUNDS (£171,500.00) the fees, inclusive of posts and incidental expenses, due to Shepherd and Wedderburn, LLP, Solicitors, for their whole work and responsibility in the period from May 2004 to the conclusion of the transaction and to include all matters outstanding with the Accountant of Court. To the said sum there falls to be added VAT, £30,012.50, outlays incurred and the Auditor's fee, £6860.00"

[14] When the case called on 28 November 2008 Alistair, Caroline and Bonnie were personally present. The other parties were represented by counsel. Counsel for the Reporter outlined a proposal that Shepherd and Wedderburn would restrict their fees to what had been retained in terms of interlocutors of 2 February and 6 June 2006. In broad terms this would have meant Shepherd and Wedderburn applying £35,000 to outstanding fees and foregoing payment of £31,000, provided all parties claiming any interest in the matter agreed. In terms of interlocutor of 28 November 2008 Lord Glennie ordered parties to consider the proposal and for the Reporter and Caroline and Bonnie to exchange documents stating their positions, including their positions on the right of Caroline and Bonnie to oppose the Reporter's motion. Matters were not resolved. On 4 December 2008 Lord Glennie ordered Alistair and/or Caroline to vouch, by 18 December 2008, the sums which had been secured by standard security over Alistair's interest in the property. He ordered the Reporter to respond, setting out whether he accepted that Caroline was entitled to object. The motion was continued to a date afterwards to be fixed.

[15] That Alistair was agreeable to the proposal to compromise on Shepherd and Wedderburn's fees appears from an e-mail copied to the clerk of court on 24 January 2009. It is in the following terms:

"Sirs, Madam

I withdraw opposition to the motion by the Reporter and Shepherd and Wedderburn heard last on December 4 2008 and accept the proposals put forward by the Reporter and Shepherd and Wedderburn on 28 November 2008, copied below

yours sincerely

Alastair Kenneil

Second Defender"

The Reporter's motion

Summary of procedure adopted

[16] The action came before me, on 8 July 2010, on a motion, on behalf of the Reporter, (i) to approve the Report of the Auditor of Court No. 101 of process; (ii) to allow Shepherd and Wedderburn to apply the funds retained by them and held by the Accountant of Court for the purpose of settlement of certain of their outstanding fees and outlays; and (iii) to find the pursuer, the first defender and the second defender jointly and severally or severally liable for the balance of Shepherd and Wedderburn's fees and outlays after application of the retained funds as aforesaid. This was a re-enrolment of the motion previously enrolled on 25 November 2008 with a view to it calling on 28 November 2008. Before me, the motion was opposed by Caroline but not by any other party. Having heard counsel on behalf of the Reporter and Caroline in person and having run out of court time, I continued the motion until 12 August 2010 with a view to better acquainting myself with the history of the case by considering the previous interlocutors and the Opinions of Lord Glennie. I then prepared a Note setting out my provisional views based on what had been submitted on 8 July 2010 and what appeared from my reading of the material in the process and additional material provided by Caroline to my clerk subsequent to the first hearing. The purpose of the Note was to set out my understanding of the history of the action in brief and objective terms and to put parties on notice of what appeared to me to be the issues. Caroline appeared as a party litigant. Having regard to everything that had been said on 8 July, I considered it to be particularly important that Caroline understood what I understood to be the relevant background and that she had the opportunity to correct any misapprehensions on my part.

[17] When the matter came back before me on 12 August 2010 I asked Caroline and counsel for the Reporter to point out to me any factual errors which appeared in the Note. Caroline indicated that she considered my history of the case as being far from complete but neither she nor counsel pointed to any specific error. I then heard further submissions from Caroline and counsel.

Submissions for the Reporter on 8 July 2010

[18] Counsel for the Reporter took me through some of the history of the case, upon which I have already touched, and referred me to a Summary of Reporter's Financial Position as at 28 November 2008, brought up to date, number 109 of process ("the Financial Summary"), and Summary of Reporter's Position in relation to Mrs Caroline Kenneil's Title to Oppose the Reporter's Motion. Put shortly, the financial position placed before me was that Shepherd and Wedderburn's fees and outlays had been audited at £240,145.25 (I take that to be the Auditor's taxed figure of £171,500 plus VAT plus outlays as incurred and the Auditor's fee of £6860 as brought out in 101 of process). Of that, £169,995 had been paid, producing a gross shortfall of £70,151.23. Against the gross shortfall Shepherd and Wedderburn had retained £41,690.05, producing a net shortfall in fees and outlays of £28,460.18. As far as Caroline's title to oppose the motion was concerned, counsel conceded that she had title by virtue of being Alistair's creditor and the former holder of a standard security, provided that part of the formerly secured sums remains outstanding. Lord Glennie's interlocutor of 4 December 2008 had required that to be vouched. That, so counsel submitted, had not been done. Counsel submitted that, failing satisfactory vouching of Alistair's continued indebtedness to her; Caroline had not demonstrated that she had the requisite title and interest to oppose the Reporter's motion.

[19] The Financial Summary includes copies of letters from Shepherd and Wedderburn to the Auditor dated 9 October, 10 October and 11 December 2006 and letters sent on behalf of the Auditor dated 15 November 2006. One of the letters of 15 November was sent to Alistair and Caroline. Beyond what appears from this correspondence counsel gave me the following information about "the taxation of the fees claimed and to be claimed by Shepherd and Wedderburn", to use the terminology of Lord Glennie's interlocutor of 9 June 2006. Chapter 45 of the Rules of Court makes no special provision for the taxation of what are referred to in RCS 45.2 (4)(a) as the "expenses of sale". Counsel submitted that what had occurred was what was referred to in Maclaren on Expenses at page 422: "The Auditor may be called on by the court to tax accounts of expenses for non-contentious business." Counsel accepted that it had been anticipated that there would be a diet of taxation, as appeared from the letter of 9 October 2006. That did not occur. Some thirty files were sent to the Auditor under cover of letter of 11 December 2006, four being in relation to "Ardpatrick Litigation". That there was a litigation component would perhaps explain why in their letter of 9 October 2006 Shepherd and Wedderburn ask for consideration of the award of an additional fee "under the heads a, b, c, e and f" (see the provisions for allowance of an additional fee in RCS 42.14). No time and line account was submitted.

[20] Counsel drew my attention to correspondence through which Shepherd and Wedderburn, on behalf of the Reporter had (unsuccessfully) endeavoured to negotiate with Caroline the compromise on fees that I have alluded to as having first been advanced on 28 November 2008. I was advised by counsel that whereas Caroline was maintaining opposition to the motion, Alistair, together with Edan and Damon, had, for their respective interests, agreed a compromise proposal which would have involved Shepherd and Wedderburn writing off some £31,00 of their fees. However this compromise had been put forward as contingent on Caroline consenting to it and withdrawing opposition to the motion. This she had not done.

Submissions by Caroline on 8 July and 12 August

[21] When she came to address me on 8 July 2010 and indeed when she resumed her submissions on 12 August 2010, it was clear that Caroline wished to impart a lot of information. While this was not always easy to assimilate, I had previously read and re-read the written Opposition to the motion and between 8 July and 12 August I read Lord Glennie's Opinions, the written material previously submitted to the court by Caroline, the bundle number 116 of process and the letter addressed to my clerk and dated 14 July 2010. Caroline had a number of complaints. She criticised the conduct of the sale. She accused the Reporter, Shepherd and Wedderburn, Damon, Damon's agents and Caledonian of various sorts of misconduct and unlawful behaviour. The allegations against the Reporter and Shepherd and Wedderburn included acting in a situation of conflict of interest and in breach of the fiduciary duties owed to those having an interest in the proceeds of the sale. She said that the Reporter had deliberately contrived matters so that Caledonian acquired the Estate at an under-value. As appears from paragraph [19] of Lord Glennie's Opinion of 16 June 2006 allegations of this sort were made to him at the hearing on 6 June 2006 and the following days. I would also refer in this connection to what Lord Glennie said at paragraphs [21] to [23] of that Opinion. Caroline's position was that given the manner of the conduct of the sale the Reporter was not entitled to his fee or his outlays in the form of legal expenses. Moreover, she had been denied the "taxation" of Shepherd and Wedderburn's account, which had been promised to her. There had been no transparency in the conduct of the sale. It had never been explained why a judge would deny her and Alistair information about the sale of "our own property". Caroline wished the court to inquire into the misconduct of its temporary officer, the Reporter. The "court's employees" had unjustifiably enriched themselves. There had been "jiggery-pokery". She also wished redress for the losses suffered by her family as a result of this misconduct.

[22] In the Note that I had distributed to parties following the hearing on 8 July I drew attention to Lord Glennie's interlocutor of 4 December 2008 ordering Alistair and/or Caroline to vouch, by 18 December 2008, the sums which had been secured by standard security over Alistair's interest in the property. Lord Glennie's purpose was to ascertain the basis upon which it was said that Caroline had title and interest to oppose the Reporter's motion. In my Note I stated that I would expect to be provided with adequate vouching when the motion called again on 12 August 2010, whether in the form of something previously put forward or otherwise. At the beginning of the hearing on 12 August I therefore asked Caroline to point me to all the vouching that she relied on as demonstrating the relevant continuing indebtedness. In response Caroline confirmed that she relied on the contents of number 110 of process, although she could not understand what business it was of Shepherd and Wedderburn as to what debts were owed to her. She had supported the Estate from her own funds since 1992. She had expended her time, acting as an unpaid factor on the Estate. It could be proved that she had financed the Estate albeit that matters had not been conducted on the basis of "business to business" invoices. She had not kept documents over and above those she had supplied to "the Judicial Factor" (I understood this as a reference to a matter relating to the affairs of a partnership among Edan, Damon, Alistair and, originally, their mother and a half-sister which had carried out a business on the Estate). When asked what was the sum that she maintained was owed to her by Alistair as of 12 August 2010, she replied "I have not thought about it". She was not looking to Alistair for repayment of any sum.

[23] When asked by me as to what her position was in relation to taxation and, in particular, whether there should be a further taxation of Shepherd and Wedderburn's account, Caroline said that she did not wish to go to taxation. Rather she wanted a hearing in court at which not only the reasonableness of Shepherd and Wedderburn's fees but their entitlement to those fees could be explored, at no cost to any party. When asked whether she had an alternative position to that, she replied that she wished the opportunity to inspect Shepherd and Wedderburn's files and then, if she formed the view that they were excessive she should have the opportunity to return to court and argue accordingly, again at no cost to parties. She was not inclined to employ a law accountant to assist in the task.

Submissions for the Reporter on 12 August 2010

[24] In replying on 12 August, counsel confined himself to two points: Caroline's status in relation to the Reporter's motion and the practicalities of any further taxation of Shepherd and Wedderburn's account. As to Caroline's status, she had failed to establish by adequate vouching that she remained a creditor of Alistair and it was only through being a formerly secured creditor that she could claim to participate in any surplus of funds in the hands of Shepherd and Wedderburn and the Accountant of Court. Despite the fact that Lord Glennie had pronounced his interlocutor as long ago as 4 December 2008, no coherent statement had been provided of liabilities as against the payments (totalling some £525,0000) which had been made to Caroline by the Reporter in response to his request for a redemption figure. If regard was to be had to what was said by Caroline she did not appear certain as to what was owed, something appeared to be owed by a partnership and, in any event, she did not intend to ask for payment. Accordingly, Caroline did not have title and interest to oppose the motion for approval of the Auditor's Report. It was to be borne in mind that she was not being asked to pay any part of Shepherd and Wedderburn's fees. Those who were had not opposed the motion. As far as taxation was concerned, whatever may be said about the way he had gone about it, the Auditor had purported to tax the relevant fees. It was the case that it had been anticipated that he would have fixed a diet of taxation but, he having not done so, it was questionable as to whether there as any practical purpose in making provision for further taxation. Counsel had instructed inquiry as to the likely cost of the preparation of a time and line account and then its taxation at a two day diet. Preparation of the account by a law accountant would cost about £10,600 plus VAT. Preparation for and attendance at a diet of taxation by the law accountant and relevant fee earner, together with the Auditor's 5% fee would bring the total cost to the Reporter (to be met by the paying parties) to about £34,000. At present, the amount of unpaid fees stood at a sum in excess of £70,000. Thus, unless Shepherd and Wedderburn's fees were reduced on further taxation by something in excess of £100,000, thereby increasing the free proceeds of sale, there would be no financial benefit to Caroline. It was, however, clear that Caroline's complaints about the whole conduct of the sale went far beyond the quantification of Shepherd and Wedderburn's fees. No taxation would satisfy or even address these complaints. The longer this process continued the more expense would be incurred by the Reporter which he was entitled to look to the defenders in the action to reimburse. It was simply not fair to impose on the paying parties, who had not opposed the Reporter's motion, this further expense. If there was to be further procedure at Caroline's instance it should be conditional on her providing caution as against any finding of expenses that may be made against her.

Caroline's motion

[25] Between the hearing on 8 July and the continued hearing on 12 August Caroline enrolled a lengthy motion, the terms of which can be seen from the motion sheet. It was not clear from what appears on the motion sheet what it was that Caroline wished the court to do. I therefore invited her to summarise what it was that she sought from the court. With admirable brevity she explained that what she had enrolled for was for the court to put right what had gone wrong as a result of fault on the part of the court's officials and to provide redress to her and her family. As I understood Caroline's reference to "redress" it certainly would include monetary damages but also reduction of the missives with Caledonian and all subsequent dispositions of the Estate.

[26] It appeared to me that what Caroline wished to raise in her motion was comprehended within what she had already said in opposition to the Reporter's motion and therefore I neither required her to elaborate further nor required counsel to respond.

Discussion and Decision

Caroline's title to oppose the Reporter's motion

[27] Caroline came to be a party to this process through the service on her of the Report number 35 of process. She is therefore entitled to appear as a party litigant on her own behalf. Subject to a matter to which I shall come, that is all that she claimed to be.

[28] Being a party to an action (as Caroline has been since 2005) does not necessarily confer title and interest. I confess to retaining some doubts as to Caroline's title, even were it the case that she remained an unpaid creditor of Alistair in respect of formerly secured indebtedness, at least where Alistair himself has appeared as a party to the process, but the point was conceded by the Reporter, subject to Caroline vouching that she remains a creditor. However, it was counsel's position that Caroline had failed to vouch that she continued to be creditor, despite being ordered to do so by Lord Glennie and the request made by me in the Note issued following the hearing on 8 July 2010.

[29] Caroline relied on what was contained in number 110 of process for the purpose of demonstrating her title to oppose the Reporter's motion. This document consists of 14 sheets faxed to the General Department and bearing a stamp indicating its receipt on 18 December 2008. It would appear to be drafted by Caroline. It is not self-explanatory. The matters referred to are heterogeneous. They include, a list of "expenses paid for Alastair", and "funds loaned to Alastair Kenneil", but also outlays and claimed losses on a house sale, "partnership bills" and sums in relation to damage to property the responsibility for which is attributed to Edan. The document includes references to services provided by Caroline. It is not entirely clear whether she would attribute a charge to these services. If so, these items would be open to the observation that, accepting the services as having been rendered and that they accrued to the benefit of Alistair, they are not such as would usually be regarded as giving rise to a debt as between husband and wife living together. The same might be said about contributions to household expenses and the payment of school fees. When one spouse makes a payment which may in some way benefit the other spouse or meet an obligation owed in whole or part by the other spouse the natural inference is not that the paying spouse thereby becomes the creditor of the other spouse. Payments made by one spouse are usually assumed to be for the benefit of both. My strong impression that such payments that Caroline may have made from time to time and the services she may have rendered were not originally intended to result in a debt owed to her by Alistair, was reinforced by the way she spoke of the matter in oral submission. She had not applied her mind to what might be owed. She did not intend to seek payment from Alistair. That I found entirely natural but not indicative of a relationship of debtor and creditor. However, what I see as fatal to 110 of process as a voucher of debt is that it is a document generated by the supposed creditor and not the supposed debtor. It contains no acknowledgement of debt. There are included within 110 of process what may be supporting vouchers but to the extent that they are legible they relate to relatively modest sums when compared to the £525,000 already paid to Caroline by the Reporter. Moreover, the document makes no attempt to present something of the nature of an account in the sense of a balancing of sums originally owed as against payments received which are to be set against the sums owed. I considered the terms of the two standard securities granted by Alistair in favour of Caroline. Whatever the purpose of executing these securities their terms do not assist in establishing what Alistair may have at any time owed Caroline. They are for all sums due, without further specification. Neither Caroline nor counsel referred to the Report number 35 of process. What appears in paragraph 4 of that Report is that initially agents for Alistair and Caroline refused to provide redemption figures for the sums secured but then did so. No other source of information is identified. Caroline did not rely on number 35 of process. Accordingly, I am not satisfied that Caroline has vouched any outstanding indebtedness as she was required to do in terms of Lord Glennie's interlocutor of 4 December 2008 and as was requested in my Note. I accordingly agree with counsel that she has not demonstrated title and interest to oppose the Reporter's motion.

[30] As I have already indicated, in the course of her submissions Caroline explained that she was appearing on her own behalf. However, at the hearing on 8 July she put before me a copy registered assignation (the "first assignation") by Alistair (in the assignation the spelling is "Alastair", which I take to be correct but I have retained the spelling used in the pleadings) in her favour of "my whole right, title and interest in any claim I may have against (1) Andrew Rettie (2) Strutt & Parker ...and (3) Shepherd and Wedderburn LLP ...in connection with the sale known as Ardpatrick ..." The Assignation was signed by Alistair on 25 January 2010. At the hearing on 12 August Caroline provided my clerk with a further manuscript document (the "second assignation") in the following terms: "I assign losses and gains and all rights in the action of division or sale A2113/02 to Caroline Kenneil. A Kenneil." Caroline did not present any argument under reference to the assignations but, taking the first assignation to have been intimated on its registration date and the second assignation to have been intimated towards the end of the hearing on 12 August, it did not appear to me that either document made any difference as to Caroline's entitlement to oppose the Reporter's motion. If Alistair has any claim, for example for damages, against the Reporter, the firm of Strutt & Parker and/or Shepherd and Wedderburn and if any such claim has not prescribed, then it may be that the first assignation confers title on Caroline to pursue such claim, but that would have to be by way of a separate action. I do not see it as impacting on the present process. The second assignation, apparently only executed in the course of the second hearing, may have been intended to substitute Caroline for Alistair in the action. I do not understand that it can have that effect. Alistair has been convened as a party to the action and the other parties and the Reporter are entitled to constitute the liability he has, as former pro indiviso proprietor, for the expenses of sale. In any event, Alistair did not mark opposition to the Reporter's motion when it was re-enrolled (he had opposed the motion when originally enrolled but then expressly withdrew that opposition). Alistair attended the second (although not the first) hearing of the motion but made no attempt to participate.

Caroline's complaints about misconduct

[31] At both hearings Caroline was anxious to impress upon me that she was deeply dissatisfied with the conduct of the sale of the Estate. She was highly critical of the Reporter's discharge of his duties as an officer of the court. Her complaints were diffuse and apparently complex. They were serious. They relate to alleged collusion among a number of parties. As I understand them, they are to the effect that Alistair, as proprietor of a one third pro indiviso interest in the property, and Caroline as his secured creditor, suffered loss by reason of his ability to implement a contract to purchase the whole property being compromised and, further, the subsequent sale being concluded on less than the best available terms, this all being due to unlawful actings on the part of the Reporter and others. I must stress that, as Lord Glennie stressed in his Opinion of 16 June 2006, the allegations are strenuously denied.

[32] In my opinion it is not open to me to explore Caroline's allegations in this process. The allegations have already been considered by Lord Glennie, albeit in the context of an argument on return of the deposit, on what might be regarded as a basis ("any realistic possibility of success") that was generous to Caroline. As appears from paragraph [23] of his Opinion of 16 June 2006, Lord Glennie found them not such as to offer any realistic possibility of success on the issue then under consideration, but also to be without the adequate basis that would be required before a solicitor or solicitor-advocate could properly advance them in court. As is demonstrated by the terms of the Opinion of 16 June 2006 and the previous interlocutors for which he is responsible, Lord Glennie has been satisfied with the conduct of the Reporter as an officer of the court. Critically, the Reporter having been authorised on 8 April 2005 to resile from the first missives, Lord Glennie, on 17 November 2005, authorised him to conclude missives with Caledonian. On 2 February 2006 Lord Glennie authorised the Reporter to retain from the proceeds of sale, an estimate of the expenses of sale (including his fee and outlays) and found Edan, Damon and Alistair liable for these expenses. On 9 June 2006 Lord Glennie approved the Interim Scheme of Division, number 92 of process, subject to taxation. Thus, having heard Caroline's allegations as to the Reporter's conduct of his duties, Lord Glennie has been satisfied that it has been appropriate to authorise the Reporter to continue with the sale and to find the Reporter entitled to his fees and outlays and, in particular, the outlays contained in Shepherd and Wedderburn's account.

[33] That the allegations have been canvassed before Lord Glennie and that he has held them to be as he describes in paragraphs [19] to [23] of his Opinion of 16 June 2006 confirm me in the view that this not a case where the court has any basis for investigating the conduct of one of its officers or further entertaining the suggestion that it should. That is without prejudice to any other remedy that Alistair or Caroline may have at their own instance but if they consider that they have a remedy against the Reporter or any other person, that will require to be pursued in a separate action, subject to the usual disciplines imposed by pleadings, the requirement to prove what is averred and liability for expenses in the event of lack of success. That Lord Glennie has pronounced the orders that he has, has the result that the Reporter is entitled to his fees (which I assume that he has already taken) and his outlays and expenses, including Shepherd and Wedderburn's fees, subject only to taxation. It is not competent for me to review or alter interlocutors previously pronounced by Lord Glennie.

Taxation

[34] The Reporter's motion is for approval of the Auditor's Report on his taxation of Shepherd and Wedderburn's account of fees. That Edan, Damon and Alistair are entitled to a taxation of the Reporter's solicitors' fees is undisputed. That is what the relevant interlocutors provide and that is what the (then) Auditor reports in number 101 of process has taken place.

[35] Caroline challenged the accuracy of the Auditor's description of what he had done. She referred to it as "an audit" rather than taxation. What she meant by that was that while she accepted that the Auditor had considered the reasonableness of the solicitors' fees in the light of the files sent to him by Shepherd and Wedderburn under cover of letter of 11 December 2006, there had been no hearing before the Auditor at which she, or anyone else with an interest, had had an opportunity to challenge the level of the fees charged.

[36] The factual basis for Caroline's submission was not contentious. It may be that what the Auditor did was a perfectly usual way of dealing with what was in very large part a conveyancing transaction but there was no diet of taxation. Caroline said that she understood that there would be and so did Shepherd and Wedderburn, as appears from their letter of 9 October 2006, a copy of which is contained in the Summary number 109 of process. In that letter Shepherd and Wedderburn requested that a diet of taxation be fixed. That is what the Auditor is required to do in terms of paragraph 3.1 of Practice Note 3 of 1993 when what is submitted to him is a judicial account. The paying party must then intimate points of objection three days before the diet as required by paragraph 4.1. It may be that that did not happen because what was submitted was an account in the form of conveyancing fee notes as vouched by the files, rather than a time and line judicial account in the familiar form. That the Principal Clerk to the Auditor advised Caroline by letter of 15 November 2006 that once taxation was completed and the Auditor had reported to the court, Caroline would have the opportunity of challenging the reasonableness of the expenses of sale does not make matters any more straightforward. How Caroline, or anyone, was to go about challenging the reasonableness of the bare figure provided in the Auditor's report, is not explained by the Principal Clerk to the Auditor. Counsel was not able to explain to me what the Principal Clerk may have had in mind.

[37] Had she had such an interest as entitled her to taxation of Shepherd and Wedderburn's account, I can understand why Caroline might consider that she has been denied a fair hearing but Caroline is not a paying party. None of those who are paying parties have opposed the Reporter's motion for approval of the Auditor's Report. They may be taken to be content with the taxation carried out by the Auditor. That alone appears to me enough to justify my approving the Report number 101 of process and otherwise granting the Reporter's motion. There are, however, additional considerations which have confirmed for me the rightness of disposing of the Reporter's motion in that way and refusing Caroline's motion.

[38] Caroline has not satisfied me as to her status as unpaid creditor in respect of formerly secured debt. She has therefore failed to demonstrate that she has an interest in requiring a taxation or further taxation of the account but even if I were wrong in adopting that approach it does not appear to me to be appropriate to order a further taxation and a further taxation is what it would be, given that the then Auditor has certified that he has taxed the fee. On listening to her submissions, it was by no means clear to me that what Caroline wanted was a taxation or, to put it slightly differently, that she would be satisfied with a further taxation. Taxation is the process by which the Auditor, either of the Court of Session or a particular Sheriff Court, scrutinises accounts of expenses to ensure that the fees charged are charged according to the appropriate scale, if one applies, and that the fees charged were necessarily and reasonably incurred. Caroline made clear that what she wanted went well beyond that. When asked by me what it was that she wished should be done, her reply was that she did not wish to go to taxation but, rather, to have a hearing in court, at no cost to any party, at which matters arising from the account could be gone into. When pressed for an alternative position she said that she wished the opportunity to see all the files with a view to assessing whether what was charged seemed reasonable and then coming back to court to discuss matters, again on a no cost basis. This appeared to me to be a request for an enquiry at large into the conduct of the sale which it is not the function of the court to carry out. Caroline's wish that further procedure be on a no cost basis is not realistic in that whenever the Reporter is called on to participate in the court process this inevitably results in expense which, in the absence of any alternative, would fall on the paying parties. Counsel accepted that the former Auditor might have proceeded otherwise but he had carried out what he regarded as a taxation and had been paid a fee of £6860 for his work. That had been paid by the Reporter who would of course look to recover it from the paying parties in that an order for taxation always carries the cost of the taxation. Counsel submitted that further procedure would involve considerable time and expense for no likely benefit. I agree with that submission.

Conclusion

[39] I shall grant the Reporter's motion and refuse Caroline's motion. I shall reserve all questions as to the judicial expenses consequent upon the hearings before me.